concurring in result.
As to Issue I, while I agree that the trial court did not err in refusing to exclude the State's evidence with respect to the broken windshield, I am unable to agree with the implication that prior case law from the United States Supreme Court and from this State creates an absolute "bad faith" requirement with respect to withheld or destroyed evidence. The basic case from which the principle seems to be drawn is Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281. In that base, the court enunciated what may appear, on the surface, to be an absolute bad faith proof requirement. The bad faith element, as discussed in Youngblood, however, is defined within a context of whether the evidence is of such a nature as to make the State aware of its probable importance to the defense. The bad faith requirement does not depend, therefore, upon proof that the State had a culpable or evil motivation in withholding or destroying the evidence.
Furthermore, the Court in Youngblood, relied upon prior decisions which did not focus exclusively upon the absence of a showing of subjective bad faith, but focused also upon the lack of prejudice to the presentation of the defense. Youngblood notes that although reversal will not lie where the evidence might have aided the defense, a reversal is required where the exculpatory nature of the evidence is apparent to the State.7
Even if Youngblood were read to engraft an absolute subjective bad faith requirement, it is materially distinguishable from this case. In Youngblood, unlike the case before us, "the State did not attempt to make any use of the [evidence] in its own case in chief." 488 U.S. at 56, 109 S.Ct. at 336. Here, the State introduced the windshield and various photographs of it into evidence.
Indiana case law is not contrary to my reading of Youngblood. McGowan v. State (1992) Ind., 599 N.E.2d 589 contains an apparent exception or restriction upon an absolute duty of a defendant to establish subjective bad faith on the part of the police or the prosecution. If the evidence may reasonably be "expected to play a significant role in the suspect's defense" the evidence must be preserved. 599 N.E.2d at 594. It appears, therefore, that even absent proof of subjective bad faith (a difficult if not impossible evidentiary task in virtually all such cases), the destruction, material alteration or withholding of evidence may be so prejudicial as to require reversal. In Smith v. State (1992) Ind.App., 586 N.E.2d 890 the court declined to reverse not only because there was no showing of bad faith but principally because the defendant had not shown materiality or prejudice. In Curry v. State (1994) Ind.App., 643 N.E.2d 963, trans. denied, the court appropriately stated that Youngblood does not require reversal when the State fails to retain and preserve evidence which merely "might be of conceivable evidentiary significance". 643 N.E.2d at 978. Accordingly, it is my conclusion that either as a part of the bad faith analysis, or as a separate and distinct consideration, if the State knows or reasonably should know that particular evi*1210dence is crucial to the defense, alteration, destruction, or withholding of that evidence risks reversal.
In the case before us, defendant has not demonstrated that degree of prejudice to the presentation of the defense as to justify dismissal of the charges. Although the windshield was removed from the vehicle abandoned by Rita, the windshield itself was tested and numerous photographs were available for inspection by defendant. The windshield itself was available at all times for examination and testing by defendant, as was the vehicle itself. The defense was at liberty to create a comparable test situation for the vehicle with a replacement windshield and under similar conditions as to time, weather, date ete. The defense was at liberty to subject the actual windshield to extensive examination and expert witness scrutiny. In light of all the cireumstances, Rita has not demonstrated that his defense has been so prejudiced as to constitute a due process denial.
With respect to Issue II, it is my view that prior to the amendment of the charge defendant could only have been convicted of failing to immediately stop at the seene of the accident. This of course presupposes that the defendant was aware of, or should have been aware of, the occurrence at the time of the collision itself and not at some time subsequent thereto. In my estimation the amendment of the charge alters the nature of the charge in the sense that it contemplates a defendant who innocently leaves the immediate scene or is somehow prevented from stopping and only thereafter discovers that a collision occurred and fails to return to the scene. Nevertheless, I agree with the majority that the amendment here did not prejudice the substantial rights of Rita to fully and adequately prepare and present his defense.
As to Issue III, and notwithstanding Lee v. State (1988) Ind. 526 N.E.2d 963, reh'g denied, my reading of 1.C. 33-14-1-3 compels the conclusion that its provisions are restricted to a pre-arrest, and therefore presumably to a pre-charge, situation. Although Lee extends application to any pre-trial subpoenas, the only case cited for authority involved a pre-charge, pre-arrest investigation. Although in my view, the trial court erred in using the statute as the basis for issuing the subpoenas, there is no cause for reversal.
The state could have achieved the same ex parte questioning of the witnesses by resort to Trial Rule 45 as made applicable to erimi-nal proceedings by Criminal Rule 21. If such procedure had been utilized to compel deposition testimony, Rita would not have been entitled to be present nor would the ex parte nature of the deposition violate his right of confrontation. Jones v. State (1988) Ind., 445 N.E.2d 98. As observed by the majority, Rita had the right to depose the same witnesses in preparation of his defense and as further noted the two witnesses against whom the subpoenas were enforced testified at trial and were subject to cross examination. The error, if any, in utilizing 1.C. 88-14-1-3 was harmless.
Subject to the observations herein made, I concur in the holding that the trial court, upon remand, may conduct such further proceedings as are appropriate in light of the decision.
. It appears that the windshield was extracted from the vehicle only three days after the accident. Numerous subsequent communications between the defense and the prosecution clearly demonstrated that both parties were keenly aware that the windshield was "a very key piece of evidence". Record at 156, 199. It is not clear, however, that the State had reason to be aware of the crucial nature of the windshield vis a vis preparation of the defense, before the windshield was removed from the car. See Arizona v. Youngblood, supra, 488 U.S. at 56, 109 S.Ct. at 336-337, n. *.