concurring.
I concur in the result, as I agree that appellee did not prove that the undisclosed evidence at issue satisfied the materiality standard established by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. I write separately because I respectfully disagree with much of the Opinion Announcing the Judgment of the Court’s (“OAJC”) conception of the relevant decisional law, and in particular its approval of this Court’s approach and decision in Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994), where this Court held that “[i]n determining the materiality of the omitted evidence we must, therefore, consider any adverse effect that the prosecutor’s failure to disclose might have had on not only the presentation of the defense at trial, but the preparation of the defense as well.” Id. at 1245 (emphasis added). In my view, there is unavoidable tension in the OAJC’s determination that Green was and is good law and its holding that the Superior Court erred in this case. The Superior Court panel below characterized Green with scrupulous accuracy; did no more than apply the letter of Green to the circumstances; and the materiality/prejudice cited by the Superior Court here was, if anything, less speculative than the ephemeral prejudice identified by the G'reen Court in awarding a new trial. The OAJC goes to unnecessary and, indeed, revisionist lengths to discount or minimize obvious and multiple difficulties with Green. It would be better for the Court to acknowledge and correct our own error, rather than saying that Green was right, and that the Superior Court here was wrong for faithfully applying that decision.
Relevant governing cases from the U.S. Supreme Court do not make it entirely clear whether Brady materiality will, or should be, expanded to evidence that is in itself inadmissible at trial — like the non-disclosed evidence at issue in this appeal. The OAJC essentially predicts that the U.S. Supreme Court will expand the definition of materiality to encompass inadmissible evidence but only in very narrow circumstances. The OAJC’s ultimate test for materiality is formulated as follows:
[Njondisclosed favorable evidence which is not admissible at trial may nonetheless be considered material for Brady purposes where the Commonwealth’s failure to disclose such evidence adversely affected the presentation of the defense at trial, or the defense’s preparation for trial, such that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.... We emphasize, however, that “mere speculation” by a defendant will not be sufficient to meet this burden.... Rather, in order to establish a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed, a defendant necessarily must identify specific evidence or *675information that would have been uncovered, and explain how that evidence or information would have changed the result of the proceeding.
OAJC Op. at 670 (emphasis added).
I have no difficulty with the aspect of the OAJC’s prediction highlighted above, since it implicitly rejects and overrules Green, and it retains the core reasonable probability test actually established in the Brady cases, and thereby retains the proper effect-upon-the-trial focus. As I understand the OAJC’s post-Green test, materiality requires that the undisclosed evidence either be admissible in its own right, or else there must be some showing by the defendant that the inadmissible evidence would have led to concrete, derivative evidence that would have been both admissible and outcome-changing. Under this test, which goes a step farther than the U.S. Supreme Court’s precedent, I agree with the OAJC that appellee failed to establish a viable Brady claim, as his materiality argument — like the materiality argument of the defendant in Green — is entirely speculative.
The Green Court did not identify or apply the standard of materiality the OAJC approves today. There are three basic problems with Green. First, Green misapprehended the governing cases from the U.S. Supreme Court respecting Brady materiality. Second, and from that misapprehension, Green fashioned its broad standard of materiality as embracing “any adverse effect” nondisclosure “might have had” on defense preparation. This standard was an erroneous articulation of federal law on the day Green announced it. And, third, Green then actually granted relief premised upon pure speculation as to the possible effect of the non-disclosure: certainly the Court never required that the “defendant necessarily must identify specific evidence or information that would have been uncovered, and explain how that evidence or information would have changed the result of the proceeding.” The Superior Court erred here only because it followed Green’s speculative-effect-on-defense-preparation rule of materiality.
As a preliminary matter, it is important to remember that Green’s holding was rendered as a matter of federal constitutional law. See 640 A.2d at 1244 n. 5. The Brady issue presented here likewise sounds exclusively in federal law, and not Pennsylvania law, except insofar as this Court’s deci-sional law faithfully interprets the federal command in Brady and its progeny. If Pennsylvania decisional law is contrary to the High Court’s Brady decisions, that law is erroneous, and should be adjusted. See Council IS, American Federation of State, County and Mun. Employees, AFL-CIO ex rel. Fillman v. Rendell, 604 Pa. 352, 986 A.2d 63, 77-78 (2009).
Green is specifically challenged by the Commonwealth and, in my view, Green’s extension of Brady materiality to encompass mere speculative effects upon defense trial preparation does not pass muster. The Green holding on materiality was rendered in the course of a very brief discussion of but two cases from the U.S. Supreme Court, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). But, neither case — indeed, no case from the U.S. Supreme Court before or since Green — supports the proposition that Green stated as a settled federal command from the High Court.
I begin by quoting in full the brief, relevant portion of Green respecting the notion that Brady materiality includes possible effects on defense trial preparation:
Recently, in Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992), this *676Court discussed in detail the holding in Brady and its progeny. As we noted there, materiality is determined by different standards depending upon whether trial counsel made a specific or a general request for exculpatory evidence. For instance, where the defense gives the prosecution notice of exactly what the defense desires, the test of materiality is whether the evidence might have affected the outcome of the trial. Commonwealth v. Moose, 529 Pa. at 233, 602 A.2d at 1272, quoting United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342, 350 (1976). Where, as here, a general, as opposed to specific, request for exculpatory evidence is made, the evidence is material “if the omitted evidence creates a reasonable doubt that did not otherwise exist ...” Moose, 529 Pa. at 233, 602 A.2d at 1272, quoting Agurs, 427 U.S. at 112, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. The Court in Agurs further stated that
the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
Agurs, 427 U.S. at 112-113, 96 S.Ct. at 2402, 49 L.Ed.2d at 355. In determining the materiality of the omitted evidence we must, therefore, consider any adverse effect that the prosecutor’s failure to disclose might have had on not only the presentation of the defense at trial, but the preparation of the defense as well. See, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Upon application of these principles to the facts of the instant case, we conclude that the evidence withheld by the Commonwealth is relevant and material.
Green, 640 A.2d at 1244-45. If the Green Court merely quoted Bagley accurately, the disputed proposition would be secure. But, Green in fact did not purport to quote Bagley for its extension of Brady materiality to defense trial preparation; and indeed, Bagley does not support the proposition. This key proposition of federal law is the sole product of the Green Court; it is erroneously stated as if it is the settled command of the High Court; and it cannot be squared with then-extant authority from the High Court.
It is difficult to decipher which, if any, U.S. Supreme Court decision the Green Court thought was support for its novel proposition. The proposition followed immediately after the block quote from Agurs; but, that quotation merely spoke to the effect of the “additional [Brady] evidence” when evaluating the trial record, and did not say that materiality extended to possible effects on trial preparation. The proposition was then followed by the “See Bagley ” citation, without indicating a page number in Bagley or other explanation of the relevance of Bagley. Since the Green proposition included the qualifier “therefore,” it would appear that the Court intended to refer back to its inapposite, preceding quotation from Agurs. In short, the Green Court’s formulation is confusing, summary, and a non sequitur.1 For pres*677ent purposes, it is enough to realize that the Green Opinion did not indicate where, in the precedent of the U.S. Supreme Court, there was support for the notion that Brady materiality extended to possible effects on defense trial preparation.
This is not a quibble. Green stated its proposition concerning possible effects on trial preparation as an affirmative proposition of federal law, found in governing precedent from the U.S. Supreme Court. If the proposition indeed was settled and emanated from the High Court, and Green merely failed to properly identify or articulate the source, it would be but a minor matter. In point of fact, the U.S. Supreme Court has never embraced the proposition; indeed, U.S. Supreme Court cases strongly suggest disapproval of the rule Green discerned.
Take Agurs, for example. Far from holding that Brady materiality extends to possible effects on defense preparation, the Agurs Court specifically rejected a defense argument that “the standard [for assessing Brady materiality] should focus on the impact of the undisclosed evidence on the defendant’s ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence.” 427 U.S. at 112 n. 20, 96 S.Ct. 2392. The Court stated that “[s]uch a standard” of materiality “would be unacceptable ... for two reasons”:
First, that standard would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor’s entire case would always be useful in planning the defense. Second, such an approach would primarily involve an analysis of the adequacy of the notice given to the defendant by the State, and it has always been the Court’s view that the notice component of due process refers to the charge rather than the evidentia-ry support for the charge.
Id. This explanation, strongly based in the due process rationale of the Brady rule, rejected the broad definition of materiality Green announced; yet, the Green Court betrayed no awareness of the determination. Compounding the Green Court’s error, the OAJC today acknowledges that the Agurs Court rejected this broader and vaguer materiality standard but glosses over that rejection by stating that the Green Court, despite its citation to the contrary, actually based its decision on Bagley, a conclusion that is unsupported by the Green Opinion.
Furthermore, the Agurs Court also addressed the issue of admissibility as it relates to materiality, in its following characterization and interpretation of the Court’s decision in Brady:
This Court granted certiorari to consider Brady’s contention that the violation of his constitutional right to a fair trial vitiated the entire proceeding. The holding that the suppression of exculpatory evidence violated Brady’s right to due process was affirmed, as was the separate holding that he should receive a new trial on the issue of punishment but not on the issue of guilt or innocence. The Court interpreted the Maryland Court of Appeals opinion as ruling that the confession was inadmissible on that issue. For that reason, the confession could not have affected the outcome on the issue of guilt but could have affected Brady’s punishment. It was material on the latter issue but not the former. And since it was not material on the issue of guilt, the entire trial was not lacking in due process.
*678427 U.S. at 105-06, 96 S.Ct. 2392 (footnote omitted). Consistently with the due process basis for the constitutional restriction, Agurs specifically tied Brady materiality to admissibility; and it squarely rejected the notion, incorrectly stated as the governing rule of federal law in Green and repeated by the OAJC today, that Brady materiality may be measured by the effect on the defendant’s ability to prepare for trial. Notably, Green recognized the non-materiality holding in Brady and went to some lengths to confine Brady to its facts. Thus, Green dismissed Brady’s holding that effects on mere trial defense strategy did not rise to a constitutional violation, stating: “it is clear that the holding in Brady as to the admissibility of the evidence was based solely upon the precise facts of that case and in no way mandates that the evidence first be admissible before it can be deemed ‘material’ to the defense.” Green, 640 A.2d at 1246. Leaving aside the advisability of an inferior court seeking to confine binding precedent from the High Court to its “precise facts,” the Green Court made no attempt to distinguish Agurs via its “precise facts” or otherwise.
Notably, the Agurs footnote squares entirely with Brady itself, which necessarily calls into question the legitimacy of Green’s attempt to “limit” Brady factually. The question in Brady concerned the effect of the prosecution’s unintentional withholding of a statement by Brady’s co-conspirator, Boblit, in which Boblit admitted that he had committed the actual killing for which both men were found guilty of first-degree murder and sentenced to death in separate trials. The Maryland Court of Appeals held that the prosecution had denied Brady due process of law by withholding Boblit’s statement despite Brady’s request for such statements and remanded for a retrial of the question of punishment only, but not the question of guilt. The state court determined that nothing in Boblit’s statement would have reduced Brady’s degree of culpability below first-degree murder, and therefore, limited his retrial to the issue of punishment.
The U.S. Supreme Court affirmed, holding that a federal due process violation occurs where the prosecution fails to turn over requested, favorable, material evidence to the defense:
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The principle of Mooney v. Holohan [294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935),] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.” A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant; That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not “the result of guile,” to use the words of the Court of Appeals.
*679Brady, 873 U.S. at 87-88, 83 S.Ct. 1194 (footnote and citation omitted).
As to the issue of guilt phase admissibility discussed by the Maryland Court of Appeals, the U.S. Supreme Court acknowledged in Brady that admissibility is a factor in determining whether a due process violation has occurred. Significantly, the Court affirmed the grant of a new trial as to penalty only, indicating its agreement that inadmissible evidence is not material to the jury’s determination of guilt or innocence. In addition, the Brady Court found that the tangential trial strategy implications arising from a hope to make use of inadmissible evidence did not raise an issue of constitutional dimension:
In the present case a unanimous Court of Appeals has said that nothing in the suppressed confession “could have reduced the appellant Brady’s offense below murder in the first degree.” We read that statement as a ruling on the admissibility of the confession on the issue of innocence or guilt. A sporting theory of justice might assume that if the suppressed confession had been used [i.e., against the co-defendant] at the first trial, the judge’s ruling that it was not admissible on the issue of [Brady’s] innocence or guilt might have been flouted by the jury just as might have been done if the court had first admitted a confession and then stricken it from the record. But we cannot raise that trial strategy to the dignity of a constitutional right and say that the deprival of this defendant of that sporting chance through the use of a bifurcated trial denies him due process or violates the Equal Protection Clause of the Fourteenth Amendment.
Id. at 90-91, 83 S.Ct. 1194.
Even assuming that it is a wise or legitimate practice for an inferior court to limit the teachings of the High Court on questions of federal constitutional law to their “precise facts,” as Green did to this inconvenient portion of Brady, the footnote in Agurs should have been a corrective elixir. The simple fact of the matter is that the Green Court failed to read Agurs closely enough, and it then misstated federal law. The footnote discussion in Agurs could perhaps be read as dicta, albeit dicta which reaffirmed that the theoretical underpinnings of Brady require a focus on trial admissibility. But Green did not do that; instead, Green erroneously stated that the High Court had affirmatively established an extremely broad and disruptive federal rule embracing effects on trial preparation when, in fact, the Court had indicated the precise opposite. We should not condone such unfortunate mistakes by straining to insist that Green was and is an accurate statement of the law as set forth by the U.S. Supreme Court when it clearly is not; and we certainly should not lay the blame at the feet of the Superior Court when all the panel did was apply Green faithfully.
Bagley, which the Green Court also cited as unexplained support for its black-letter-law proposition that Brady materiality may be measured by speculative effects on defense preparation, makes Green more problematic, not less. Bagley involved undisclosed impeachment evidence. Bagley was indicted in federal court on drug and firearms charges. Prior to trial, he requested whether any agreements, promises or inducements had been offered to the two principal government witnesses against him. The government’s response did not disclose any such arrangements, but included affidavits from the two witnesses stating that the affidavits were made without any threats, rewards, or promises of rewards. After Bagley was convicted, in response to Freedom of Information and Privacy Act requests, he *680received copies of contracts between the two witnesses and the Bureau of Alcohol, Tobacco and Firearms (“ATF”) revealing that the witnesses were paid for the information they supplied to ATF. Bagley filed a federal habeas corpus petition, on Brady grounds. The District Court denied relief, finding beyond a reasonable doubt that the evidence, if disclosed, would have had no effect on the jury’s determination of guilt. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that the non-disclosure affected Bagley’s ability to conduct an effective cross-examination, and thus “automatic reversal” was required.
On further review, the U.S. Supreme Court reversed the Ninth Circuit. As recognized by the OAJC, Justice Blackmun’s opinion is divided into three Sections, the first two of which represented a majority view, joined by Chief Justice Burger and Justices O’Connor, White, and Rehnquist. Justice O’Connor provided the sole joinder in the third Section. Justice White wrote a concurrence joined by the Chief Justice and Justice Rehnquist. Justices Brennan, Marshall, and Stevens dissented.
Section I of the Bagley Opinion outlined the factual and procedural history, while Section II explained that the Ninth Circuit obviously had erred in applying an automatic reversal rule for Brady violations involving impeachment evidence. In so doing, the Circuit had elevated impeachment evidence above exculpatory evidence, and had ignored directly controlling precedent. The Court noted that the test for relief under Brady is materiality: “a constitutional error occurs, and the conviction must be reversed, only if the error is material in the sense that its suppression undermines confidence in the outcome of the trial.” 478 U.S. at 678, 105 S.Ct. 3375. The Court reversed and remanded for consideration under the proper standard.
In Section III, Justice Blackmun, joined only by Justice O’Connor, discussed materiality at some length. In that discussion, he adverted to the test for materiality recently announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (concerning ineffective assistance of counsel), as materiality affects a determination of prejudice. Justice Blackmun opined: “And in [Strickland ], the Court held that a new trial must be granted when evidence is not introduced because of the incompetence of counsel only if There is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Justice Blackmun then further discussed materiality:
The Government suggests that a materiality standard more favorable to the defendant reasonably might be adopted in specific request cases. See Brief for United States 31. The Government notes that an incomplete response to a specific request not only deprives the defense of certain evidence, but also has the effect of representing to the defense that the evidence does not exist. In reliance on this misleading representation, the defense might abandon lines of independent investigation, defenses, or trial strategies that it otherwise would have pursued. Ibid.
We agree that the prosecutor’s failure to respond fully to a Brady request may impair the adversary process in this manner. And the more specifically the defense requests certain evidence, thus putting the prosecutor on notice of its value, the more reasonable it is for the defense to assume from the nondisclosure that the evidence does not exist, and to make pretrial and trial decisions on the basis of this assumption. This *681possibility of impairment does not necessitate a different standard of materiality, however, for under the Strickland formulation the reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response.
Id. at 682-83, 105 S.Ct. 3375 (emphases added).
Justice White’s very brief concurrence, representing the view of three Justices, noted that he agreed only that, for purposes of the materiality inquiry, “ ‘evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Id. at 685, 105 S.Ct. 3375 (White, J., concurring) (quoting Justice Blackmun’s opinion, id. at 682, 104 S.Ct. 2052). Justice White thought the standard had sufficient flexibility, such that there was no reason to engage in Justice Blackmun’s further analysis. Justice White never spoke to defense preparation, much less did he speak to speculative effects upon defense preparation.
The Green Court’s citation to Bagley apparently intended to refer to Section III of Justice Blackmun’s opinion, without recognizing that the expression represented the view of but two Justices. In addition, Green failed to recognize that this dictum spoke to a very specific sub-class of Brady claims. And, finally, Green mis-characterized the dictum, taking a suggested permissive qualifier — courts may consider the effect on trial preparation— and reading it as mandatory.
In response to these observations, the OAJC insists that, although the Green Court’s citation to Bagley “arguably suggested that its result was dictated by the holding of a majority in Bagley ... we do not believe this Court’s holding in Green was inconsistent with Bagley.” OAJC Op. at 661. The point is not “arguable.” Justice Blackmun’s two-Justice opinion was the one that spoke of effects on defense preparation, and Green cited it as if it were a majority holding. The OAJC then speculates that the defense preparation passage from Justice Blackmun’s two-Justice opinion, when bootstrapped to Justice White’s three-Justice concurrence, supports a tacit five-justice holding that Brady materiality extends to trial preparation. The OAJC says that Justice White “expressed no discomfort with Justice Black-mun’s suggestion that, under Strickland, a determination of Brady materiality may include consideration of any adverse effects on trial preparation resulting from nondisclosure.” Id. at 661. The OAJC puts words into Justice White’s mouth; he wrote specifically and narrowly to explain that he would go no further than approve of the reasonable probability/result of the proceeding test.
Moreover, even if the Bagley opinions could support this tortured reconstruction, it would not change the point. The Green Court stated its proposition about possible effects on mere preparation as if it were clear, black letter law from majority expressions of the High Court. This simply was not the case. Green is a problem precedent: it did not square with Brady and its progeny on the day it was decided, and we should own up to the error.
*682In the fifteen years since the decision in Green, the U.S. Supreme Court has revisited Brady on a number of occasions, dealing with various applications of Brady and refining the standard of materiality. See District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (Brady obligations do not extend to post-conviction proceedings); Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (distinction between materiality under Brady for purposes of determination of guilt and sentencing); Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (lower court erred in dismissing as procedurally defaulted Brady claim involving evidence of witness’s informant status where claim arose pre-Antiterrorism and Effective Death Penalty Act and defendant exhausted state court remedies); United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (prosecution not required to disclose potential impeachment evidence prior to entering plea agreement with defendant); Stridden v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (defendant could not establish Brady violation where he failed to show reasonable probability that conviction or sentence would have been different had suppressed documents been disclosed); Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (prosecution failure to disclose that witness failed polygraph test did not deprive defendant of “material” evidence under Brady rule due to absence of reasonable likelihood that disclosure would have resulted in different outcome at trial); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (outlining four aspects of materiality under Bagley and discussing their application). In none of these cases has the Court affirmatively said that Brady materiality extends to mere possible effects upon defense preparation, rather than admissible evidence.
Wood v. Bartholomew is the most relevant here. Wood was a per curiam opinion, granting certiorari and reversing the decision of the U.S. Court of Appeals for the Ninth Circuit, which discussed whether undisclosed evidence must be admissible to be material for Brady purposes. The prosecution in Wood did not disclose to the defendant that the defendant’s brother, who was a prosecution witness, had taken a polygraph examination, the result of which suggested that his later trial testimony, claiming that he was not at the scene of the crime with the defendant, was deceptive. The U.S. Supreme Court reiterated that evidence is “material” under Brady “only where there exists a ‘reasonable probability that had the evidence been disclosed the result at trial would have been different.” 516 U.S. at 5, 116 S.Ct. 7 (citing Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555). The Court found, in the strongest terms, that the polygraph results were not “evidence” within the meaning of Brady because they were inadmissible under state law, even for purposes of impeachment, absent agreement of the parties; and for that reason, their disclosure would not have affected the outcome of the trial:
If the prosecution’s initial denial that polygraph examinations of the two witnesses existed were an intentional misstatement, we would not hesitate to condemn that misrepresentation in the strongest terms. But as we reiterated just last Term, evidence is “material” under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a “reasonable probability” that had the evidence been disclosed the result at trial would have been different. Kyles v. Whitley, 514 U.S. 419, 433-434, 115 S.Ct. 1555, 1565-1566, 131 L.Ed.2d 490 (1995); United *683States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.); id., at 685, 105 S.Ct., at 3385 (White, J., concurring in part and concurring in judgment). To begin with, on the Court of Appeals’ own assumption, the polygraph results were inadmissible under state law, even for impeachment purposes, absent a stipulation by the parties, see 34 F.3d, at 875 (citing State v. Ellison, [36 Wash.App. 564, 676 P.2d 531 (1984) ]), and the parties do not contend otherwise. The information at issue here, then — the results of a polygraph examination of one of the witnesses — is not “evidence” at all. Disclosure of the polygraph results, then, could have had no direct effect on the outcome of trial, because respondent could have made no mention of them either during argument or while questioning witnesses.
Id. at 5-6, 116 S.Ct. 7.2 Thus, the Wood Court reconfirmed that undisclosed evidence that is inadmissible at trial cannot give rise to a Brady violation. Even if Green had not been wrong on the day it was decided, it became wrong when Wood was decided. Brady materiality does not include mere possible “adverse effects” upon “defense preparation.”
Finally, and as I noted at the outset, the materiality rule the OAJC ultimately devises in this case impeaches its insistence that the standard and decision in Green were correct when that case was decided and its concomitant suggestion that Green remains good law. Again, Green said that materiality includes “adverse effects” that a failure to disclose “might have had” on defense preparation. But, the OAJC today would hold that:
We emphasize, however, that “mere speculation” by a defendant will not be sufficient to meet this burden.... Rather, in order to establish a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed, a defendant necessarily must identify specific evidence or information that would have been uncovered, and explain how that evidence or information would have changed the result of the proceeding.
OAJC Op. at 670.
Green did not apply this test: Green’s actual summary grant of a new trial in that capital murder case, without so much as a remand, was based entirely upon “mere speculation.” Here is the Green Court’s dispositive analysis: “knowledge of [the undisclosed, inadmissible evidence] certainly would have opened another avenue of investigation for the defense that may well have led to further exculpatory evidence. Had the defense been aware of Moser’s statements, it may also have altered its trial strategy, especially in regards to appellant’s decision not to testify....” 640 A.2d at 1245-46. There are no specifics in these “may haves.” It is simply speculation upon speculation. No specific evidence is identified. Ultimately, the OAJC finds that the Superior Court in this case erred because its determination that the outcome would have been different “was based upon mere speculation.” But, in so holding, the Superior Court was merely reflecting fidelity to the Green mistake. The OAJC “doth protest too much”3 in its effort to defend Green; the *684OAJC in fact would overrule the decision sub silentio — and correctly so.
What the U.S. Supreme Court’s cases may have left open, including after Wood, is the question of whether a Brady violation may be established if the defendant can specifically identify difference-making, admissible, derivative evidence arising directly as a result of the non-disclosed evidence. And, as the OAJC aptly summarizes, there has been much litigation over this point. See OAJC Op. at 661-65. Federal circuit courts indeed have held that the Wood decision should not be interpreted to mean that any evidence that is not admissible on its own cannot give rise to a Brady violation. See, e.g., Maynard v. Government of the Virgin Islands, 392 Fed.Appx. 105 (3d Cir. Aug. 25, 2010). See also United States v. Wilson, 605 F.3d 985, 1005 (D.C.Cir.2010) (“[T]o be ‘material’ under Brady, undisclosed information or evidence acquired through that information must be admissible.”); United States v. Price, 566 F.3d 900, 911 (9th Cir.2009) (Wood Court did not reject notion that inadmissible evidence that would lead to discovery of admissible evidence can be subject of Brady claim); Ellsworth v. Warden, 333 F.3d 1, 5 (1st Cir.2003) (joining “most circuits” holding that Brady violation occurs where suppressed evidence is inadmissible but would lead directly to admissible evidence); United States v. Gil, 297 F.3d 93 (2d Cir.2002) (Brady material need not be admissible if it could lead to discovery of admissible evidence). Cf. United States v. Erickson, 561 F.3d 1150, 1164 (10th Cir.2009) (to support motion for new trial based on Brady, defendant must produce admissible evidence that, if believed, would warrant relief). Indeed, the ultimate rule the OAJC fashions here is taken from these cases, focusing on derivative admissible evidence.
Of course, these cases represent predictions of what the U.S. Supreme Court would hold, if faced with the question; they do not bind this Court. Having said that, we are positioned the same as the lower federal courts — ie., we must attempt to predict what the High Court would do, given its prior pronouncements. For my own part, I have no difficulty with the OAJC’s prediction. But, I would specifically acknowledge the fact that the question is an open one, and I cannot agree that the issue somehow was already properly decided by Green, when it was not. Green did not speak of specific and admissible derivative evidence. It spoke vaguely, broadly, and wrongly of possible effects upon “defense preparation,” and decided the case upon speculation, which is decidedly not the same thing. In addition, taking a lesson from the Green mistake, I would not fashion an overly broad pronouncement, but I would require that the derivative, admissible evidence be specifically identified, with an explanation of why it is difference-making under the reasonable probability standard. Under that standard, I agree that appellee here, as in Green, has failed to offer anything beyond mere speculation.
The OAJC ultimately has rendered a self-contradictory opinion, by both relying on and repeating the error in Green, and then by adopting a derivative evidence materiality rule that would essentially overrule Green. I would acknowledge the error in Green and specifically overrule the case, and supplant that erroneous rule with the one I describe above. Accordingly, I concur only in the result.
Justices EAKIN and McCAFFERY join this opinion.
. The OAJC characterizes the "therefore” language as an "inadvertently misplaced adverb by the Green Court, and not a deliberate misrepresentation of the law.” OAJC Op. at 660. I have not suggested that the Green Court "misrepresented” the law; rather, I am demonstrating its misapprehension and misstatement of governing federal law, which is not remotely the same thing. I do not doubt that the error in Green was in good faith, but it is *677an error nevertheless that we have a responsibility to recognize.
. Notably, the Wood Court, unlike the Green Court, was careful to identify the actual prec-edential standing of Bagley on this point; and when it spoke of what the Bagley lead opinion and concurrence could be said to have established, it confined its characterization to the reasonable probability standard, with no mention of speculative effects upon trial preparation.
. William Shakespeare, Hamlet (act III, sc. 2).