concurring in part and dissenting in part.
I agree with all of the Court’s opinion except Part II relating to Government exhibits 61-A and 61-B, which are the copies of the canceled check and stub evidencing the $15,000 payment to Lawn. This leads me to concur in the affirmance of the convictions of Giglio and Livorsi, but as to Lawn I think a different result is required.
The Court appears to recognize that these exhibits were excludable as “tainted” evidence, since they were government-made copies of documents which, as held in a prior decision, United States v. Lawn, 115 F. Supp. 674, had been obtained from Lawn in violation of his constitutional rights. Nevertheless the Court sustains their admissibility on the ground that Lawn’s counsel “consciously and intentionally” waived at trial any objection to them. This view I cannot share, for it seems to me the Court’s action falls short of what we should do in holding the Government to the strictest measure of accountability on its repeated representations to court and defense counsel that it was not using any “tainted” evidence at the trial.
*364The Court justifies its finding- of waiver by reasoning that the “no objection” remark of Lawn’s counsel at the time these exhibits were introduced reflected his deliberate choice between having these documents in, or securing their exclusion from, the case. But to me this reasoning is quite unconvincing. At the outset, it should be noted that the Court here assumes that counsel realized these particular photostats of the original check and stub were “tainted” copies. That, in my opinion, is a hazardous assumption. It is true that each exhibit bore the tell-tale 1952 grand jury markings, but assuming, as I do, that the Government’s use of these documents was the result of inadvertence, it is equally true that this red light escaped the notice of the prosecutor as well as that of the trial judge, who the record shows was constantly alert and sensitive throughout the trial to the possibility of “tainted” evidence filtering into the case. I see no reason for attributing to defense counsel greater awareness on this score than that possessed by the prosecutor and the judge.
Further, it is by no means as apparent to me as it is to the Court that counsel wanted these exhibits in the case for the purpose of corroborating Lawn’s explanation of the $15,000 payment as being an innocent personal loan from Giglio rather than, as claimed by the Government, an incriminatory payment from the partnership.1 As I *365read the record on this episode, it seems just as reasonable to suppose that counsel’s voir dire examination of the witness through whom these exhibits were introduced, ending with his “no objection” remark, was but the familiar kind of jury play which a good trial lawyer sometimes uses to affect an appearance of unconcern towards damaging evidence which he knows he cannot keep out of the case. It is of interest that defense counsel did not even mention the loan theory in his summation; this tends to show that, having done what he could with these exhibits at the time of their receipt in evidence, his tactics were to leave well enough alone. On the other hand, it can hardly be denied that from a jury’s standpoint the actual canceled check bearing Lawn’s endorsement was of great value to the Government. In a jury’s eyes the canceled check would be apt to be considered an instrument of crime implicating Lawn in the conspiracy, and so indeed the prosecutor played it up with telling effect in his summation.
In short, I think the Court has viewed this episode in an unreal light. At least there is much room for doubt as to what counsel actually intended. Where, as here, we are dealing with exhibits whose use the Government can justify at all only on a plea of good-faith inadvertence, I think the petitioner is entitled to the benefit of that doubt, particularly in view of the Government’s repeated unequivocal representations that it would not use any of the “tainted” evidence at the trial. The Court’s contrary view I deem inconsistent with the high standards which past decisions have insisted be maintained in the conduct of federal criminal trials. See McNabb v. United States, 318 U. S. 332, 340-341. “The dignity of the United States Government will not permit the conviction of any person on tainted testimony.” Mesarosh v. United States, 352 U. S. 1, 9.
*366In my opinion the admission of these exhibits was prejudicial error, and if nothing further appeared I think we would be required to reverse for a new trial. However, additional evidence now proffered by the Government indicates that other “innocent” copies of the same check and stub were in the hands of the New Jersey federal authorities at the time of the New York trial.2 Had the existence of such copies been known to the New York prosecutor, the error arising from the use of the “tainted” copies should be deemed harmless, for if objection to these exhibits had been made the prosecutor could have substituted “innocent” copies. If, on the other hand, the federal authorities in New Jersey had no such copies or if in any event the New York prosecutor was unaware of their possession of the copies, reversal would still be required on grounds of prejudicial error, since the prosecutor would not have been in a position to substitute “innocent” copies had the “tainted” copies been objected to and excluded at the trial.
Although, as the Court properly holds, we cannot pass upon the accuracy of this additional evidence in determining the issues before us, I think the Government’s proffer may properly be taken into account in deciding the nature of the judgment we should enter. See 28 U. S. C. § 2106; cf. United States v. Shotwell Manufacturing Co., 355 U. S. 233. The petitioner, by making his specific objection to admission of the disputed exhibits for the first time on appeal, gave the Government no occasion to introduce the “innocent” copies at the trial and thereby avoid error. He should not now be permitted to preclude the Government from showing that the error complained of was harmless. *367In these circumstances I think the proper course for us is to vacate the judgment of the Court of Appeals as to Lawn, and to remand the case to the District Court for the purpose of determining whether “innocent” copies of these exhibits were within reach of the New York prosecutor at the time of trial. If the court so finds, it should be instructed to let Lawn’s conviction stand, and if it finds otherwise, to grant him a new trial.
It is difficult to believe that counsel could have found in these exhibits the important corroborative value which the Court now attributes to them. The original recording of the $15,000 payment as “legal expense” on Tavern’s books had been made by the company accountant only after he had consulted Giglio, and there is no dispute that the subsequent alteration in this entry to reflect the payment as a transaction involving Giglio personally rather than the partnership was urged by Lawn. Only because of Lawn’s insistence did the $15,000 “payment” take on its subsequent guise as a loan from Giglio.
The Government asserts that such copies were voluntarily produced by Lawn at a hearing with reference to his own income tax returns which was held in New Jersey on May 12, 1952.