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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: _______

Filing Date: August 7, 2014

Docket No. 33,296

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

JULIAN GUTIERREZ,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Drew D. Tatum, District Judge

Daniel R. Lindsey, P.C.

Daniel R. Lindsey

John L. Collins, Jr.

Clovis, NM

for Petitioner

Gary K. King, Attorney General

Martha Anne Kelly, Assistant Attorney General

Santa Fe, NM

for Respondent

OPINION

DANIELS, Justice.

{1} This case involves factually related issues of the boundaries between proper and

improper prosecutorial conduct in dealing with recalcitrant witnesses and of the

circumstances in which a mistrial and retrial may take place without violating constitutional

double jeopardy protections when a witness does not appear for trial. Following federal

double jeopardy principles in United States Supreme Court precedent, we conclude that a

prosecution witness’s failure to appear for Defendant’s trial did not constitute manifest
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necessity for granting a mistrial after a jury had been selected and sworn to hear his case.

Because empaneling a new jury and retrying Defendant would violate his double jeopardy

protections under the United States Constitution, we remand to the district court with

instructions to dismiss. Because of our holding, we do not decide any issues relating to the

scope of the Double Jeopardy Clause of the New Mexico Constitution or whether the

prosecution team inappropriately threatened the witness.

I. BACKGROUND

{2} A Curry County grand jury indicted Defendant Julian Gutierrez on three counts of

criminal sexual contact of a minor, contrary to NMSA 1978, Section 30-9-13(B)(2)(a)

(2003), based on the testimony of Defendant’s daughter that he touched or pinched her

breasts on several occasions when she was fifteen years old. At the time of the alleged

incidents, Defendant was estranged from his daughter’s mother, who lived in Lubbock,

Texas. After Defendant’s indictment, his daughter moved out of their home to stay next door

with her paternal grandparents.

{3} On Monday morning, February 23, 2009, the first scheduled day of trial, Defendant

informed his attorney that he had been provided with a statement written by his daughter that

related to a recent visit by prosecution representatives to her school. In its entirety, the

statement said,

The da was telling me that if I didnt go to the court they could take my son

away. and she was try to say that my dad touched me 6 time and I had told

her that I told the oaisis people that he just did it 3 time and that we were just

playing. and she said that 6 times is closer to 3 time and she told my principle

and counsler that if it was OK for them to pick me up tuesday morning at

8:30 and I told them that they have to ask my parents first and she told me

that they dont. and she had also made me put my phone on the desk. She

would not allow anyone in the room with us. They were telling me that my

grandparents house wasnt a good place for me to be staying. Was telling me

that I could get charges on me if I change my story. and that I have someone

to think about now that I have to make a good choice of what I want.

February 20, 2009

/s/ Naomi Gutierrez

When defense counsel asked for a hearing on the new revelations, the prosecutor admitted

not having disclosed to the defense anything about the pretrial encounter at which the

daughter attempted to recant her grand jury testimony. After initially taking the position that

she did not have to do so, the prosecutor ultimately agreed to provide the defense with an

audio recording of the incident. The district court refused a defense request to conduct an

immediate hearing on the matter, proceeded to select and swear a jury to hear the case, and

recessed for the day, with testimony to begin the next day, Tuesday, February 24.
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{4} The next morning, when Defendant’s daughter did not appear to testify and the State

could not locate her, the State asked the district court to make a finding of manifest necessity

and declare a mistrial. Defendant objected to granting a mistrial and moved instead to

dismiss with prejudice on the ground that the State’s officers committed prosecutorial

misconduct in inappropriately threatening the daughter during their private encounter at the

school. Without ruling on the motions or proceeding further with the trial, the court issued

a bench warrant for the daughter’s arrest for failure to appear for trial and, despite the

defense’s argument that it was ready to go forward that day, temporarily released the jury.

{5} At a brief hearing two weeks later, the daughter still not having been located, the

district court declared a mistrial over the objection of the defense and permanently

discharged the jury. The court rejected Defendant’s argument that determining manifest

necessity required considering the “intertwined” matter of prosecutorial misconduct in the

encounter with the daughter, saying that it would address the propriety of that encounter

separately “at a later date.” The court made no findings that Defendant contributed in any

way to the daughter’s nonappearance for trial or that the prosecution was unaware its witness

might not appear for trial when the jury was sworn, finding simply that there had been “a

jury fully empaneled and sworn and the victim having been served a subpoena then failed

to appear” and concluding that there was “manifest necessity for retrial.”

{6} After the daughter had been arrested on the bench warrant two weeks later, the court

held hearings on Defendant’s motions to dismiss for prosecutorial misconduct and to

preclude retrial for lack of manifest necessity justifying the mistrial. Evidence presented at

the hearings included an audio recording of the school encounter three days before trial, the

live testimony of the daughter, and the live testimony of the police detective who had

participated with the prosecutor and the district attorney’s victim advocate in questioning

the daughter at her school.

{7} The daughter, who appeared with her separate attorney, testified that a few days

before the scheduled trial the State’s officials had her removed from class and taken to “the

officer’s room . . . inside the main office” where the door was locked and her cell phone was

removed from her immediate possession. Her testimony focused on threats by the State’s

officers to file perjury charges against her and take away her young son after she told the

prosecutor that her mother had influenced her to make false charges against her father. She

testified that the threats scared her and caused her not to show up for the jury trial several

days later. After the school encounter, she wrote and delivered to her own lawyer the letter

that was delivered to defense counsel the morning of jury selection.

{8} The detective admitted participating in the confrontation at the school at the request

of the lead prosecutor and admitted that the State’s representatives raised questions about

what might happen to the daughter’s baby but denied that anything they said constituted a

threat. His testimony emphasized that the State’s officers were trying to get the daughter to

tell the truth. Neither the prosecutor nor the district attorney’s victim advocate, the other two

participants in the school questioning, testified.
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{9} Although the State had alleged in its brief requesting a mistrial that Defendant had

been in some way responsible for the nonappearance of his daughter, the record contains no

substantial evidence supporting the allegation. The daughter testified that her father had

nothing to do with her not showing up for court and that the only reason she did not appear

was because the prosecutor threatened to take her son away. In addition, a filed affidavit by

a boyfriend of the daughter represented that it was his idea alone to take her to Texas after

she told him tearfully “that she wanted to leave” because the prosecution had threatened “to

take her child away” and “charge her with perjury if she did not testify the way they

wanted.”

{10} The most objective and complete evidence of the school encounter introduced

at the hearing was the verbatim audio recording created by the State’s officers. It contained

corroboration for parts of what had been described in the testimony, both the friendly

admonitions to tell the truth and the warnings that the daughter could be prosecuted for

perjury and that her two-year-old son could be taken from her if she did not appear at trial

and testify consistently with her previous grand jury testimony.

{11} The audio recording begins with the prosecutor advising the daughter that “the reason

we came here is because you didn’t show up for our meeting” and confirming that the

daughter had received her subpoena and continues with the district attorney’s victim

advocate reminding the daughter of her previous warnings that she “had to show up” in court

if she received a subpoena. After the prosecutor said she wanted to go over the expected

testimony, the daughter attempted to recant her prior allegations, saying that she had

fabricated her grand jury testimony because her mother had influenced her to do so.

Daughter: Actually, my mom’s the one that told me to tell ya’ll that.

Prosecutor: That you were going to get into trouble?

Daughter: No. That, to tell ya’ll what happened.

Prosecutor: Did your mom tell you to tell the truth?

Daughter: Mmm, no. She just said tell them that. She didn’t say to tell

them the truth.

Prosecutor: Okay what is the truth?

Daughter: That he didn’t do nothing.

Prosecutor: What do you mean he didn’t do nothing?

Daughter: He didn’t touch me or nothing.

Prosecutor: Okay. You gave your statement under oath at the grand jury

that [Defendant] did touch you.

Daughter: I know, because my mom had told me to.

. . . .

Prosecutor: So when you talked to Mr. Baskett at The Oasis [Children’s Advocacy

Center], were you lying?

Daughter: M-hm, because my mom had told me. It’s on the messages that the

detective has.

. . . .
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Prosecutor: So what is the truth?

Daughter: That he didn't do nothing.

Prosecutor: Okay. Why did you say that he did?

Daughter: Because I wanted to go live with my mom, but now I don’t.

{12} After expressing their concerns that family members may have been pressuring her

to change her story and testify falsely, the prosecutor and the investigator then had the

following exchange with the daughter:

Prosecutor: Remember, I talked to you and you swore, and if you say that

it didn’t happen in court this week,

Daughter: um-hmm,

Prosecutor: then we can charge you with perjury for lying before. Do you

realize that? Is that what you want to do? Do you want to be

faced with charges?

Daughter: No.

. . . .

Investigator: And what you need to be, what you need to be concerned

with is you don’t, you need to be concerned with yourself,

and, and I guess you have a baby. Is that correct?

Daughter: Um-hmm.

{13} The investigator and the victim advocate continued:

Advocate: So you’re willing to get in trouble.

Investigator: Why would you do that? If you get into trouble where’s your

baby gonna go?

Daughter: Um, I don’t

. . . .

Investigator: So, you’re saying you’re willing to get in trouble?

Daughter: Um-hmm.

Investigator: If you get into trouble, then your child is going where?

Daughter: To a home.

Investigator: Is that what you want?

Daughter: No.

Investigator: But you’re not willing to do anything about it. Is that what

you’re saying?

{14} Following these exchanges, the daughter yielded and partially recanted her

recantation, telling the State’s officers, “he did touch me, but we were playing.” During the

exchange, the advocate cautioned, “you just don’t change your story, hon.” Before ending

the encounter, the State’s investigator warned the daughter of the likely outcomes for her

two-year-old son if she failed to testify appropriately:
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Investigator: And, and if you don’t do what’s right or you, you don’t get up

there and say what you told [the prosecutor] just now, . . .

you’re putting your son in a situation that, number one, he has

absolutely no control over.

Daughter: I know.

Investigator: Number two, that he’s ultimately . . . , well, I can tell you at

two years old, you think if some, some stranger comes and

picks him up,

Daughter: um-hmm,

Investigator: he’s not gonna like that.

Daughter: Yeah.

Investigator: Okay. But that’s not just gonna stop right there. Just, you

don’t like it. Don’t let it happen to your son. Okay?

{15} After the prosecution team told the daughter they would help her and would be there

with her at court, the prosecutor told her they would pick her up at school and take her to

trial to testify the following Tuesday morning.

{16} The district court ultimately denied Defendant’s motions to dismiss for prosecutorial

misconduct in the school encounter and reaffirmed without further findings its earlier

manifest necessity mistrial ruling, but vacated the scheduled retrial to permit Defendant to

appeal.

{17} The Court of Appeals affirmed the district court, holding both that the conduct of the

State’s officers did not constitute prosecutorial misconduct and that Defendant’s federal and

state constitutional protections against double jeopardy were not violated because manifest

necessity justified a mistrial when Defendant’s daughter failed to appear as a witness after

the first jury was sworn. See State v. Gutierrez, 2012-NMCA-013, ¶¶ 23, 36, 269 P.3d 905.

We granted certiorari to review those rulings. See State v. Gutierrez, 2012-NMCERT-001.

II. DISCUSSION

A. Double Jeopardy

{18} Both the United States Constitution and the New Mexico Constitution guarantee that

a state may not compel a person to be “twice put in jeopardy” for the same criminal offense.

U.S. Const. amend. V; N.M. Const. art. II, § 15; see Benton v. Maryland, 395 U.S. 784, 787,

794, (1969) (holding that the Fourteenth Amendment secures to defendants in state

prosecutions the protections of the Double Jeopardy Clause of the Fifth Amendment,

overruling Palko v. Connecticut, 302 U.S. 319 (1937)). Because Defendant has invoked the

protections of both constitutions, we apply our interstitial analysis and consider first whether

the federal claim is dispositive before conducting a state constitutional analysis. See State

v. Lopez, 2013-NMSC-047, ¶ 8, 314 P.3d 236 (noting that where an asserted right is

protected by the federal constitution, there is no need to reach the counterpart state
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constitutional claim).

{19} The Double Jeopardy Clause of the United States Constitution not only guarantees

that

the State with all its resources and power should not be allowed to make

repeated attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity, as well as enhancing the

possibility that even though innocent he may be found guilty,

but also protects “the defendant’s valued right to have his trial completed by a particular

tribunal.” Cnty. of Los Alamos v. Tapia, 1990-NMSC-038, ¶ 16, 109 N.M. 736, 790 P.2d

1017 (internal quotation marks and citations omitted), overruled on other grounds by City

of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 25, 285 P.3d 637. “Consequently, as a general

rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to

stand trial.” Arizona v. Washington, 434 U.S. 497, 505 (1978).

{20} There is no question in this case that jeopardy attached at the moment the district

judge swore the jury. Just a few weeks ago, the United States Supreme Court again

reaffirmed what it has “consistently treated as a bright-line rule: A jury trial begins, and

jeopardy attaches, when the jury is sworn,” whether or not a single witness is ever called to

testify. Martinez v. Illinois, __ U.S. __, __, 134 S. Ct. 2070, 2075-77 (2014) (per curiam)

(holding that the Double Jeopardy Clause precluded retrial of a defendant after the first jury

was sworn, even though no evidence was presented as a result of the prosecution’s inability

to procure attendance of its key witnesses).

{21} The only double jeopardy issue in serious contention in this case is whether the

district court correctly determined that there was “manifest necessity” for discontinuing the

first trial and discharging the jury that had been sworn to try the case because of the

nonappearance of an important prosecution witness. While manifest necessity mistrial

rulings are reviewed for abuse of discretion, see Callaway v. State, 1990-NMSC-010, ¶¶ 8-

10, 109 N.M. 416, 785 P.2d 1035 (reversing conviction after retrial and remanding for

release of the defendant for failure of the district court judge to “exercise a sound discretion”

in determining manifest necessity for declaring a mistrial), the United States Supreme Court

has made it clear that “the strictest scrutiny is appropriate when the basis for the mistrial is

the unavailability of critical prosecution evidence.” Arizona v. Washington, 434 U.S. at 508,

515-16 (holding that an effective finding of manifest necessity was an exercise of “sound

discretion” where defense misconduct in raising inadmissible and prejudicial matters before

the jury created “the ‘high degree’ of necessity” for the mistrial); see also United States v.

Fisher, 624 F.3d 713, 720, 723 (5th Cir. 2010) (“hold[ing] that there was no manifest

necessity,” concluding that federal law does not apply a deferential standard of review “in

an unavailable-government-witness case,” and noting that all of the other eight federal

circuits deciding the issue have applied the Arizona v. Washington “strictest scrutiny”
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standard).

{22} The manifest necessity standard has been a part of double jeopardy jurisprudence for

most of our nation’s history. See United States v. Perez, 22 U.S. (9 Wheat) 579, 580 (1824)

(requiring courts “to exercise a sound discretion” in determining manifest necessity “to

discharge a jury from giving any verdict” and initiate a new trial). “The classic example [of

the need for a second trial] is a mistrial because the jury is unable to agree.” Downum v.

United States, 372 U.S. 734, 736 (1963) (citing Perez). When the situation involves a

deadlocked jury, “the trial judge should be allowed broad discretion whether to declare a

mistrial,” but “when the basis for the mistrial is the unavailability of key prosecution

evidence or when there is reason to believe that the prosecutor is attempting to harass or gain

a tactical advantage over the defendant, the strictest scrutiny is necessary.” State v.

Saavedra, 1988-NMSC-100, ¶¶ 9, 16, 108 N.M. 38, 766 P.2d 298 (emphasizing that a

“prosecutor must shoulder a heavy burden to justify the mistrial if the double jeopardy bar

is to be avoided” but not reversing the district court’s finding of manifest necessity where

defense counsel was stricken with illness during trial and where the evidence supported the

trial court’s findings that neither a rescheduling with the existing jury nor other alternatives

to a mistrial were feasible).

{23} The United States Supreme Court has not been hospitable to claims of manifest

necessity resulting from missing prosecution witnesses. In Downum, the Court held that

there was no manifest necessity justifying a mistrial immediately after a jury was sworn

when the prosecution discovered that a key witness was not present to testify, concluding

that where the prosecutor “impaneled the jury without first ascertaining whether or not his

witnesses were present, he took a chance” and could not avoid the consequences of his

gamble that the witness would appear. See 372 U.S. at 737 (internal quotation marks and

citation omitted). The Court therefore held that the Double Jeopardy Clause barred a retrial.

See id. at 737-38.

{24} In this case, our Court of Appeals distinguished Downum and held that in the absence

of evidence that the prosecution knew its key witness would be unavailable to testify,

manifest necessity would justify a mistrial when the witness did not appear. See Gutierrez,

2012-NMCA-013, ¶¶ 14, 18. The opinion below did not address the language in Downum

indicating that its principle would apply even where the prosecution discovered

“immediately after the jury was impaneled” that its “evidence was insufficient.” See

Downum, 372 U.S. at 737-38. Downum left some room for doubt as to its holding, however,

by also explicitly refusing “to say that the absence of witnesses ‘can never justify

discontinuance of a trial.’” Id. at 736-37 (quoting with approval Wade v. Hunter, 336 U.S.

684, 685, 687-88 (1949), in which a court martial had to be stopped and begun anew during

the Third Army’s rapid advancement across German territory in World War II because “the

tactical problems of an army in the field were held to justify the withdrawal of a

court-martial proceeding and the commencement of another one on a later day”).

{25} Whatever ambiguities may have been created by Downum have now been
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substantially lessened by the United States Supreme Court’s recent unanimous opinion in

Martinez, handed down after the Court of Appeals opinion was filed in this case. Martinez

was an aggravated battery and mob action prosecution in which the state had gone to great

lengths to secure attendance of two reluctant key witnesses, placing both under subpoena and

having them come before the court to be ordered to appear for trial. See 134 S. Ct. at 2072.

On the morning of the final rescheduled trial and before jury selection, the state moved for

a continuance because the witnesses once again had failed to appear. See id. After giving the

state some time to locate its witnesses while jury selection and other matters were addressed,

the trial court denied another continuance and announced it was going to swear the selected

jury and begin the trial unless the state chose instead to voluntarily dismiss its case before

jeopardy attached. See id. Instead of dismissing and avoiding having the jury sworn, the state

advised the court that it would “not be participating in the trial.” See id. at 2073. After the

jury was sworn and the State declined to make an opening statement or introduce evidence,

the court granted a directed verdict and ordered the charges dismissed. See id.

{26} The Illinois Supreme Court reversed, holding that the trial court erred in denying the

requested continuance and that because the defendant had never truly been placed in

jeopardy where the State refused to proceed before the sworn jury, the Double Jeopardy

Clause did not protect him against continued prosecution. See id. at 2073-74.

{27} The United States Supreme Court reversed the Illinois Supreme Court, applying its

bright-line test in holding that jeopardy attached at the moment the jury was sworn, whether

or not the prosecution ever called a witness or participated in any other way in the trial. See

id. at 2074-75. Although the Court expressly based its holding in part on the fact that the trial

court’s actions, however named, constituted an acquittal under controlling precedents, id.

at 2076, it followed with several pointed observations that are instructive in interpreting both

Martinez and Downum. First, it rejected unrestricted judicial discretion that would allow

routine witness unavailability to bar protection from retrial:

Indeed, even if the trial court had chosen to dismiss the case or declare a

mistrial rather than granting Martinez’s motion for a directed verdict, the

Double Jeopardy Clause probably would still bar his retrial. We confronted

precisely this scenario in Downum v. United States, 372 U.S. 734 . . . (1963),

holding that once jeopardy has attached, the absence of witnesses generally

does not constitute the kind of “‘extraordinary and striking circumstanc[e]’”

in which a trial court may exercise “discretion to discharge the jury before

it has reached a verdict.” Id., at 736 . . . ; see also Arizona v. Washington, 434

U.S. 497, 508, n.24 . . . (1978).

Martinez, 134 S. Ct. at 2076 n.4 (alteration in original).

{28} In addition, in terms equally applicable to the case before us, the Court emphasized

that its view of the binding constitutional effect of swearing a jury for the trial of an accused

need not result in “unfairness to prosecutors or to the public.” See id. at 2076. The Court
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acknowledged lawful alternatives for prosecutors to avoid the strictures of the Double

Jeopardy Clause when they may find themselves without necessary witnesses, such as (1)

seeking continuances, (2) requesting that jury swearing be postponed until the appearance

of needed witnesses can be assured, and (3) as a last resort, voluntarily dismissing the case

before the trial judge swears the jury. See id. at 2076-77. But when “the State declined to

dismiss its case, it took a chance[,] . . . enter[ing] upon the trial of the case without sufficient

evidence to convict.” Id. at 2077 (alterations and omission in original) (internal quotation

marks omitted) (quoting Downum, 372 U.S. at 737).

{29} If there is any reason to doubt that essential witnesses might not appear for trial,

prosecutors should ensure their presence before the jury is sworn. In this case, there was

substantial reason to question whether the daughter would appear. She had already failed to

appear at a scheduled pretrial interview at the district attorney’s office, resulting in a

prosecution team making a surprise visit to her school, having her pulled out of class and

cautioning her about her obligation to appear in response to the subpoena. She had attempted

to recant her accusations against her father. The prosecution team expressed concern several

times in the private encounter about arrangements for the daughter to appear for trial, telling

her they would personally transport her to court. And even before jury selection began, the

prosecution learned of the daughter’s handwritten declaration, which began with “The da

was telling me that if I didnt go to the court they could take my son away.” A simple request

that the judge not swear the jury until the key witness appeared at the courthouse, especially

where the prosecution had chosen to subpoena the witness to come to court the day after jury

selection, would have avoided the attachment of constitutional jeopardy. Instead, the

prosecution took a calculated risk and “proceeded to trial in the face of a known risk that [the

witness] would be unavailable at trial.” Walck v. Edmondson, 472 F.3d 1227, 1231, 1239

(10th Cir. 2007) (prohibiting a retrial after the trial judge granted a mistrial when an

important government witness went into labor two weeks early).

{30} Trial judges also should be mindful of the constitutional consequences of swearing

the jury and should consider delaying that significant step if there is a question whether the

trial will be able to continue to completion. In this case, once the court realized there were

issues to address regarding a recalcitrant witness, it could have released the selected jurors

with appropriate admonitions and instructions to return the next morning to be sworn and

begin hearing the case and then could have released the unsworn prospective jurors without

double jeopardy consequences when the witness did not appear as scheduled. Once the jury

has been sworn and jeopardy has attached, declaration of a mistrial should be avoided,

particularly in the case of a missing witness. Postponing the permanent discharge of the jury

until the daughter was located just two weeks later would have at least avoided the serious

double jeopardy problem that the declaration of mistrial created in this case.

{31} In this case, Defendant never consented to a mistrial, vigorously opposing it at every

opportunity. And because the district court did not find that Defendant procured the

nonattendance of the witness, we do not address whether such a hypothetical scenario could

justify a mistrial and retrial where the first sworn jury is discharged over the objection of a
11

defendant. This case boils down to a straightforward missing prosecution witness case

without a district court finding of extraordinary circumstances. Applying the federal strictest

scrutiny test and the guidance of the United States Supreme Court in Downum and Martinez,

we conclude that the district court abused its discretion in declaring a mistrial under the

circumstances of this case and that the federal Double Jeopardy Clause therefore precludes

further prosecution of Defendant. Because of that dispositional holding, we need not

consider whether the Double Jeopardy Clause of the New Mexico Constitution would

provide even greater protection than its federal counterpart. See State v. Ketelson, 2011-

NMSC-023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (allowing consideration of the possible

broader protections of the New Mexico Constitution where the United States Constitution

does not protect the right that Defendant claims).

B. Prosecutorial Misconduct

{32} We also need not decide whether Defendant is correct that the prosecution team’s

conduct at the daughter’s school constituted bad faith misconduct requiring dismissal, and

we therefore make no determination that the prosecution team acted out of bad motives or

with intent to have the witness testify falsely. Cf. State ex rel. Brandenburg v. Blackmer,

2005-NMSC-008, ¶ 2, 137 N.M. 258, 110 P.3d 66 (holding that “a victim advocate

employed by a district attorney’s office is part of the prosecution team”); State v.

Wisniewski, 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d 1031 (noting that police

officers involved in a case are part of the prosecution team). But we caution that lawyers or

the agents of lawyers representing any party must avoid intimidating prospective witnesses

or pressuring them to testify in a particular way, regardless of a lawyer’s personal belief

about what is true and what is not. The State is correct in its position that simply advising

a witness about the realities of the perjury statutes is not sanctionable misconduct. See State

v. Baca, 1997-NMSC-045, ¶¶ 35-36, 124 N.M. 55, 946 P.2d 1066 (holding that where there

is “nothing threatening or coercive” about the communication, “[i]t is not improper to merely

advise a witness that he could face prosecution for perjury”), overruled on other grounds by

State v. Belanger, 2009-NMSC-025, ¶¶ 35-36, 146 N.M. 357, 210 P.3d 783. However,

anything beyond a simple and neutral advisement, even when conducted by a judicial officer,

can cross permissible boundaries. See, e.g., Webb v. Texas, 409 U.S. 95, 97-98 (1972)

(holding that a trial judge’s warnings to a defense witness about the dangers of perjury

infringed on the defendant’s due process rights where the judge not only provided

information of the consequences of perjury but also implied that the judge believed the

witness would lie and assured the witness that if he lied he would be prosecuted for perjury

and probably convicted); United States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991)

(explaining that, while no constitutional violation occurs where a prosecutor simply provides

“an unrepresented defense witness” with a truthful warning, there is a strong inference of

impropriety where “the substance of what the prosecutor communicates to the witness is a

threat over and above what . . . [is] timely, necessary, and appropriate” (internal quotation

marks and citation omitted)); United States v. Morrison, 535 F.2d 223, 227-28 (3d Cir. 1976)

(noting that the actions of a prosecutor who repeatedly warned a prospective defense witness

about the possibility of perjury charges and conducted “a highly intimidating personal
12

interview” of the witness were completely unnecessary and violated the defendant’s

constitutional right to have the witness give evidence in the defendant’s favor). We have

found no precedent in this state or elsewhere that condones going beyond merely advising

a witness of direct perjury consequences to raise the specter of collateral consequences, such

as losing custody of one’s own child.

{33} In addition to the reported cases disapproving the intimidation of defense witnesses

by inappropriate threats, similar principles apply to attempts to shape the testimony of a

party’s own witness. The federal court in United States v. Juan, 704 F.3d 1137, 1140 (9th

Cir. 2013), dealt with a situation in which the alleged victim, called to testify by the

prosecution in a domestic violence case, attempted to recant previous accusations against her

husband and then recanted her recantation after prosecutors raised the prospect of perjury

charges with the wife’s attorney. Although the court held that the defendant did not prove

that any allegedly improper prosecution threats were relayed to the witness by her attorney,

it pointedly cautioned,

We have often stressed the imperative that prosecutors and other officials

maintain a posture of strict neutrality when advising witnesses of their duties

and rights. Violating this duty by bullying a prosecution witness away from

testimony that could undermine the government’s case is no less distortive

of the judicial fact-finding process than improperly meddling with the

testimony of a defense witness. Regardless of whose witness is interfered

with, the constitutional harm to the defendant is the same—the inability to

mount a fair and complete defense. We see no reason to doubt that the

government’s substantial interference with the testimony of its own witnesses

can violate the Due Process Clause.

See Juan, 704 F.3d at 1141-42 (internal quotation marks and citation omitted); see also

United States v. Scheer, 168 F.3d 445, 458 (11th Cir. 1999) (reversing a conviction as a

result of the prosecution’s private intimidation of its own witness).

{34} Like the court in Juan, although we make no determination of misconduct we caution

prosecutors—and defense counsel as well—to avoid attempts to pressure witnesses into

changing their testimony, no matter what subjective good faith may arguably motivate their

efforts. Addressing perceived falsity in a more aggressive manner should take place in open

court and not in private encounters beyond the perception of the court and opposing counsel.

III. CONCLUSION

{35} Under the Double Jeopardy Clause of the United States Constitution, there was no

manifest necessity for releasing the sworn jury in this case and subjecting Defendant to a

second trial. We reverse the contrary decisions of the courts below and remand with

instructions to dismiss Defendant’s indictment.
13

{36} IT IS SO ORDERED.

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CHARLES W. DANIELS, Justice 

WE CONCUR:

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BARBARA J. VIGIL, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice