dissenting.
Some factual background is necessary. Defendant is accused of attempted murder based on allegation that he fired a high-powered rifle at a police officer. The rifle bullet supposedly struck a police car behind which the officer was crouching. Other police officers present admittedly fired their revolvers during this incident. Thus, defendant wishes to learn whether the bullet that struck the police car was fired by a high-powered rifle, which would tend to be incriminating, or fired by a revolver, which would tend to be exculpatory.
Defendant’s discovery motion requested: “Any bullet, or portions thereof, removed from the police vehicle * * As I understand the record, the district attorney belatedly — almost eleven months after first ordered to do so by the trial court — made, the recovered bullet available to the defendant for independent testing. Therefore, defendant has obtained everything that he needs. Tests on the recovered bullet should indicate whether it came from a high-powered rifle or from a revolver. Defendant need not prove that the bullet did come from any individual officer’s revolver; only that it did not come from his rifle. In the absence of any showing that the recovered bullet is inadequate for defendant’s legitimate purposes, there is no need shown for defendant to obtain the officers’ revolvers for testing.
Aside from the question of need, whether de*105fendant is entitled to obtain the revolvers belonging to Officers Inhofer and Nielsen depends on constitutional and statutory discovery rules. These separate bodies of rules are. not, contrary to the implication I read in the majority opinion, necessarily synonymous.
The constitutional rules come from Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963), and its progeny. These rules require the prosecution to disclose and make “exculpatory” evidence available to- the defense. We. have previously held that the Brady doctrine is inapplicable when it is not known whether evidence would be exculpatory. See, State v. Jones, 18 Or App 343, 525 P2d 194, Sup Ct review denied (1974). In other words, Brady is not authority for what defendant here seeks to do, that is, obtain evidence of unknown import to test it and determine whether it helps or hurts his case.
The statutory discovery rules, OES 135.805 to 135.873, were enacted in 1973 as part of the revision of the criminal procedure code. The rule relevant to this case provides: “[T]he district attorney shall disclose to the defendant * * * any * # * tangible objects: (a) [w]hich the district attorney intends to offer in evidence at the trial; or (b) [wjhich were obtained from or belong to the defendant.” OES 135.815(4). The district attorney insists he does not intend to offer the two revolvers in question in evidence at the trial. The revolvers were neither obtained from nor belong to the defendant.
Finding that the revolvers are not subject to the constitutional or statutory (OES 135.815(4)) rules, and, most importantly, that defendant does not need them to prepare his defense, I would reverse the order appealed from.