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Bar Journal - Fall 2004

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



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 Although the record suggested the prosecutor’s offer was revoked before the defendant’s attempted acceptance,8 the Supreme Court addressed the appropriate remedies for breach of such an agreement.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 of the case and cross-examination of witnesses undermined the recommendation, Little argued that the prosecutor had breached the agreement. The court held that this is a mixed question of law and fact because the prosecution’s performance depended on both verbal and nonverbal actions.13

The court wrote that the prosecutor’s conduct must meet the "most meticulous standards of both promise and performance" when engaged in plea-bargaining.14 However, after examining all of the actions that Little cited as violations of the agreement, the court deferred to the trial court and upheld its finding that there was no breach.15

O’Leary and Little are the seminal cases that the court relied on in Bortner. Although they both focused on a plea agreement, their framework can be used to analyze an alleged breach of a cooperation and immunity agreement.

In Bortner, the defendant argued that she did not materially breach the cooperation and immunity agreement and the "trial court should have enforced the cooperation agreement and dismissed the charges against her." 16 Her statements to investigators after the agreement were inconsistent with those given before and were less incriminating. The degree of inconsistency and its effects were disputed. The defendant argued that she "did not breach the cooperation agreement because her minimizations and inconsistent statements were not material."17 Both the State and Bortner agreed that the court should apply the principles developed in O’Leary and Little.18

Accepting this, the court quoted from Little: "[w]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled,"19 and "the most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining."20

The court started with the two preliminary steps set out in O’Leary and Little: whether there was an agreement and, if so, what were the specific terms, as the defendant reasonably understood them.21 The cooperation and immunity agreement stated that for Bortner’s "complete and truthful cooperation during the prosecution of Chad Evans" the State would not prosecute her.22 The State’s promise not to prosecute Bortner was contingent upon her complying with obligations set forth in the agreement. The agreement provided that Bortner

[M]ust at all times provide information or testimony within the scope of this agreement that is truthful, candid, and complete. Making a material false statement or omission will constitute a breach of this agreement. In the event of such a breach, or any other breach of this agreement, the State of New Hampshire will be released from all its obligations hereunder and may initiate prosecution against [Bortner] for any crimes relating to the death of Kassidy Bortner or any injuries sustained by Kassidy Bortner before her death.23

The issue was whether the defendant breached the agreement. Following her daughter’s death Bortner was interviewed four times by a detective and once by a police sergeant. Her statements were, "for the most part, consistent,"24 and incriminating of Evans. After making the cooperation agreement, Bortner was interviewed again and changed her story in several respects. The court cited four inconsistencies between these interviews. First, before the agreement she said "an angry Evans held Kassidy’s head under a faucet." 25 Afterward Bortner altered her statement claiming that, "Evans simply splashed water on Kassidy’s face." 26 Second, Bortner originally claimed that, "Evans grabbed Kassidy by the back of the neck, tossed her into a corner and banged her head on the closet."27 Later she minimized this roughness. Her third inconsistent statement was regarding the bruising of Kassidy’s face. At first, Bortner explained that the bruises on Kassidy’s face were from, "Evans grabbing her face and pinching it when he disciplined her."28 Following the agreement she said that only once did Evans actually bruise Kassidy’s face from his conduct. Forth, she originally told the sergeant about how she and Evans had concocted a story to explain the bruising on Kassidy’s face. She told several people "Evans grabbed Kassidy by the face in order to keep her from falling off a trampoline."29 When asked about the trampoline story in after agreeing to cooperate Bortner was not sure if that story was true or false and would not repudiate it.

The court held that because the defendant substantially altered her statements, minimizing Evans’ behavior, her information was not "truthful, candid, and complete."30 That was a material breach and the State was free to prosecute her.31

Several things seem settled by Bortner, at least tacitly. First, prosecutors have the power to make binding immunity agreements. While this has been generally taken for granted, there is no statutory authority for it and the compelled-testimony immunity statute (RSA 516:34) requires judicial proceedings. In such a situation, several states have held prosecutors without authority to grant non-statutory immunity.32 Second, the agreements will generally be analyzed as contracts and interpreted according to the reasonable understanding of the defendant.33 Third, as in the case of a plea bargain, the state’s remedy for material breach is simply rescission and prosecution.

There are, however, some possible open questions.


As the defendant was in breach rather than the State, Bortner gives no guidance about defendant’s remedies. Here the analogy to plea bargains seems questionable. The U.S. Supreme Court has held that repudiation of a plea bargain by a prosecutor before the plea is entered has no legal effect— that an executory plea bargain is not binding.34 Absent constitutionally significant detrimental reliance by the defendant, New Hampshire agrees.35 Yet at least one court has enforced an executory immunity agreement without detrimental reliance, specifically rejecting the analogy to plea bargains:

[A] grant of immunity is different from a plea bargain in that in can never be formalized by a plea of guilty. On the contrary, the very nature of the agreement is the promise on the part of the government to do nothing. In addition, a grant of immunity differs from a plea agreement in that it in no way involves court approval. In the case of a plea agreement, the court in essence executes the agreement by accepting the plea of guilty. In the case of a grant of immunity, however, only two parties are involved. The government alone makes a decision not to prosecute in exchange for testimony … . The most that one granted immunity can do is to agree to testify and then await the call of the government.36

Once statements have been made under a cooperation agreement, simple rescission is even less suitable. A plea is easily withdrawn, but statements made in reliance on a promise of immunity can have cascading effects. However, it is possible that the remedy for prosecutorial breach would not be total transactional immunity (specific performance), but simply suppression of all evidence derived from statements made in reliance on the agreement— use immunity. Use immunity generally meets constitutional requirements in related contexts,37 and the legislature expressed a preference in 1993 by switching to use immunity in the compelled testimony statute.38 In a slightly different situation (reliance on an unauthorized immunity promise) the Michigan and West Virginia Supreme Courts simply suppressed the agreement and resulting evidence.39

Even for situations where the State is alleging breach, Bortner is only a beginning. While the court in Bortner found a material breach, the written agreement purported to permit prosecution for "any" breach. In an ordinary contract there is very little limit on cancellation options so long as they are clearly expressed. Can the civil contract model be pushed that far for waivers of constitutional rights? The cases in other jurisdictions generally use the language of substantial performance and material breach,40 but it is not clear if that standard could not be changed by agreement.

Non-cooperation by a defendant, particularly under a materiality standard, will often be debatable, opening the question of the burdens of pleading and proof. At least two states place the burden on the defendant to show the existence of the agreement by the preponderance of the evidence, then shift the burden to the State to show beyond a reasonable doubt why the agreement is not binding.41 The Fifth Circuit has held that the government need prove breach only by the preponderance of the evidence.42

There is also the question of which of a set of inconsistent statements is true. Bortner apparently did not raise this issue, but the agreement was for truth, not a confirmation of prior statements. To avoid this hazard, prosecutors have sometimes contracted for testimony matching previous statements or a statement proffered in the negotiation, with mixed success. Several courts have rejected the practice,43 while others have permitted it, at least so long as the agreement also requires truthfulness.44

A final question is whether to fully apply New Hampshire’s rules for construing ordinary contracts in these cases. Ordinarily in the case of a written contract, interpretation and determination whether a contract term is ambiguous are questions of law.45 Insurance policies and exculpatory agreements aside, New Hampshire generally does not construe contracts for or against particular parties,46 but there is authority for applying a special rule to immunity agreements. The Supreme Court of Tennessee has held that a cooperation agreement "is different from the average commercial contract as it involves a criminal prosecution where due process rights must be fiercely protected. … [A]mbiguities in the agreement must be construed against the State."47


Non-statutory immunity agreements by prosecutors now have a degree of judicial confirmation, and issues surrounding them will be analyzed generally according to civil contract principles in a manner analogous to plea bargains. While adequate for the decision in Bortner, these analogies are imperfect. There are several key issues likely to arise in cases of disputed immunity agreements on which the case law in other jurisdictions is divided and which remain to be addressed in New Hampshire: remedies for breach by the State, burdens of proof, limits on agreements for specific testimony, and the possibility of special rules of construction.


  1. State v. Amanda Bortner, 150 N.H. 504 (2004).
  2. Id. at 509.
  3. Id.
  4. NH RSA 516:34 (1993).
  5. State v. O’Leary, 128 N.H. 661 (1986).
  6. State v. Little, 138 N.H. 657 (1994).
  7. Bortner, 150 N.H. at 508.
  8. O’Leary, 128 N.H. at 664.
  9. Id. at 666.
  10. Little, 138 N.H. at 665.
  11. Id. at 660.
  12. Id.
  13. Id. at 660-61.
  14. Id. at 661 quoting Correale v. U.S., 479 F.2d 944, 947 (1st Cir. 1973).
  15. Id. at 665.
  16. Bortner, 150 N.H. at 508.
  17. Id.
  18. Id.
  19. Id. at 508, quoting Little at 660. Little indicates this is a direct quotation from Santobello v. New York, 404 U.S. 257, 262 (1971).
  20. Id. at 508, quoting Little at 661. Little indicates this is a direct quotation from Correale v. U.S., 479 F.2d 944,947 (1st Cir. 1973).
  21. Id. at 508, quoting Little at 660.
  22. Id. at 508-509.
  23. Id. at 509.
  24. Id. at 507.
  25. Id. at 509.
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Id. at 510.
  31. Id.
  32. State v. Hanson, 382 S.E.2d 547 (W.Va. 1989); State ex rel. Munn v. McKelvey, 733 S.W.2d 765 (Mo. 1987); State v. Hargis, 328 So.2d 479 (Fla App. 1976); Bowie v. State, 287 A.2d 782 (Md. App. 1972).
  33. Bortner, 150 N.H. at 508, citing Little at 660.
  34. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).
  35. State v. O’Leary, 128 N.H. 661 (1986).
  36. Plaster v. U.S. 789 F.2d 289 (4th Cir. 1986)(quoting and adopting opinion of the District Court).
  37. See Kastigar v. U.S., 406 U.S. 441, 92 S. Ct. 1653, 32 L.Ed. 2d 212 (1972).
  38. State v. Roy, 140 N.H. 478 (1995).
  39. People v. Gallego, 424 N.W.2d 470 (Mich. 1988); State v. Sharpless, 429 S.E.2d 56 (W.Va. 1993).
  40. E.g. U.S. v. Castaneda,162 F.3d 832 (5th Cir 1998); State v. Howington, 907 S.W.2d 403 (Tenn. 1995).
  41. Zani v. State, 701 S.W.2d 249 (Tex.Crim.App 1985); State v. Howington, 907 S.W.2d 403 (Tenn. 1995).
  42. U.S. v. Cantu, 185 F.3d. 298 (5th Cir. 1999).
  43. See cases collected in People v. Jones, 600 N.W.2d 652 (Mich.App. 1999) at 656.
  44. People v. Jones, 600 N.W.2d 652 (Mich.App. 1999); Sheriff v. Acuna, 819 P.2d 197 (Nev. 1991).
  45. Town of Ossipee v. Whittier Lifts Trust, 149 N.H. 679 (2003).
  46. Mobile Oil Corp. v. Goodhue Boatyard, Inc. 110 N.H.80 (1969).
  47. State v. Howington, 907 S.W.2d 403 (Tenn. 1995) at 410.


Kate Morneau, Class of 2005, Franklin Pierce Law Center, Concord, New Hampshire.



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