I dissent.
I cannot agree with the conclusion reached by a majority of this court that while it was error it was not prejudicial error for the trial court to deny defendant the right to produce documents containing statements by eyewitnesses allegedly contrary to those made at the trial by such witnesses. In my opinion nothing could be more prejudicial. It is impossible for an appellate court to say that the jury was not impressed by testimony which absolutely identified the defendant as the perpetrator of the crime given by persons present at the time the crime was committed.
In view of the holding in Gordon v. United States, 344 U.S. 414 [73 S.Ct. 369, 97 L.Ed. 447], it seems incredible that a majority of this court could hold that this error was not prejudicial. The same problem was there presented. The court had this to say: “By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government’s witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: the participation of the accused in the crime. The demand was for production of these specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up. Nor was this a demand for statements taken from persons or informants not offered as witnesses. The Government did not assert any privilege for the documents on grounds of national security, confidential character, public interest, or otherwise. . . . Indeed, we would find it hard to withstand the force of Judge Cooley’s observation in a similar situation that ‘The State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons. ’ [People v. Davis, 52 Mich. 569 (18 N.W. 362, 363).] In the light *591of our reason and experience, the better rule is that upon the foundation that was laid the court should have overruled the objections which the Government advanced and ordered production of the documents.
“The trial court, of course, had no occasion to rule as to their admissibility, and we find it appropriate to consider that question only because the Government argues that the trial judge, in the exercise of his discretion, might have excluded these prior contradictory statements and, since that would not have amounted to reversible error, it was not such to decline their production. We think this misconceives the issue. It is unnecessary to decide whether it would have been reversible error for the trial judge to exclude these statements once they had been produced and inspected. For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule; for rarely can the trial judge understandingly exercise his discretion to exclude a document which he has not seen, and no appellate court could rationally say whether the excluding of evidence unknown to the record was error, or, if so, was harmless. The question to be answered on an application for an order to produce is one of admissibility under traditional canons of evidence, and not whether exclusion might be overlooked as harmless error.
“The Court of Appeals affirmed on the ground that Marshall’s admission, on cross-examination, of the implicit contradiction between the documents and his testimony removed the need for resort to the statements and the admission was all the accused were entitled to demand. We cannot agree. We think that an admission that a contradiction is contained in a writing should not bar admission of the document itself in evidence, providing it meets all other requirements of admissibility and no valid claim of privilege is raised against it. The elementary wisdom of the best evidence rule rests on the fact that the document is a more reliable, complete and accurate source of information as to its contents and meaning than anyone’s description and this is no less true as to the extent and circumstances of a contradiction. We hold that the accused is entitled to the application of that rule, not merely because it will emphasize the contradiction to the jury, but because it will best inform them as to the document’s impeaching weight and significance. Traditional rules of admissibility prevent opening the door to documents which merely differ on immaterial matters. The alleged *592contradictions to this witness’ testimony relate not to collateral matters hut to the very incrimination of petitioners.” (Emphasis added; pp. 418-421.) It was concluded: “The Government, in its brief, argues strongly for the widest sort of discretion in the trial judge in these matters and urges that even if we find error or irregularity we disregard it as harmless and affirm the conviction. We are well aware of the necessity that appellate courts give the trial judge wide latitude in control of cross-examination, especially in dealing with collateral evidence as to character. Michelson v. United States, 335 U.S. 469 [69 S.Ct. 213, 93 L.Ed. 168], But this principle cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony. Reversals should not be based on trivial, theoretical and harmless rulings. But we cannot say that these errors were unlikely to have influenced the jury’s verdict. Wé believe they prejudiced substantial rights and the judgment must be Reversed.” (Pp. 422-423.)
The eyewitness testimony was by far the most important evidence against this defendant. The murder weapon was never found; the similarity in the hand-cast bullets was only that they were “probably of common origin”; and it was thought that defendant’s holster had once carried a gun of a type of the murder weapon. It would appear to me that, in Judge Cooley’s language, the state should have no interest in interposing any obstacle to the disclosure of facts; that all material and relevant facts should be set forth for the determination of the jury and, if certain state witnesses have been accused of making contradictory statements relating to a material fact, those statements should also be before the jury so that it could determine for itself the trustworthiness of such witnesses. The American concept of due process most' certainly encompasses the right of an accused to be confronted by trustworthy witnesses and the right to show, if he can, • that witnesses against him may not be worthy of belief. Due process most certainly also encompasses the concept that the state will not seek to conceal material evidence in the accused’s favor. If due process of law does not encompass such concepts, then we have most assuredly departed a long way from the very foundation upon which our system of justice rests— the ideal that every man is presumed innocent until proven guilty beyond a reasonable doubt. In the words of Mr. Justice Holmes (Olmstead v. United States, 277 U.S. 438 [48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376]), it is better that one *593criminal escape than that the government play an ignoble part.
In Mesarosh v. United States (25 L.W. 4001, 4004, 4005) the government moved to remand the case to the trial court because of untruthful testimony given before other tribunals by Mazzei, a government witness, although contending that the testimony given in the instant case by Mazzei was ‘ ‘ entirely truthful and credible.” The government sought to have the matter remanded to the District Court for a full consideration of the credibility of the testimony of the witness Mazzei. The counter-motion of petitioners asked for a new trial. In reversing the judgments below with directions to grant the petitioners a new trial, Mr. Chief Justice Warren, speaking for the court, had this to say: “Mazzei, by his testimony, has poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity. This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. ‘The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. This Court is charged with supervisory functions in relation to proceedings in the federal courts. See McNabb v. United States, 318 U.S. 332 [63 S.Ct. 608, 87 L.Ed. 819]. Therefore, fastidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted. ’ Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 124 [76 S.Ct. 663, 100 L.Ed. 1003].
“The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below with direction to grant the petitioners a new trial.”
Surely the great State of California does not need convictions based upon the deprivation of an accused’s constitutional right to due process of law.
For the foregoing reasons I would reverse the judgment.
Appellant’s petition for a rehearing was denied January 30, 1957. Carter, J., was of the opinion that the petition should be granted.