dissenting.
I must respectfully dissent. The majority says that the issue before us on appeal is whether the Younts tapes contain evidence that is relevant to prove the continued existence of probable cause to detain Sutkiewicz. By thus stating the issue, the majority is able to hold that the district court erred in refusing to permit the Younts tapes to be introduced into evidence. But the majority’s statement of the issue, although it permits the conclusion the majority wants to reach, is clearly wrong, and the conclusion is wrong as well. For the reasons that follow, I would affirm the district court’s ruling that the tapes are not relevant to the issues in the case.
Sutkiewicz claims in this action that officers Carlson and Lynch violated his constitutional rights1 and committed the state torts of false imprisonment and malicious prosecution by failing to inform the prosecutor about exculpatory evidence of which they were aware. To prevail on these claims, Sutkiew-icz was required to prove that Carlson and Lynch had knowledge of evidence that east doubt on the legitimacy of the probable cause supporting his continued detention and failed to bring this evidence to the prosecutor’s attention. Evidence relative to probable cause that Carlson and Lynch did not know of is immaterial to this action. See Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979) (“This Court repeatedly has explained that ‘probable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed ... an offense.”) (citations omitted) (emphasis added); see also Clarke v. Montgomery Ward & Co., Inc., 298 F.2d 346, 348 (4th Cir.1962) (“A person who places before a prosecuting officer information upon which criminal proceedings are begun, and who later acquires additional information casting doubt upon the accused’s guilt, should be under an obligation to disclose his discovery to the prosecutor.”); Simmons v. Telcom Credit Union, 177 Mich.App. 636, 442 N.W.2d 739, 742 (1989) (“Notwithstanding the fact that a person who has instituted a criminal proceeding may have had probable cause for the commencement thereof, if that person afterwards acquires a means of asserting that the charge is not well-founded, his failure to intervene and have the prosecution discontinued ... may render that person hable ____”) (citation omitted).
Sutkiewicz claims that these officers knew that the Younts tapes contained exculpatory information.2 He attempted to prove that the officers knew of that exculpatory information by introducing the content of those tapes into evidence. The district court, however, ruled that unless Carlson and Lynch actually knew what was on the tapes, the content of the tapes was not relevant to Sutkiewicz’s claim that the officers knew of exculpatory evidence and withheld it from the prosecutor. Therefore, the district court ruled, unless Sutkiewicz could present some evidence that the officers had listened to the *363tapes, the content of the tapes was not relevant and was inadmissable.3 Although Sut-kiewicz was afforded numerous opportunities to produce such evidence, he did not do so.
The narrow issue before us on appeal is whether the content of these tapes is relevant to Sutkiewicz’s claim that the officers knew that the tapes contained exculpatory information and withheld them from the prosecutor. The majority opinion never addresses this issue at all. Rather, the majority addresses an entirely different relevance issue, namely, whether the content of the tapes is relevant to the continuing existence of probable cause to detain Sutkiewiez. The majority focuses solely on its interpretation of the content of the tapes,4 concluding that because “the tapes contain evidence that, if believed, would negate the requisite probable cause necessary to legitimize Sutkiewicz’s continued detention, we find the tapes relevant.” And because the content of the tapes may bear on the probable cause, the majority concludes that their exclusion denied Sut-kiewicz a fair trial.
But the issue before the court is not whether the content of the tapes tends to make it more likely that there was no longer probable cause to detain Sutkiewiez. The issue is whether the content of these tapes is relevant to prove that these officers knew that the tapes contained exculpatory evidence. If there were any evidence in this record that the officers participated in the making of the tapes, or that their voices are recorded on the tapes, the content of the tapes might well be relevant to proving knowledge of the content. But there is no such evidence. Nothing in these tapes themselves provides any evidence that the officers were aware of what was recorded on the tapes. And nothing in the record outside the tapes indicates that Carlson or Lynch knew, or should have known, that the Younts tapes contained arguably exculpatory information. The content of the tapes therefore cannot make it more or less probable that the officers knew that the tapes contained exculpatory information. Fed.R.Evid. 401. Regardless of the relevance of the content of those tapes to the continued existence of probable cause to detain Sutkiewiez, unless the officers *364knew what that content was, they did not violate any right of Sutkiewicz by failing to call the tapes to the prosecutor’s attention.
To the extent that we might read Sutkiew-icz’s complaint as raising a claim that these officers had a duty to listen to those tapes to see whether they might contain exculpatory evidence,5 the content of the tapes is still irrelevant. If such a duty did exist, then the breach of that duty was the failure of Carlson and Lynch to listen to the tapes. The breach would have occurred whether or not the tapes contained exculpatory information, and the actual content of the tapes would not make the fact of the breach either more or less likely.
I would hold that the district court did not abuse its discretion in ruling that Sutkiewicz must first show that the defendant officers knew what was on the tapes before their content would be relevant to his claim that the officers were aware that the tapes contained exculpatory information but withheld them from the prosecutor. I concur in the majority’s conclusion that the remaining assignments of error are without merit.
. Neither the majority, nor Sutkiewicz, explains exactly which constitutional right Carlson and Lynch allegedly violated. See Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) ("The first step in any [1983 action] is to identify the specific constitutional right allegedly infringed.”) (citation omitted). For the purpose of this dissent, I will assume that Sutkiewicz has some cognizable constitutional claim.
. Although it is not material to this appeal, I think it is worth noting that these tapes were the least damning of the evidence upon which Sut-kiewicz based his claim against the officers. All of the other evidence was admitted, but the jury still returned a verdict in favor of the defendants.
. During the trial, a lengthy exchange took place between the judge and counsel for Sutkiewiez concerning the admissibility of the content of the tapes. The judge explained that the officers' failure to listen to the tapes might be probative of deliberate indifference or relevant to the reasonableness of their actions, but that, unless there were some evidence that the officers did in fact listen to the tapes, the content of those tapes would not be probative of those things. The court then said:
"As I understand it, the officers have testified that they did not listen to the tapes. Counsel for plaintiffs will be allowed to get into that and examine it in detail. If, however, it turns out that one or both of these officers listened to the tapes, then the contents of the tapes I believe may well be relevant. I’ve said that from the beginning. But on the question of whether the tapes themselves have any probative value in this proceeding, I rule that they do not unless it can be established that the officers listened to the tapes.”
To this, Sutkiewicz’s counsel responded:
"I think the court is erring by accepting as fact the officers’ self-serving statement that they didn't listen to the tapes."
The Court:
“I'm not accepting it as fact. Then it becomes a matter of credibility____ If you have independent evidence that they did listen to the tapes, independent evidence that they did listen to the tapes, you'll be permitted to introduce that.”
Counsel:
“I know this is convoluted and you would not accept it but the independent evidence, in part, is the tapes are so devastating to their claims in this case that they could not say anything other than, 'No, I didn't listen to that.' ”
The district court rejected as bootstrapping Sut-kiewicz's argument that because the content of the tapes was exculpatoiy, the officers must have listened to them and therefore the officers knew that the content was exculpatory.
. In two footnotes in its opinion, the majority embraces Sutkiewicz’s theory that the defendants conspired to deprive Sutkiewiez of his constitutional rights, implying that the district court had likewise recognized that there was evidence to support this theory. The district court, however, went to some lengths in its opinion denying the motion for a new trial to review all of the evidence presented at trial in support of this conspiracy theory. The court concluded that there was simply no evidence to support such a theory, and that the contents of the tapes actually demonstrated that there was no conspiracy. Particularly important in this regard is the district court’s correct observation that the conspiracy theory had been advanced by Sutkiewiez wholly in relation to the issue of whether there had been probable cause for his initial arrest, a matter that was not an issue in the trial.
. The majority does not read the complaint this way, but such a claim is implicit in Sutkiewicz’s argument.