(dissenting sur denial of petitions for rehearing in banc).
I believe that these matters should be reheard by the Court in banc and the judgments of the district court reversed. The disposition of these appeals depends on our resolution of a question I consider to be of exceptional importance within the meaning of Rule 35(a) of the Federal Rules of Appellate Procedure: what is the scope of a federal prosecutor’s duty to correct known misstatements of government witnesses?
The prosecutor here knew at the time the testimony was given, on two consecutive days, that it was untrue. His only effort to correct the misstatement was his revelation of the testimony’s untruth to the judge and defense counsel out of the jury’s presence. Neither the prosecutor nor the district court ever brought the error to the jury’s attention.
The panel, however, holds that once defense counsel was aware of the misstatement, responsibility for taking corrective measures was defendants’ and their failure to take such corrective measures constituted a waiver of their right to assert this error. Because the prosecutor did not inform defense counsel that the testimony was false until after the witness involved had left the stand and another witness had taken it, defense counsel had no expeditious means of bringing this development to the jury’s attention without the court’s or the government’s assistance. Certainly, the trial judge’s statement that he denied any motion defense counsel was making concerning this matter may be viewed as effectively foreclosing any means by which defendants, without a considerable lapse of time and possibly significant injury to the presentation of their case, could have corrected this error.
While I disagree with the panel as to whether the defendants here reasonably could be expected to have corrected the misstatement, that is not what makes this case appropriate for rehearing. The *1173important question is why defendants are required to bring the witness’ misstatement to the jury’s attention. I believe the panel in placing this burden on defendants was guided by a conception of the defendants’ rights and prosecutor’s duty that differs fundamentally from my own.
The sole right involved here is defendants’ right to a fair trial implicit in the guarantee that no person shall be deprived of liberty without due process. Prosecutors, as well as courts,1 are under a general duty to insure that criminal defendants enjoy this right. As part of this general duty, and not as independent technical requirements, prosecutors are barred from employing false testimony to obtain convictions, Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935), and are required, upon request, to make exculpatory evidence available to defendants, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The prosecutor’s “‘responsibility and duty to correct what he knows to be false and elicit the truth,’ ” Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), derive from the same source. Napue does not permit the prosecutor to fulfill this duty by telling defense counsel that certain testimony was false. The decision requires the prosecutor to correct the error, which can be done only by informing the fact-finder of the truth: the requirement that a prosecutor “elicit the truth” to “correct what he knows to be false” is a meaningless inconsistency unless the prosecutor must elicit the truth before the jury. If he fails to do so to remedy a material statement he knows to be false, the prosecutor has violated his duty to insure defendants a fair trial. I do not see how defense counsel’s failure to correct testimony known to the prosecutor to be false can waive defendants’ right to a fair trial; and I find the conclusion of waiver here particularly baffling in light of the established rule that every reasonable presumption should be indulged against waiver of the right to a fair trial, e. g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); cf. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The solution reached by the panel encourages game-playing by government attorneys; I would rather we encouraged them to preserve defendants’ right to a fair trial.
GIBBONS and WEIS, Circuit Judges, join in this dissent.. By focusing on the prosecutor’s duty to assure defendants a fair trial, I do not intend to de-emphasize the court’s duty in this regard. The district court had a duty to see that the jury was made aware of the prosecutor’s promise to the witness. The initial responsibility for correcting this error, however, was on the prosecutor, for he, not the judge and not defendants or their counsel, knew when the testimony was given that it was false. The court’s failure to fulfill its duty here does not excuse the prosecutor’s initial or subsequent dereliction.