(concurring) .
I concur in the holding of the majority that when a district judge, in imposing a sentence, relies upon a list of prior convictions in a presentenee report, he must disclose that portion of the presentence report which contains the list to the defendant, his attorney, and the attorney for the Government. I would extend that holding, however, to require disclosure of all portions of the presentence report upon which the judge relies.
The test which the majority formulates for determining whether or not the possibility of the submission of misinformation to a judge is of constitutional dimensions so as to compel disclosure of the information is that of balancing :
“[0]n the one hand . . . the risk of violation of significant constitutional rights, and on the other, the possibility of damage to the orderly administration of justice.”
In striking the balance, in this case, in favor of the risk of violating the defendants’ constitutional rights, the majority astutely notes the massive retroactive application of many of the recently discovered constitutional rights of an accused. This, it is rightly concluded, raises the risk of error in the listing of prior convictions. The majority goes on to find that “none of the objections which have traditionally been advanced by those arguing that the presentence report as a whole should not be disclosed” are apposite to the disclosure of the list of prior convictions.
I think that the risk of error in other portions of a presentence report may well be as great as that in the list of prior convictions. This, coupled with the pervasive impotency, if the trial-judge is permitted to edit the report to afford protection, when essential, to either suppliers of information, the defendant himself, or both, or to facilitate rehabilitative efforts generally, of the *133historical objections to disclosure, and in the light of the significance of the constitutional right involved, I think, requires the disclosure of all portions of a presentence report relied upon by a judge. See Proposed Amendments To Criminal Rules, 52 F.R.D. 451 (1971). (The editing of those potentially harmful portions must rest of course, in the sound discretion of the trial judge).
I am led to this conclusion by the significance of the constitutional right involved, i. e., that of the right to liberty. As with the majority, it seems to me that it is the magnitude of that right rather than the magnitude of the misinformation which is of critical importance in formulating a test for determining whether or not disclosure of the presentence report is required. The importance of the misinformation is determined simply by whether or not it is relied upon. And while it may be that the presumptions (1) that the list of prior convictions portion is “often the most significant part” of the presentenee report and (2) that it is the most likely to be relied upon, are statistically sound, I do not see the need to stereotype the proclivities of sentencing judges, particularly since a rule which requires disclosure of all portions relied upon, subject to discretionary judicial editing, will pro forma cover those portions which need to be disclosed, viz., those relied upon, to protect the constitutional right of the defendant. Errors, if any, may then be corrected. The vagaries of what in a defendant’s background is important to one judge as opposed to another, for purposes of sentencing, I think, demands the flexible rule for which I contend. I would therefore remand this case for re-sentencing with the instruction to the trial judge that he disclose to the defendants, their counsel, and the attorney for the Government all those portions of the presentence report which influenced, and which he relied upon in fixing, the sentence which he imposed upon the defendants, subject to any editing necessary to delete any harmful material.