concurring in part and dissenting in part:
I concur in the majority’s opinion, except for one of the due process issues, which I believe compels reversal.
Under Montana law at the time of La-Mere’s trial, the prosecution was under a duty to provide a list of all of the rebuttal witnesses it intended to call, at least five days before trial, unless it could show *627“good cause” for its failure to do so. The majority concludes that the prosecution was excused from its duty under the good cause exception because it did not know that the witnesses’ testimony would rebut LaMere’s alibi. I think that the prosecution had sufficient facts at its disposal to know that there was a reasonable chance that the witnesses’ testimony would rebut LaMere’s alibi, and that such knowledge gave rise to a duty to provide notice to LaMere.
In the majority’s view, the prosecution may take advantage of the good cause exception unless it is certain that its witnesses will rebut a defendant’s alibi. I think this view misinterprets the purpose of the good cause exception. The good cause exception is to cover such contingencies as the unavoidably late discovery or receipt of information. It is not to allow the withholding of information on the chance it may not in the end be relevant.
Under the prosecution’s theory, the defendant would have to disclose not only the witnesses to his alibi defense, but the substance of the defense to avoid the risk of an “ambush” from surprise witnesses. State v. Madera, 670 P.2d 552, 566 (Mont. 1983) (Morrison, J., dissenting in part). But the statute makes no such requirement. Section 46-15-301(3) requires only that a defendant provide the prosecution with a list of names of alibi witnesses. Upon the exercise of the defendant’s duly — simply to provide names — the State’s duty arose. The defendant in this case did his duty.
As soon as LaMere provided the state with the names and addresses of his alibi witnesses, the prosecution should have been reasonably certain that the hospital witnesses could provide rebuttal testimony. One has only to look at the fact that the prosecution sought evidence of LaMere’s location the night before the robbery to know that the evidence could be relevant. Certainly the state procured its information with the hope of rebutting a potential alibi. Further, the state knew that LaMere’s five alibi witnesses had Idaho addresses. A reasonable conclusion would be that La-Mere’s alibi would place him in Idaho during the time surrounding the robbery. This information bolstered the likelihood that the witnesses could rebut LaMere’s alibi, and in my view, was significant enough to give rise to a duty on the prosecution’s part to provide notice of the hospital witnesses’ possible testimony.
The majority also concluded that LaMere was not prejudiced by the late notice because he could have cross-examined the witnesses or requested a continuance. But once LaMere presented his alibi evidence, a continuance would have been of no benefit to him. Further, although he could have minimized the impact of the witnesses’ testimony by subjecting them to cross-examination, the delay interfered with LaMere’s ability to prepare and present his theory of defense. See United States v. Krebs, 788 F.2d 1166, 1176 (6th Cir.), cert. denied, — U.S. -, 107 S.Ct. 400, 93 L.Ed.2d 353 (1986).
Due process requires reciprocity of obligations in notice-of-alibi statutes. Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). Section 46-15-301(3) on its face provides for the reciprocity of obligations. The prosecution breached its duty in this case. I would reverse.