2004 Fall, 16. State v. Bortner: New Hampshire Begins to Develop Law on Immunity and Cooperation Agreements in Criminal Cases.

AuthorBy Kate Morneau

New Hampshire Bar Journal


2004 Fall, 16.

State v. Bortner: New Hampshire Begins to Develop Law on Immunity and Cooperation Agreements in Criminal Cases

New Hampshire Bar Journal Fall 2004, Volume 45, Number 3 State v. Bortner: New Hampshire Begins to Develop Law on Immunity and Cooperation Agreements in Criminal Cases By Kate Morneau INTRODUCTION

On February 2, 2004, the New Hampshire Supreme Court decided State v. Amanda Bortner.1 One of the major issues on appeal was the enforcement of her cooperation and immunity agreement with the State. Bortner testified at her boyfriend's trial. He was accused of killing her toddler daughter, Kassidy. Her agreement with the State provided that if she cooperated with the State and testified regarding the death of her daughter, the State would not prosecute her. Alleging breach of the agreement, the State prosecuted her and the court upheld her conviction. Under the terms of the agreement, Bortner was obligated to provide "truthful, candid, and complete" information.2 The agreement further stated that Bortner would be in breach of the agreement if she made a material false statement or omission. In the event of "such a breach, or any other breach of this agreement," the State would be released from its obligations.3 Bortner is the first case in New Hampshire to address a cooperation and immunity agreement.

While New Hampshire has a statute governing the grant of use immunity when necessary to compel testimony from an unwilling witness,4 immunity arising from a voluntary cooperation agreement is a matter of prosecutorial discretion and common-law principles. Until the Bortner case, the New Hampshire Supreme Court had not addressed voluntary immunity agreements. Similar issues have arisen in cases regarding plea bargains. The New Hampshire Supreme Court relied on the principles developed in the plea bargain cases to provide guidance for this new issue. State v. O'Leary5 and State v. Little6 and are New Hampshire's leading cases on such agreements and the starting points for the court's analysis in Bortner.7


In O'Leary the court took an opportunity to begin shaping the law of prosecutorial agreements. The defendant claimed there had been a plea agreement and sought an order from the trial court enforcing it. It was denied, there was a trial on the merits, and an appeal. Although the record suggested the prosecutor's offer was revoked before the defendant's attempted acceptance,8 the Supreme Court addressed the appropriate remedies for breach of such an agreement. The defendant wanted specific performance, but the court held that, absent some constitutionally significant detrimental reliance,9 the remedy for prosecutorial breach of a plea bargain is withdrawal of the plea. Implicitly, the "remedy" for breach by the defendant is a trial. Although cited in Bortner, O'Leary's only apparent relevance was the tacit adoption of the contract model for analyzing prosecutorial agreements.

Eight years after O'Leary, the New Hampshire Supreme Court held in Little that a prosecutor can be required to make an agreed sentencing recommendation after the defendant pleads guilty. However, on a second appeal after re-sentencing, the court held that other prosecutorial conduct at the sentencing hearing did not amount to a breach of the agreement.10 Little claimed that the prosecutor's tactics and conduct at the second sentencing hearing substantially undermined the recommendation he gave. The court cited O'Leary and indicated there were two preliminary questions before addressing the alleged breach. The first was whether there was an agreement. Both parties agreed that a plea agreement did exist. Second, the court had to determine the specifics terms as Little, the defendant, reasonably understood them.11 The specific terms were that the prosecutor would "recommend a prison term of five to fifteen years with two and one-half years suspended upon successful completion of the prison treatment program."12 Because the prosecutor's presentation...

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