dissenting:
I approve the disposition of issues in the well-reasoned majority opinion. However, I would remand for a new trial based upon another assignment of error, not addressed therein.
Following trial, the convening authority ordered a limited hearing under United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967) concerning a potentially inculpatory statement overheard at the deceased child’s funeral. During the hearing, Dr. Pamela McBog testified that she had heard an unknown black man at the funeral utter “Oh, my God, I killed her, I killed her” or similar words. The military judge found that: (a) Dr. McBog had advised the prosecution of this matter prior to the accused’s trial; (b) the prosecution did not disclose the statement to the defense prior to trial; and (c) the nondisclosure was not due to any intentional self serving or malicious reason.
Constitutional Due Process
The United States Supreme Court has considered whether prosecution suppression of evidence favorable to an accused violates due process in United States v. Augurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Without elaborating on the nuances of a complex subject, the relevant portions of Brady and Augurs counsel that:
*756(1) If the suppressed evidence is material, it matters not that the prosecution acted in good faith.1
(2) The question of whether a given piece of evidence is material can be relevant as to findings, sentence, or both.2
(3) Sometimes, evidence is obviously of such substantial value to the defense that elementary fairness requires disclosure— even without specific request. In determining whether prosecution suppression of evidence results in constitutional error, the accused should not have to satisfy the same severe burden he carries in a motion for a new trial — i.e., that newly discovered evidence probably would have resulted in an acquittal.3
(4) The proper standard is this: If the omitted evidence creates a reasonable doubt that did not otherwise exist, “constitutional error has been committed.” 4
Courts have applied these difficult concepts with varying results. See, for example, Stokes v. State, Del., 402 A.2d 376, 379-381 (1979) (particularly excellent analysis of cases); People v. Torez, 90 Mich.App. 120, 282 N.W.2d 252 (1979); and Jackson v. Wainwright, 390 F.2d 288, 294-297 (5th Cir. 1968). See generally, Annot., 34 ALR3d 16 (1970). The Court of Military Appeals has applied Brady and Agurs in United States v. Horsey, 6 M.J. 112 (C.M.A.1979). The Court suggests that the proper reading of the Brady and Agurs test is:
The evidence must be highly probative of the innocence of the accused in more than an isolated way.
United States v. Horsey, supra, at 115.
Military Discovery
Over and above the constitutional due process issue, there is an additional consideration — the unusually liberal discovery practices enshrined in military law. Thus, military practice well may require a standard more forthcoming than Brady and Agurs. Information available to a military accused normally exceeds that obtained by defendants in almost all state and federal courts. H. Moyer, Justice and the Military 437 (1972). See also United States v. Brakefield, 43 C.M.R. 828, 833 (A.C.M.R.1971). Summarizing, Moyer comments that:
As a matter of practice, discovery in courts-martial is generally open-ended and informal, and material is often furnished even though not specifically required under the [Manual for Courts-Martial] .... Moyer, supra, at 444.
Apropos of this standard, paragraph 4Ag, Manual for Courts-Martial, 1969 (Rev.), sets forth duties of the trial counsel during the trial. The paragraph addresses the prosecutor’s role thus:
Although his primary duty is to prosecute, any act, such as the conscious suppression of evidence favorable to the defense, inconsistent with a genuine desire to have the whole truth revealed, is prohibited.
See United States v. Croft, 33 C.M.R. 856, 860 (A.F.B.R.1963). See generally, DA Pam 27-173, Military Justice-Trial Procedure, paragraph 19-14, April 1971. (Disclosure “should be construed liberally within the spirit of ethical standards.”)5
Conclusion
This case has taken on a new slant with the matters presented at the DuBay hear*757ing. As I understand their position, the defense claims:
a. the prosecution learned of a potentially inculpatory statement at the deceased’s funeral which amounted to someone else “confessing” to the crime;
b. the prosecution failed to inform the defense of this;
c. the defense thus never had a chance to explore the inculpating statement6; and
d. this situation is squarely within the Supreme Court’s comment in Agurs that “there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed.... ” United States v. Agurs, supra, 427 U.S. at 110, 96 S.Ct. at 2400.
In my judgment, this factual situation comes tantalizingly close to meeting the Brady-Agurs test.7 Even if the facts technically do not meet that threshold, the liberal procedures of military discovery nonetheless mandate a new trial since the accused was denied the broad and traditional discovery routinely recognized in the military. See DA Pam 27-173, Military Justice — Trial Procedure paragraph 19-14, April 1971.
On this basis I would remand for a new trial.
. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963).
. Brady v. Maryland, supra, at 88, 90-91, 83 S.Ct. at 1197, 1198.
. United States v. Agurs, 427 U.S. 97, 110-111, 96 S.Ct. 2392, 2400-2401, 49 L.Ed.2d 342 (1976).
. Agurs, supra, at 112-113, 96 S.Ct. at 2401-2402, see also Fn. 22.
. Overlaying both the constitutional and military discovery aspects of the problem is the matter of ethical standards. The prosecutor must reveal evidence tending to negate the guilt of the accused, or mitigate the degree of the offense, or reduce the punishment. See Disciplinary Rule 7-102(b); see generally, Spilker, The Ethical Charge to Counsel, 22 Air Force L.Rev. 101, 112-113 (1980-1981).
. One cannot easily say that both sides had “equal access” to the witness on this matter— she was expected to testify solely as a medical expert; only a psychic “hunch” could have led the defense to ask whether she had attended her patient’s funeral and overheard exculpatory matters of possible value to the accused.
. During the entire trial for example, the accused’s husband, also an airman, claimed his rights under Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831. His alibi for the timeframe in question is not airtight and there is some suggestion he may have been present in the quarters at a time near the child’s death, changing clothes before beginning his outside job as a janitor. Granting the accused the benefit of all inferences, the suppressed evidence creates in my mind a reasonable doubt on the issues of guilt and sentence — particularly as to the degree of the accused’s culpability as being solely responsible for death, child abuse, and the other assaults.