Circuit Judge (dissenting):
Reversal is required in this case because the nondisclosure of Mills’ confession was Brady error, and it was not harmless beyond a reasonable doubt. Although the reasoning of the majority is not crystalline, I interpret the opinion as deciding that a Brady error occurred, but that the error was not prejudicial. I cannot reconcile the reasoning with Brady itself nor with the authority that constitutional error requires reversal unless the error was harmless beyond a reasonable doubt.
The threshold inquiry is whether Mills’ confession was “material either to guilt or to punishment.” (Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.) Evidence is “material” in the Brady sense if it may have been useful to Miller on the guilt phase of his trial had it been timely disclosed. The standard of materiality is plausible materiality, not palpable materiality. (The Brady phrase is “would tend to exculpate.” 373 U.S. at 88, 83 S.Ct. 1194.) Suppression of evidence that goes only to the credibility of a witness is material within the meaning of Brady when the credibility of a witness might affect the outcome of a case. (Giglio v. United States (1972) 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; United States v. Hibler *1130(9th Cir. 1972) 463 F.2d 455; see Napue v. Illinois (1959) 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217.)
Mills’ confession was “plausibly material” because it tended to support Miller’s central defense theory that Mills, not Miller, prepared the false tax returns specified in the indictment. The evidence did not become immaterial because defense counsel did not use it after the prosecution tardily disclosed it. The evidence was not revealed until the Government’s case-in-chief was closed and the defense case was almost over. Defense counsel could not then turn back the clock, plan and execute his cross-examination of the Government’s witnesses and lay the path for the defense with Mills’ confession in hand. A continuance at that juncture would have provided him with little more than an opportunity to reflect upon the use he could have made of the evidence if he had known about it in time.
The next question is whether the Brady error requires reversal. Special rules govern reversals for the Government’s failure to disclose evidence favorable to a defendant. If the prosecutor intentionally withholds Brady material to gain an advantage over the accused, the nondisclosure is in bad faith, and automatic reversal follows.1 (E. g., United States v. Keogh (2d Cir. 1968) 391 F.2d 138, 146-47; see United States v. Gerard (9th Cir. 1974) 491 F.2d 1300, 1302-1303). The prosecutor in this case deliberately withheld the Mills’ confession until the trial was almost over, but nothing in the record suggests that he acted in bad faith. Rather, he mistakenly arrogated to himself a determination about the utility of the confession to the defense. Defense counsel, not the prosecutor, has the responsibility to decide whether plausibly material evidence will be useful. (See Brady v. Maryland, supra, 373 U.S. at 88, 83 S.Ct. 1194; Levin v. Clark (1967) 133 U.S.App.D.C. 6, 408 F.2d 1209, 1212.) The failure of the prosecutor to reveal the Mills’ confession was akin to negligence. Negligent nondisclosure is a violation of Brady. (See Giglio v. United States, supra, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104; Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194; Levin v. Katzenbach (1966) 124 U.S.App.D.C. 158, 363 F.2d 287, 290; see also, e. g., United States v. Rosner (2d Cir. 1975) 516 F.2d 269, 272; United States v. Gerard, supra, 491 F.2d at 1302). “[N]egligent nondisclosure is no less damaging than that which is a product of guile.” (Levin v. Katzenbach, supra, 363 F.2d at 290.) Nonetheless, application of the automatic reversal rule to cases involving negligent Brady violations would probably be too severe. (See United States v. Keogh, supra, 391 F.2d at 147-48.)
A Brady violation involves a deprivation of due process. Thus, except in those cases where special circumstances necessitate application of the automatic reversal rules, we should apply the usual constitutional error rule that a violation requires reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) The burden rests upon the Government to establish that the error was harmless under Chapman, and the Government has not carried that burden. Although the evidence was sufficient to sustain the conviction on appeal, absent Brady error, the evidence of guilt was by no means overwhelming.
We should not be hesitant in rigorously applying Brady and enforcing that rule even though reversals of criminal convictions may thereby result. The Brady rule does not result in the suppression of relevant evidence, but in its disclosure, thereby shoring up the integrity of the fact-finding process. Signifi*1131cantly, the considered judgment of contemporary scholarship stands firmly behind fuller disclosure in criminal proceedings. (E. g., Proposed Amendment to Rule 16 of the Federal Rules of Criminal Procedure and Advisory Committee Note thereto, 62 F.R.D. 271, 304-17.) Further, the Brady rule serves the inestimably important function of rendering criminal proceedings more just; the rule works no undue hardship on the prosecution, but merely requires the prosecution to disclose plausibly material evidence favorable to an accused, and to resolve any doubt in favor of disclosure. “The [prosecution’s] obligation is not to convict, but to see that, so far as possible, truth emerges . . . . No respectable interest of the [prosecution] is served by its concealment of information which is material, generously conceived, to the case, including all possible defenses.” (Giles v. Maryland (1967) 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (Fortas, J., concurring).)
Application of the Chapman rule forbids our throwing any burden upon Miller to show how nondisclosure prejudiced him. Accordingly, the majority’s first-stated reason for nonreversal is irrelevant.
The second basis for the majority’s conclusion that reversal is not required is that the undisclosed evidence was not material enough to warrant a new trial. The majority applies a test that governs post-trial motions for a new trial made before the district court. That is the wrong test. This is not a case like United States v. Diaz-Rodriquez (9th Cir. 1973) 478 F.2d 1005 in which Brady material was discovered after trial, upon the basis of which the defendant made a motion for a new trial before the district court. In that situation, absent governmental bad faith, the district court is not justified in granting a new trial unless it concludes that the newly discovered evidence “ ‘could ... in any reasonable likelihood have affected the judgment of the jury . . .’” (Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. at 766, quoting Napue v. Illinois, supra, 360 U.S. at 271, 79 S.Ct. 1173; United States v. DeVoe (5th Cir. 1974) 493 F.2d 776.)
To be sure, the application of one standard of “materiality” of undisclosed evidence when the issue is presented to us on direct appeal and of a different standard of “materiality” of the same evidence when the issue is presented on a post-trial motion to a district court may seem anomalous because the end product in both situations may be a new trial. To the extent that there is any anomaly, however, it is one to which we are long accustomed, for example, the erroneous exclusion of evidence may often be a ground for reversal on direct appeal, whereas the same evidence, if discovered after trial, would not be a sufficient ground for a new trial motion before the district court. Moreover, the difference in rules is also the result of the expressed concern in Brady and Giglio that Brady error should not “automatically require a new trial whenever ‘a combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . ” (Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. at 766, quoting United States v. Keogh, supra, 391 F.2d at 148.)
Finally, United States v. Valdivia (9th Cir. 1973) 492 F.2d 199, upon which the majority opinion relies, does not support its conclusion. The evidence in that case was not withheld, and it was not material in the Brady sense. The prosecutor’s office never possessed the evidence, which was a statement by one Silva to a customs agent that he had delivered narcotics to the defendant’s cousin. The customs agent told the defendant about Silva’s statement shortly before the end of the defendant’s trial. The agent never told the prosecutor’s office about it, and nothing in the recitation of the facts suggests that the customs agent had any duty to disclose the statement to anyone. He simply volunteered the information to the defendant. Moreover, we rejected the argument that the Silva statement would have been useful for impeachment *1132purposes; it had no substantive significance.
I agree with the majority that the other claimed errors are not meritorious, but I would reverse and remand for the Brady: error. .
. The Supreme Court has indicated that a prosecutor is responsible for all information available to a member of his staff. (Giglio v. United States, supra, 405 U.S. at 154, 92 S.Ct. 763; cf. Ingram v. Payton (4th Cir. 1966) 367 F.2d 933 (prosecution liable for negligent mis-identification of chief prosecution witness); Barbee v. Warden (4th Cir. 1964) 331 F.2d 842 (prosecution liable for police nondisclosure).)