(dissenting) — The Rules of Criminal Procedure impose a continuing duty to disclose discoverable information. I agree with the majority that the prosecutor violated this duty when he failed to inform defense counsel prior to retrial that the investigating police officer was substantially changing his previous trial testimony. I disagree with the majority that, under the facts of this case, the trial court’s decision to deny the motion for a mistrial was discretionary and no abuse occurred.
As a direct consequence of the prosecutor’s failure to disclose this material change in testimony, defense counsel’s opening statement to the jury seriously mischaracterized the police officer’s expected testimony. At least part of defense counsel’s strategy depended upon eliciting certain testimony from the police officer — defense counsel had good reason to expect. We can presume if defense counsel had known the officer planned to change his testimony, which under CrR 4.7(h)(2) the prosecutor had a clear duty to disclose, counsel would have undoubtedly given a different opening statement. Ah a direct consequence of the prosecutor’s failure to disclose, at the least defense counsel’s credibility with the jury suffered significantly. Despite recognizing the prosecutor’s intentional violation of the rule, the majority fails to provide any meaningful remedy, effectively rendering the requirements of CrR 4.7(h)(2) meaningless. I would instead vacate the conviction and remand for a new trial.
*931In relevant part, CrR 4.7 states: “[T]he prosecuting attorney shall disclose . . . the substance of any . . . statements . . . .” CrR 4.7(a)(l)(i) (emphasis added). The requirement is mandatory and the prosecuting attorney’s duty is continuing and, as the majority correctly recognizes, there is no question in this case that the prosecutor knowingly and intentionally violated this rule.
What the majority fails to recognize is the importance of the rule to the trial process. Based upon the information that is expected to be provided by the State, defense counsel prepares trial strategy, including developing an opening statement to the jury outlining the expected testimony and arguments. Misinformation can be devastating to this process. Defense counsel’s misleading statements to the jury (again based upon the prosecutor’s failure to supply correct information) caused loss of credibility and significantly undermined the effectiveness of defense counsel. The rule requires the disclosure of truthful information. The majority, by failing to provide a meaningful remedy, allows the State to effectively give misinformation — misinformation which leads directly and predictably to defense counsel looking foolish and untrustworthy to the jury.
Initially, I disagree with the standard of review adopted by the majority. Functionally, this discovery violation deprived the defendant of effective assistance of counsel — an error of constitutional magnitude. The standard of review, therefore, is not abuse of discretion, but whether the error was harmless beyond a reasonable doubt; a burden the State cannot meet in this case. See State v. Caldwell, 94 Wn.2d 614, 618, 618 P.2d 508 (1980) (“Since the error infringed upon the petitioner’s constitutional rights, the error is presumed prejudicial, and the State has the burden of proving that the error was harmless.”) (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)).
In situations, as here, where defense counsel’s credibility has been undermined, vacating the conviction and granting a new trial is the appropriate remedy. While this is a case of first impression, cases dealing with analogous issues have *932resulted in reversal. In Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983), the court found the prosecutor’s conduct (which resulted in undermining counsel’s credibility before the jury) was a significant error meriting a grant of defendant’s writ of habeas corpus. While Bruno, of course, did not involve CrR 4.7, there are many parallels to the instant case. In Bruno:
[T]he prosecutor reviewed the testimony of an important witness for the defense that had repudiated earlier pro-prosecution statements she had given government investigators. He inferred that this sudden reversal at trial in her memory was the direct product of her consultation with the accused’s attorney before she took the stand. He returned to this theme in the closing part of his argument. Thus, in hopes of destroying the credibility of her testimony on the stand, the prosecutor had labelled defense counsel’s actions as unethical and perhaps even illegal without producing one shred of evidence to support his accusations.
Bruno, 721 F.2d at 1194 (footnote omitted). This attack on the attorney’s credibility, coupled with hints from the prosecutor that hiring an attorney was probative of guilt, was found sufficient by the Bruno court to grant relief. Bruno, 721 F.2d at 1194-95. While Bruno was an extreme case, the principle applies equally here; we should not allow the prosecutor’s violation of CrR 4.7(h)(2) to undermine the right to effective counsel.
Similarly, this court held early in our history that “[pier-sons accused of crime have the right to be represented by counsel whose usefulness shall not be impaired by any unfavorable remark or critical attitude on the part of the trial judge . .. .” State v. Moneymaker, 100 Wash. 463, 464, 171 P. 253 (1918). Moneymaker’s conviction was vacated and a new trial ordered because the trial court rebuked defense counsel in front of the jury. Underlying Moneymaker is the principle that the accused should not be deprived of a credible defense counsel. The State’s failure to effectively disclose lessened the credibility Greiffs counsel had with the jury and, thus, is functionally equivalent to *933the judge’s rebuke in Moneymaker.
The federal courts have also found reversible error when a prosecutor stressed to the jury that an attorney for the defendant was present during the execution of a search warrant. United States v. McDonald, 620 F.2d 559, 560 (5th Cir. 1980). The McDonald court reached this conclusion in part because the prosecutor implied that counsel had acted illegally or unethically by standing by while the accused secreted or destroyed evidence. McDonald, 620 F.2d at 561. The court found the implication “affected the fairness of McDonald’s trial.” McDonald, 620 F.2d at 564. The prosecutor’s action lessened the credibility of counsel and, therefore, functioned to deprive the accused of the effective assistance of counsel. The court ruled that deprivation caused reversible error. McDonald, 620 F.2d at 564. I would likewise find the deprivation to Greiff caused reversible error here.
Regardless, however, of what standard of review applies and even without the constitutional dimension I would find present in this case, the prosecutor’s duty to disclose this material change in testimony is required by CrR 4.7 which the majority rightfully recognizes. Compliance with the requirement of disclosure is critical to the trial process. A meaningful remedy for violation must exist. The discretionary standard propounded by the majority is an insufficient deterrent to future cases involving failure to disclose. Further, it minimizes the duty. I would instead hold when the State intentionally and deliberately violates its CrR 4.7 duties and when the testimony is material or significant to a fact of consequence, a new trial is required. Therefore, I would reverse the Court of Appeals and remand for a new trial.
Smith, Madsen, and Sanders, JJ., concur with Johnson, J.