Statement op Circuit Judge Fahy
FAHY, Circuit Judge:I was a member of the three-judge division which rendered its opinion Jan*562uary 23, 1967. I add a few lines now to point out that the denial of a rehearing en banc is not by the votes of only these three members of the court; it is by a majority of the nine active members of the court. These are the only judges authorized by statute to determine the question of rehearing en banc in this case. Moreover, the several opinions and statements now filed by members of the court demonstrate that a majority of the nine judges authorized to participate are of the opinion that the issuance of an indictment does not necessarily bar a supplementary hearing in case of serious defect in the preliminary hearing. The purpose of the Government’s petition for rehearing en banc was to establish the contrary principle. Its contention has been before us a number of times and consideration has been given to the petition for rehearing en banc. So while the position has not formally been presented in a brief styled a brief on the merits, or orally argued at this time, it is one that has been pondered long and hard.
Putting aside the issue of principle above referred to, and turning to the issue whether this particular case is one for disapproval of the Commissioner’s conduct of the preliminary hearing, it is obvious that rehearings en banc are at times denied without necessarily approving a division’s disposition of the particular case.* For reasons which might differ, a majority of the active members conclude that the facts of this particular case are not such as to indicate that en banc consideration would be fruitful in terms of broad principles for future application.
Statement of Circuit Judges McGowan AND LEVENTHAL AS TO WHY THEY VOTE To Deny Rehearing En Banc
The Government’s petition for rehearing en banc is not unpersuasive in respect of the confusion which it asserts the panel’s opinion will intensify. It would have us resolve this confusion by deciding en banc that an indictment always and invariably moots the defects of a preliminary hearing. It was presumably the Government’s preoccupation with the attractions of this broad principle that caused it to fail to raise the factual point which might well have led to a different result, i. e., the failure of appellant to seek timely relief. Because that issue is not significant enough to justify en banc consideration, we have voted to deny the petition.
Bearing in mind that rehearings en banc are an exceptional device for clarifying and shaping the law of the circuit on important issues, we think it undesirable to embark on such clarification in a case which may reasonably be classified as atypical. It will be difficult enough to draw the line for ordering a supplemental preliminary hearing when the petitioner has been diligent, but frustrated, in pursuing his efforts to obtain information in order to terminate unlawful detention. Attempting to develop applicable principles in the absence of a critical context seems to us not only difficult but unsound. Had the timeliness issue been raised, a full development of the facts relevant to it would have been had, and this case could and should have been disposed of by reference to it in the first instance. There would have been no occasion to decide, in the abstract, the question of whether the return of an indictment uniformly moots the matter of a preliminary hearing. The most recent experience of this court with the grant of a Government petition for rehearing en banc seeking a broad doctrinal declaration hardly encourages us to repeat it so soon. See Harris v. United States, 125 U.S.App.D.C. 231, 370 F.2d 477 (1966).
The record shows that appellant had counsel before May 17, 1966, the date set for the preliminary hearing. Indeed, on May 13 counsel moved for the issuance of the subpoenas here in question. That motion was denied the same day. Thus, *563four days before the preliminary hearing, counsel knew that he could not have there the witnesses he wanted. If he thought that the presence of those witnesses was important to the issue of the deprivation of appellant’s liberty, he should have sought relief immediately from the District Court. Instead, he did nothing, the preliminary hearing was held, and appellant continued in jail. On July 13 — almost exactly two months later — the indictment was returned.
This is not a Blue1 case. There, the accused was not provided with counsel, and had no preliminary hearing. The court announced in Blue for the first time that, in the District of Columbia by reason of the Legal Aid Agency Act, the accused should be offered counsel by the Commissioner — a right now reflected in the Federal Rules. The court knew that there must be defendants who, at the time Blue came down, had already been indicted but not tried. The court did not regard these indictments as wiping out the Commissioner’s failure to furnish them with counsel as it found he was required to do under the D.C. statute. The court was careful to say that any of these defendants who wanted the hearing which they had foregone without the advice or assistance of counsel should seek it before trial.
We think a similar principle should apply to those defendants who, although provided with counsel before the Commissioner and who have had hearings, contend that the hearings were significantly defective in some respect. To say that the preliminary hearings were defective is to say that the determination of probable cause was inadequate and should not operate to deprive the accused of his liberty pending grand jury consideration. Wholly apart from the disorderliness and potential waste involved in not seeking correction of the Commissioner until after the grand jury has acted, it would seem to us to be the plain duty of counsel to try to save his client from a custody which he believes may prove to be improper.
The focus of the solicitude embodied in the procedural device of the preliminary hearing is the liberty of the accused. Should it be taken away from him because there is probable cause to believe that he has committed a crime for which the grand jury will indict? To the extent that the prosecution is put to its proof of such probable cause, the accused in effect gets discovery of that much of the Government's case as is comprised of the evidence it adduces to establish probable cause. But that is an inevitable consequence of the hearing, and not its primary purpose. It may well be that there is language in the Blue opinion which obscures this true relationship of discovery to probable cause. But, however cloudy or misconceived that language may be, the relationship, as it is given to us to understand it, is as described above.
It does not follow from this that the return of an indictment automatically forecloses the question of a preliminary hearing. Jaben v. U. S.,2 is at best a Delphic utterance on this point, since what four justices of the Supreme Court said there was in the context of a claim that the Government had filed a last-minute complaint solely for the purpose of tolling the statute of limitations pending grand jury presentment. In Blue, the court was not prepared to permit the right to counsel there articulated to be rendered academic by the easy supposition that the anticipated grand jury action would moot the deffect.
This aspect of Blue would be set at naught if the Government were right in its contention that an indictment is a jurisdictional bar precluding any subsequent effort to supplement a defective preliminary hearing. The Government would also immunize from judicial scrutiny a practice whereby preliminary *564hearings are avoided through continuances granted routinely until mooted by an indictment.3 If such a practice were attempted in the District, we would find no insuperable barrier in meeting the problem through the sanction of requiring a hearing after indictment. Similarly, we see no jurisdictional barrier to a like sanction for coping with the withholding of critical witnesses whose testimony is the key to the issue of the reasonableness of continued detention. The compelling reason justifying that sanction is to avoid the threat to personal liberty — the risk of unlawful detention without probable cause — inherent in such practices, and not their denial of the limited degree of discovery which a preliminary hearing incidentally, though inescapably, provides. Whether and how that sanction is to be used should await delineation in cases involving the claim that indictments caused the frustration of timely efforts to cure defective proceedings.
It is our belief that discovery in criminal cases should be substantially enlarged, and we regret that those who had the drafting of the Federal Rules in charge did not go beyond the amendments effective July 1, 1966. But the preliminary hearing is neither a proper nor an adequate substitute for the more comprehensive discovery which we think those Rules should be enlarged to provide. We see no reason why the scope of the discovery available to a defendant should turn on whether he has been proceeded against in the first instance by complaint before a magistrate or by grand jury indictment.
Extension of the discovery principle through stretching the preliminary hearing entails extension of proceedings before a judicial or quasi-judicial official who may not be suitable for the role of supervising discovery in felony cases (whether a commissioner or judge normally engaged in trial of misdemeanors), and without any possibility of mutuality of discovery.
In introducing legislation which would, among other things, deal definitively with the question of when the return of an indictment puts to rest the matter of a preliminary hearing, Senator Tydings, in the Senate speech referred to above, set forth these findings of his Subcommittee on the use of the preliminary hearing as a discovery vehicle:
At our hearings, there was a considerable amount of discussion of the preliminary hearing as a discovery device. Most witnesses concluded, however, that they would prefer that adequate discovery be provided by other means, and that the discovery question be treated separately from that of the preliminary hearing. We agree. The preliminary hearing is not well suited for discovery for a number of reasons. First, under current doctrines it will always be possible to bypass the preliminary hearing — and therefore discovery — by proceeding rapidly to indictment after arrest or by arresting the defendant only after an indictment has been returned, in which ease the Rule 5 preliminary hearing process is not involved at all. Second, it is possible to hold a preliminary hearing on only one of several charges, and later to indict and try the defendant on other charges. Third, the amount of discovery that a defendant receives in a preliminary hearing depends on the amount of proof the commissioner requires the Government to bring forward to establish probable cause; this may be quite a bit, or it may be very little, but in either event it need not be all the evidence within the possession of the Government that should be subject to discovery. Moreover, the preliminary hearing should be conducted promptly after arrest, but a discovery proceeding is probably more efficiently conducted at a later stage, closer to trial, after counsel has had an *565opportunity to reflect at leisure about the defense, and when the evidence against the accused is likely to be more complete.
We believe that discovery in criminal cases should stand on its own feet. It should not be inextricably entwined in the process of establishing probable cause, but should be designed to facilitate an exchange of information making the trial a more rational method of determining the truth. As such, discovery should be available to all defendants, including those whose arrest following indictment takes them out of the Rule 5 preliminary hearing process, and including those who for one reason or another do not get a preliminary hearing.
Therefore, we feel that discovery, apart from the preliminary hearing, should be handled in the Federal Rules of Criminal Procedure. A new Rule 16, which liberalizes somewhat criminal discovery procedures, took effect last July 1. Some people feel that this new rule does not go far enough, particularly in that it does not cover statements of witnesses and does not contemplate the possibility of the taking of depositions. We hope that the Supreme Court and the Judicial Conference and its committees will carefully scrutinize the operation of the new Rule 16 and will give consideration to further liberalization of the criminal discovery procedures in the Federal courts, so that the Congress does not have to act. This is one area in which we have lagged behind a number of our more progressive State court systems. 113 Cong.Rec. 1883, 1885 (daily ed., Feb. 9, 1967).
We have no difficulty with the panel’s holding as to the merits of appellant’s original request for subpoenas, at least when that holding is closely related to the record. The Government’s witness at the preliminary hearing was a policeman who gave a hearsay account of what he had been told by three eye-witnesses to a capital crime. A judicial officer engaged in a judicial determination of probable cause can hardly rest easy solely with the hearsay account of the policeman of what these eye-witnesses told him if the eye-witnesses can be available, so that he can listen to their versions and observe their demeanor, and provide an opportunity to defense counsel to explore their account on cross-examination.4 The presence of those witnesses impresses us as falling within the orbit of the rights conferred upon the accused by the fourth sentence of Rule 5(c), Fed.R.Crim.P. The getting of eye-witness testimony on record before trial, either by preliminary hearing or otherwise, is not, incidentally, an invariable disadvantage to the prosecution. The Government can be greatly embarrassed by eyewitnesses who see things differently by the time trial is reached. See Coleman v. United States, 125 U.S.App.D.C. 246, 371 F.2d 343 (1966), cert. denied, 386 U.S. 945, 87 S.Ct. 979, 17 L.Ed.2d 875 (1967). So viewed, this holding does not open up the Government’s entire evidence in every case to discovery at the preliminary hearing.
We end where we began, with the judgment that this is not an appropriate case for clarification through rehearing en banc. An apparent majority of the judges of this court have already pondered the question enough to know that they do not accept the Government’s sweeping claim of immunity on jurisdictional grounds. We agree with the Government that supplementary hearings are not available purely as discovery, but we also *566believe they may be available in case of serious defect in the preliminary hearing that supposedly justified the restraint on liberty. Further clarification is best provided, we think, through traditional judicial development in terms of concrete cases where diligent efforts have come to naught.
See e.g., statement of Burger, J., in Washington v. Clemmer, 119 U.S.App.D.C. 216, 225, 339 F.2d 715, 724 (1964).
. Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed. 2d 964 (1965).
. 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).
. In a statement to the Senate on February 9 last, Senator Tydings indicated that this was the practice “in at least one important district.”
. We do not intend to imply that if the judicial officer is satisfied from the account of an eye-witness that probable cause exists he is nevertheless obligated to hear other witnesses, or provide the accused with an opportunity to examine them. This would provide a discovery that is not merely incidental to the establishment of probable cause. However, the accused would still be entitled to summon witnesses under a proffer that they would so negative probable cause as to establish his right to be free of detention. Washington v. Clemmer, 119 U.S.App.D.C. 216, 339 F.2d 715 (1964).