concurring in part, dissenting in part.
On the motion of defense counsel my involvement on this aged appeal commenced in December of 1987. Prior to that I had no connection with the case. The Court having brought me into the case, I became acquainted with prior proceedings by reading briefs, listening to taped argument, examining the record, and then sat with the Court at a second oral argument in February 1988, three years after the first oral argument was presented. Justice Huntley’s prefatory remarks explain the delay. I am not sufficiently informed as to the suspension of the appeal other than by the statement that it was “to enable a post-conviction proceeding to take place” and also for the additional briefing on the direct appeal by the defendant and, of course, the mandatory review. I am aware that the legislature or the Supreme Court, or both acting in concert, have purposefully slowed down the processing of a capital defendant’s direct appeal and statutory review on the basis of alleged efficiency. In one of the earlier death penalty cases I expressed the view that death penalty appeals and reviews should not be delayed, and that inexorably protracted and inexcusable delay could be to the death row inmate a form of cruel and inhumane punishment. State v. Osborn, 104 Idaho 809, 821, 663 P.2d 1111 (1983). Such a defendant cannot be heard to complain of delay attributable to him, but unjustified state delay (even including the judicial department) is of a different ilk.
Justice Huntley has presented his views in this case in Parts I through VII. My views will be set forth in that same order.
I
Evidence received at the preliminary hearing need not be exhaustive. In Idaho it seldom is because all that is needed is sufficient proof a crime having been committed — beyond dispute in this case — and probable cause that the accused was the perpetrator. State v. Villarreal, 94 Idaho 246, 486 P.2d 257 (1971), and State v. Elisondo, 114 Idaho 412, 757 P.2d 675 (1988). The evidence was sufficient to justify the magistrate in holding Fain to stand trial. I concur with Justice Huntley in Part I.
II A THE ROBERSON TESTIMONY
Justice Huntley’s opinion does not tell why and how Roberson came to be in jail, and that information may not be available in this record. The Roberson testimony on its face gives little appearance of credibility. It may be noted that I have concurred in Justice Johnson’s opinion regarding the admissibility of the testimony of Bobby Roberson. A defendant jailed on a charge of *114first degree murder and facing the death penalty is said to have volunteered to a stranger that he has indeed killed a child. Such is for certain far out of the normal. Justice Huntley does not, nor do any of the Court members who form a majority upholding the cQnviction, suggest that it is credible testimony. What the majority holds on that issue is based on this slender reed: Because the trial judge denied the suppression motion the majority infers that the judge found the testimony credible. This is supposed to follow from a preceding sentence which states: The judge denied the suppression motion because the judge believed Roberson’s account of the circumstances under which defendant Fain spoke to Roberson in his cell. A California case is cited for the proposition that a witness’s credibility is a question of fact to proposition that a witness’s credibility is a question of fact be determined by the court in the context of a suppression hearing. I have read the case. As to what that case is about and what bearing it has on the case before us, I do not care to comment, other than to say its holding is of passing interest and might be utilized in an appropriate circumstance.
In my view credulity is severely stretched to so readily accept as the majority does, that a defendant jailed on a charge of first degree murder and facing the death penalty is said to have volunteered to a stranger that he has indeed killed a child. Such is certainly out of the normal. Of course, anything is possible, even though highly improbable. But, for the reasons, and on the factual analysis made by Justice Johnson, the testimony of Roberson was definitely subject to the scrutiny of the Massiah rule which this Court first applied in the LePage case. Another valid objection to the use of Roberson’s testimony was the failure of the prosecutor, in the first instance, and the trial judge in the second, to allow psychological and/or psychiatric testing and evaluation of Roberson. The majority opinion confuses credibility with competency. Credibility is a determination to be made by a jury. The competency of a witness is subject to challenge, I.C. § 9-202(1), and it is that determination which is for the court upon hearing the testimony of witnesses, including experts. 81 Am.Jur.2d, Witnesses, § 80 et seq; 148 A.L.R. 1140; McNeely v. State, 169 Ind. App. 461, 349 N.E.2d 204 (1976); People v. Reber, 177 Cal.App.3d 523, 223 Cal.Rptr. 139 (1986). “When the competence of a witness to testify is challenged by timely objection it is the duty of the trial court to schedule a hearing in order to make a proper determination upon all the facts and evidence as to whether the witness is or is not competent to testify.” McNeely, supra, 349 N.E.2d at 207. In the instant case the trial court refused to make any inquiry, notwithstanding the presentation of a prima facie case attacking Roberson’s competency. This facet of the trial was brought to our attention in Fain’s opening appellate brief:
VII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN HE REFUSED TO PERMIT THE DEFENSE TO SUBJECT A CRUCIAL STATE WITNESS TO A PSYCHIATRIC AND/OR POLYGRAPH EXAMINATION.
The evidence against this defendant, but for the testimony of highly suspect cell-mates, was totally circumstantial. Thus, the testimony of the cell-mates became extremely critical, for it was a matter of pitting their word against that of the defendant. The testimony of Roberson was especially critical, and because of his background of mental problems, the defense requested that he be evaluated psychiatrically in order to determine his stability as a witness. Even though there are cases making it clear that the trial court has great discretion in permitting such examinations in order to permit the jury to have a full picture as to credibility, the trial court here exercised no discretion at all. He stated ‘it’s certainly not my intent to wander into the never-never land of having witnesses evaluated by a psychiatrist before they are even presented to the Court — never.’ (Tr. Motions 26) To refuse to exercise discretion is not to act with discretion; *115by his refusal to even consider the request the trial judge abused that discretion given him. And, with all due respect, the ‘never-never land’ referred to by the trial judge has been wandered into by some very respectable courts. In fact, in the case of State v. Landis Dillard, a case very familiar to this Court, Judge Doolittle himself wandered into the “never-never land” and permitted a psychologist to present his views as to the dual personality of the defendant. In view of such conflicting decisions coming from the same trial judge, the defendant wonders whether equal protection has any real meaning?
It has been recognized that:
“The psychologically abnormal witness can present a serious obstacle to fact finding in the judicial process. Almost any emotional or mental defect may materially affect the accuracy of testimony; a conservative list of such defects would have to include the psychosis, most or all of the neurosis, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality.” Juliver, “Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach”, 48 Cal.L.Rev. 648 (1960).
The witness Bobby Roberson certainly fits within the description set forth.
Roberson was the defendant’s cell mate during pre-trial incarceration. He was the step-son of a member of the Canyon County jail staff. The devastating effect of Roberson’s testimony as to the defendant’s detailed description of the kidnapping, sexual molestation, and killing of Daralyn Johnson is obvious. How reliable was the testimony:
As pointed out in the defendant’s affidavit in support of the motion to compel psychiatric examination, in 1979, a psychiatrist had evaluated Bobby Roberson and in March of 1983 the New Mexico Probation and Parole Division made a report on Roberson’s progress. The psychiatrist described Roberson as a manipulative person who seeks “in a rather dramatic way of placing himself on center stage” and who has “faked” situations to achieve personal satisfaction. The New Mexico report indicates that Roberson has “encountered many serious behavioral problems in ‘working’ ifrith staff” and that he “appears to be an extremely volatile and manipulative person”. Both the psychiatrist’s evaluation and the New Mexico report note Roberson’s memory-lapse problem and his inability to recall events for vvhich he was incarcerated. The psychiatrist’s report also notes that when pushed, Roberson admitted that he could remember more than he stated at times. Roberson had a history of behavioral problems, manipulativeness, and desire for center stage. Given this background, his involvement in this case was very suspicious. He sought out a detective to inform him of the defendant’s jailhouse conversations— conversations which were completely innocent to that point. After speaking to the detective and returning to his cell, Roberson was suddenly (within one day) allegedly privy to a full, complete, and very detailed confession by the defendant during which the defendant even allegedly drew Roberson a map to detail the route of abduction. (Tr. 830)
To maintain validity as truth-seeking bodies, courts must integrate mode in scientific methods for evaluating a person’s capacity to tell the truth. A psychiatric evaluation can often help bring the truth to light, and courts are beginning to recognize the value of such evaluations. State v. Armstrong, 232 N.C. 727, 62 S.E.2d 50 (1950).
Because psychiatric evaluation is relatively new in the law, cases on the subject are not plentiful. However, certain concepts are clear. Even if a person is found competent to testify at trial, he is still subject to an attack on his credibility based upon his mental state or capacity. People v. Schuemann [190 Colo. 474], 548 P.2d 911, 913 (1976). The value of this rule was pointed out by a commentator who stated that, ‘Actually, the psychopathic liar may be so convincing that he may pass the test of competency with *116flying colors.’ Conrad, ‘Psychiatric Lie Detection’, 21 F.R.D. 199 (1957). In the present case, Roberson was probably competent to testify but his credibility was very doubtful.
The types of mental problems which will constitute an attack on credibility, and thus be relevant, have varied in the decisions. In one case, a chief witness had been involved in an incident in which he ran around the city naked. The court excluded psychiatric evidence regarding the incident because not enough facts were alleged to show that the witness might suffer from ‘some mental aberration rendering his observation and memory of [the events] unreliable’. Bakken v. State, 489 P.2d 120, 124 [Alaska 1971]. The witness’s capacity to remember is a universally accepted method of attacking credibility. The psychiatric evaluation and probation report done on Roberson specifically and particularly addressed his lapse in memory and inability to recall the events of the crimes he committed.
The defendant urges this Court to follow the approach of allowing an attack on the witness’ mental condition to show not only poor memory or perception but also to show that defendant has a motivation reason, tendency or predisposition to lie. The rationale for this approach seems clear:
Lie detection is still an aboriginal state. The liar, be he a conscious or unconscious one, be he a normal person or be he a psychopathic liar, is as dangerous to our society as a murderer. No one method of lie detection is adequate. Many individuals still believe that a liar may be detected by the act of wiping his hands during the course of his testimony. Such lay rules of thumb offer few possibilities in lie detection. Conrad, Psychiatric Lie Detection, 21 F.R.D. 199 (1957).
The defendant urges this Court to follow the approach taken In State v. Zuck, [134 Ariz. 509], 658 P.2d 162 (1982), and direct that evidence as to mental condition as it may effect credibility or capacity to observe, remember, understand, or comprehend.
The defendant urges that especially in a case in which the defendant is being convicted almost entirely on the testimony of one person. That person’s mental condition should be a major, not collateral, issue in the case. People v. Schuemann, supra [548 P.2d], at 914. In Schuemann, testimony of a psychiatrist was excluded because the trial court felt that mental disabilities defy precise definition and evaluation and because another psychiatrist’s testimony was in conflict and the jury might be confused and distracted. The court, in reversing, said that wide latitude should be granted to the defense to attack the witness in a case which turns on the testimony of one person.
In the case of State v. Allen, 70 N.J. 474, 361 A.2d 5 (1976), the defendant was charged with armed robbery and murder. His key defense witness was a juvenile who was prepared to present alibi testimony. The juvenile had been at the state home for girls and was on parole. She had had psychiatric exams while at the home and had at times suffered from psychiatric delusions. The state moved to review her records and to require a psychiatric examination prior to her testifying. The court determined that the prosecution should be permitted to examine the confidential records and utilize them on cross examination, if warranted, and to use them in applying for a court ordered examination. The New Jersey Court was interested, not in traditional key-note type responses, to the problems of credibility, but in helping the finders of the fact get the best possible look at the credibility of key witnesses in a criminal trial. The New Jersey court reached the same conclusion in State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958). See also, in support of the defendant’s contention that the trial court should have held a hearing on Roberson’s credibility and the question of whether a psychiatric examination was needed, People v. Keelin [39 Colo.App. 124], 565 P.2d 957 (Colo.App.1977); McNeely v. State [169 *117Ind.App. 461], 349 N.E.2d 204 (Ind.App.1976); Mangrum v. State [227 Ark. 381], 299 S.W.2d 80 (Ark.S.Ct.1957); and Taborsky v. State [142 Conn. 619], 116 A.2d 433 (Conn.Sup.Ct.1955).
With the glowing problems in the background of Roberson relating to his ability to tell the truth, and his propensity to manipulate facts to his own benefit, the trial Court should have permitted an examination of the witness. The defendant’s life was on the line at the trial, and the trial judge did nothing to assure that the jury had all the information before it relevant to the question of whether the witnesses were telling the truth. The jury is the absolute judge of the matter of credibility of witnesses, and is so told in the instructions. Why the reluctance on the part of the trial judge to let the jury, then, have all the relevant information in order to make that most important of all decisions. The failure of the trial judge to trust the ability of the jury to assess the relevant information as to the witness’s credibility amounted to an abuse of discretion which contributed to the defendant’s facing of death.
Appellant’s Brief, pp. 46-51.
While a prosecutor’s obligation to his office and to the people is to do just that which the title implies — prosecute—at the same time an obligation also remains on him to be fair in his search for the truth and his endeavor to bring no witnesses to testify to a jury who are in any way unreliable. A good and fair prosecutor in my book is one who will not place a witness of doubtful qualifications on the stand without first using all available methods of ascertaining that his testimony will not be conjured fantasy. Here the prosecutor, not to his credit, was willing to have the jury hear the testimony of Roberson no matter what his problems were. Such conduct would certainly go far in gaining a conviction, but a prosecutor should always want to well satisfy himself that a tendered witness is a “valid witness.” When the prosecutor fails to do that, then the Court should do it. This would be especially true where, as here, defense counsel has been able to provide the trial court with evidence which puts a witness, here Roberson, in any extremely suspect light.
If the witness is nevertheless going to be allowed to testify, defense counsel certainly should have the right to present to the jury any expert testimony on the witness’s personality, powers of recollection, and all else that would shed light in the credibility of any witness. On the basis of having been persuaded to accept the authority set forth above in the defendant’s brief, I am fortified in having joined Justice Johnson. When one examines a recent case in point from California, which in turn relies upon a recent holding from the Supreme Court of the United States, Justice Johnson and I are both fortified to what I think would be an overwhelming extent:
Defendants rely principally on Davis v. Alaska (1974) 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347, to support their claim that the challenged discovery and evidentiary rulings effectively denied them their Sixth Amendment confrontation rights. In Davis, the prosecution obtained a protective order preventing the defense from cross-examining the key prosecution witness concerning his probation status. The order was based on an Alaska statute protecting the anonymity of juvenile offenders. Reversing the conviction, the United States Supreme Court held that the right of confrontation was paramount to the state’s policy of protecting anonymity of the juvenile offender. Whatever temporary embarrassment might result to the witness and his family by disclosure of his juvenile record was outweighed by the defendant’s ‘right to probe into the influence of possible bias in the testimony of a crucial identification witness.’ (Id., 415 U.S. at p. 319, 94 S.Ct. at [p. 1112], 39 L.Ed.2d at p. 355.) The high court reasoned that the Sixth Amendment guarantee that an accused in a criminal prosecution “be confronted with the witnesses against him” means more than confronting the witnesses physically. The primary right secured by confrontation is cross-examination. (Id., 415 U.S. at p. 315, 94 S.Ct. at p. 1110, 39 L.Ed.2d at p. *118353.) ‘Cross examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness.’ (Id., 415 U.S. at p. 316, 94 S.Ct. at p. 1110, 39 L.Ed.2d at p. 353.) ‘While counsel was permitted to ask the witness whether he was biased, counsel was unable to make a record from which to argue why the witness might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.’ (Id., 415 U.S. at p. 318, 94 S.Ct. at p. 1110, 39 L.Ed.2d at p. 355; emphasis in original.)
People v. Reber, 177 Cal.App.3d at 529, 223 Cal.Rptr. at 144.
The trial judge’s decision to let Roberson testify under the circumstances here presented, as well detailed in the excerpt from defendant’s brief is absolutely frightening. But worse is an appellate court decision which upholds that ruling, and in doing so establishes precedential case law binding in all future trials where cell mate testimony is offered.
This defendant may be guilty, true, but every man and woman in Idaho must now realize that they can be tried and convicted on testimony of a tainted cell mate, which is wrong, but worse yet when that inmate’s mental balance has been recently held highly doubtful by other authority, but in Idaho will not become the subject of any inquiry whatever. It is indeed a violation of the right of confrontation, as per Davis.
II B THE CHILTON TESTIMONY
It would seem that if Chilton’s attorney, and thus Chilton’s agent and spokesperson, passed on to the prosecutor the remarks which Chilton allegedly had heard Fain say, then it has to be assumed that the attorney believed himself authorized to do so, and also thought that it was in Chilton’s best interest. The only way that this could benefit Chilton would be the expectation of an ultimate reward at the hands of the prosecutor for his volunteered “cooperation” with authorities by furnishing testimony at trial.
Thus, at the outset, there is little distinction between Roberson’s direct contact with the prosecutor as compared to Chilton’s vicarious contact through his attorney, after which Chilton stated that he was then visited (presumably) in his jail cell and asked to give up possession of excerpts from his journal which he kept. Thereafter Chilton “filed a formal statement” (where is not explained nor can I find an answer by examining the appeal record) “asserting that the prosecutor’s office had conspired to force him into testifying, ...” and that “Chilton continues to assert that the alleged death threats against him were, in fact, made by officials in the Canyon County Prosecutor’s Office.”
It surprises me that the entire Court does not find these underlying circumstances relating to Chilton’s testimony very disturbing, extremely so. One point which I think is worth adding is that at the suppression hearing held before Chilton was allowed to testify to the jury, the court asked Chilton if he would say that no one ever offered him any money, leniency, or anything to get into Fain’s cell and get information and turn it over to the state. Chilton’s answer was that no one ever said anything like that at all. The question which the court did not ask him, however, was whether he expected any such favors. The whole scenario suggests that he did— otherwise it makes no sense. There is no problem whatever in believing that Chilton was cunning enough not to directly ask for and that the officers for certain knew better than to volunteer any such offers or promises.
There is a large problem in understanding how the prosecutor, without calling himself as a state’s witness, could make this testimonial statement to the court:
MR. HARRIS: The only other thing I can say, Your Honor, is that as far as I *119know, in talking to Mr. Chilton, the statements that were given to him, or made to him that will be used in his testimony, were made voluntarily, not the subject of any interrogation of any kind on his part, but were spontaneous and voluntary remarks made by the defendant to Chilton himself in this case, or within his hearing. Actually, let’s put it that way, within his hearing. Not made directly to him, but within his hearing.
Tr., Vol. IV, p. 843. Adding to that concern is the prosecutor’s quickness in correcting himself where, after speaking of Fain’s “spontaneous and voluntary remarks made by the defendant to Chilton himself ...” he added, “or within his hearing. Actually let’s put it that way, within his hearing. Not made directly to him, but within his hearing.” Tr., Vol. IV, p. 843.
After the court ruled that Chilton could testify, the prosecutor interrogated both as to Fain-Chilton conversations and an overheard conversation between Fain and a Ray Beam who had apparently been introduced into the cell which was first occupied by Fain alone when Chilton was put into it. Chilton gave testimony which if believable, and believed, would have justified any jury in finding defendant guilty.
On cross-examination, however, Chilton was questioned by defense counsel. He gave some testimony which was more than of passing interest:
Q By Mr. Bishop: Have you ever stated that the prosecutor’s office has conspired to kill you?
A [Chilton] Yes, I have.
Q When did you say that?
A I said it in court in my—
Q What — which court?
A Magistrate Court.
MR. HARRIS: Well, I am going to object as being irrelevant, immaterial, and not within the issues—
COURT: I don’t quite see the relevancy of this—
MR. HARRIS: —of any issue in this case, Your Honor.
MR. BISHOP: Well, it goes to the credibility of the witness, I think. COURT: Very well, I’ll — I’ll permit it.
Q Which court did you state that in?
A It was in magistrate court, my arraignment for cases C-5569 and 5568.
Q Were you represented by counsel at that time?
A No, I was not.
Q Was there truth to those allegations?
A Yes, there is.
Q Was that made in response to this testimony here today?
A No, it’s not.
MR. BISHOP: I have no further questions, Your Honor.
Tr., Vol. IV, p. 854-55. The prosecutor, notwithstanding his objection to that sworn testimony, then took the witness briefly for the purpose of having Chilton further vouch for the verity of his testimony:
BY MR. HARRIS: Q Mr. Chilton, is the testimony that you have given here today true and correct to the best of your knowledge and belief?
A Yes, it is.
MR. HARRIS: I don’t believe I have anything further, Your Honor.
MR. BISHOP: I have nothing.
COURT: You may step down, sir.
Tr., Vol. IV., p. 855.
Two days later a deputy prosecutor was allowed to return Chilton to the stand to testify that on the charges against him there was no plea bargain arrangement entered into in exchange for his testimony against Fain, Tr., Vol VI, p. 1278, at which time Chilton mentioned having a letter to him from the prosecutor which he read: “It is my feeling that Ricky should cooperate with us of his own violation [sic], volition as a demonstration of good will.” Id., at 1279.
Intimidation of a witness in a criminal case is a felony in Idaho. With the prosecutor in essence having endorsed Chilton’s trial testimony, and that testimony including the statement that he, Chilton, was coerced and forced into testifying for the prosecutor, it was rather hollow for Chilton to say as he did when called back that his testimony at trial was offered freely and voluntarily.
*120In these many years in this profession, I have never before seen the equal of these circumstances, and would hope to never see them again. Where a witness has testified to being intimidated into testifying by state officers, there is no way to rehabilitate him as to make him a palatable witness in a jury trial. From reading and rereading of his testimony Chilton comes across as a person who would and did say anything— and nothing in the record refutes his sworn testimony that he was intimidated by the authorities in a manner made felonious by law.
I cannot in good conscience concur in Part II of Justice Huntley’s opinion dealing with the use of Chilton’s testimony which I would characterize as an insult to the criminal justice system.
The philosophical question presented to us, as worded long ago by Justice Frankfurter, is whether the government’s conduct in this case was such as to “offend those canons of decency and fairness which express the notions of justice of English-speaking Peoples,” to “shock the conscience,” and to “offend a sense of justice.” Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Twenty-one years later the Supreme Court of the United States in an entrapment case in a drug context, United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), citing to Rochin warned that:
... we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction. ... 411 U.S. at 431-432, 93 S.Ct. at 1643.
A five-justice majority went on to add that Russell would not be so fortunate. But a reputable four-justice minority (Justices Douglas, Brennan, Stewart, and Marshall) disagreed in two strong dissenting opinions.
Ill
Without citation to any case precedent, the majority rules that there was no error on the part of the trial court in not allowing the jury to have the tapes, and also a transcript of the tapes. Neatly finessing a rather sticky issue, the majority provides the trial bench and bar with the pontifical pronouncement that “limited, relevant portions would have been admissible under the then existing Idaho evidentiary practice, which practice is now articulated in Idaho Rule of Evidence 106.” Rule 106 is then set out following which is conceded that the State did not introduce a writing (which, or a recorded statement, is the subject matter of Rule 106).
Grossly putting the blame for the non-admission of the tape and transcript on the public defender, the majority indulge in a bit of sophistry, which, while it reads nicely, is simply an unsupported statement: “... since Fain’s counsel failed to tailor his request in any respect so as to move for the admission of only those other parts of his statement which might be relevant to the context of Officer Newton’s testimony, the trial court committed no error in refusing the full transcript of the taped interview or the tapes themselves.” Majority Op. p. 86, 774 P.2d p. 256.
This language is not only extremely unfair to defense counsel, but the majority has seized upon the incorrect rule. Not only that, but the majority declines to inform its readers that the witness, Officer Newton, came to court with a complete transcript in his hands, and at some stages of giving testimony resorted to it. In State v. Johnson, 92 Idaho 533, 447 P.2d 10 (1968), in finding error, this Court recited “the then existing Idaho practice” with which in my practice I had many experiences. First of all, the true principle was learned in law school, and secondly it had been reduced to a written rule which is set out in the Johnson case:
A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing. *121But in such case the writing must be produced, and may be seen by the adverse party, who may, if he choose, cross-examine the witness upon it, and may read it to the jury. So also a witness may testify from such a writing, though he retain no recollection of the particular facts, but such evidence must be received with caution. I.C. § 9-1204.
State v. Johnson, supra, at 537, 447 P.2d 10.
Idaho Rule of Evidence 612 is much like the earlier § 9-1204. Rule 612 is readily available in the volume of court rules. As pertinent here, it provides that where a witness, while testifying, uses a writing or object to refresh his memory, or, where a witness before testifying uses a writing or object to refresh his memory, the adverse party (here the defendant Fain) is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. This tape’s only content was the entire interrogation as to Fain’s activities at times pertinent.
That same rule requires of the party propounding the witness whose recollection has been thus refreshed to make “claims that the writing or object contains matters not related to the subject matter of the witness’s testimony.” Where such claim is made, the same rule provides that “the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to party entitled thereto.”
In the instant case there was no such claim made by the prosecution. The majority, after having “most carefully reviewed the record,” (Majority Op. p. 97, 774 P.2d p. 267) has not informed itself of the provisions of this rule. Yet the majority has the gall to accuse the public defender of failing to tailor his request.
Because the trial court, on hearing the prosecutor’s objection to the tape (an object) or the tape transcript (a writing) being received in evidence, failed to have the reporter record the argument on the objection (the jury having been excused), we do not know the grounds upon which the prosecutor argued. The prosecutor asked to approach the bench, the jury was taken out, the court invited both counsel to “come up” and the arguments were had. Tr., p. 648. But not taken by the reporter. A recess was taken. When proceedings resumed, the court stated that the ruling on the admissibility was reserved, but that cross-examination could proceed, “including that subject matter.”
At this point there was further argument of counsel which was taken by the reporter, during which defense counsel stated:
Officer Newton, through examination by prosecution, has given bits and pieces of the two-hour, two and a half-hour interview, and the entire statement at this point is relevant to the jury, and the tape is the best evidence of the conversation, and not the recollection of Mr. Newton at this point.
The tape is available, and we ask that the entire conversation — the entire interview be admitted in fairness and due process requires that it be admitted.
Tr., Vol. Ill, p. 650. To this the Court responded, saying that he had never listened to the tape (not mentioning the transcript of the tape), but apparently the court put both in the same category, and added:
But it is also evident to me that a conversation of that nature may contain questions and answers which are subject to proper objection.
It may be redundant, and it may contain matters that — matters that are excluded under ordinary rules of evidence. Hearsay, and all kinds of things could be involved in that tape.
It’s my position that unless a cause or a basis, inconsistencies for some reason is shown by the evidence to justify the inclusion of the entire tape, that it would be premature for me to admit it all this time.
Clearly the trial judge, having not heard the tape, surmised and speculated into not complying with the Rules of Evidence. Tr., Vol. Ill, p. 651. What happened when the trial judge was again confronted with making a ruling is best presented by going again to pertinent statements of counsel *122and the court. First, defense counsel began by refreshing the court’s memory:
MR. BISHOP: Okay, Exhibit A is a taped interview conducted by Officer Hensen and Officer Newton of the defendant Charles Fain on October 27th, 1981, I believe — 1982.
It has been testified to by Officer Newton. It has been referred to by Officer Hensen.
We have had pieces of the information, basically to refute the alibi, or where inconsistencies as to where Charles was during the period December, January, February, and March of 1981 and ’82. On cross examination the—
Tr., Vol. V, p. 1217. The prosecutor objected to the admission, and the jury was excused.
Defense counsel continued:
A is the tape recording of the interview conducted on — I believe it was testified it was two and a half hours on October 27th.
Basically the officers testified as to what they considered inconsistencies in his statement with what we were to show here in court.
The — there's denials contained in it, and we know there is denials contained on it.
The prosecutor in his cross examination of Charles made reference to the transcript of that interview in attempting to impeach, or indicate recent fabrication of his testimony; and we feel in fairness, and under the law, that the jury, as the trier of fact, has the right to have all of the facts before it, and that those facts include not only the bits and pieces which have been referred to in that interview, but the entire interview.
The testimony has been that the transcript was prepared by a secretary. It was listened to, but it was never compared, and the best evidence is the tape recording itself.
It would also reflect the tone and the way in which the interview was conducted, and enable — in—in order to enable the jury to listen to the tape, and get the clearness of the tape, I would — as I know the Court has done previously — ask that the tape be played and that the jury each be — presented with a copy of the prepared transcript so that they can follow along and hear their own wording what took place.
I think that due process demands, and under the laws it demands that we have now had reference to that interview; that on — only parts of the interview had been placed into evidence, and it’s only fair that the jury, as the trier of fact, hear it all, and let them be the determination of the credibility of all of the witnesses. Two primary witnesses, Mr. Hensen and Mr. Newton for the state, are on there, as well as Mr. Fain, and the jury has heard all of the testimony and the conflicts of the testimony between what parties have said versus where Mr. Fain was; and I believe that they’re entitled to, or the defendant is entitled to — to have them hear the entire transcript— the entire interview that was conducted on the 27th, and based on that, we are asking that it be admitted.
Tr., Vol. V, pp. 1219-21. At this point the prosecutor stated the nature of his objection:
MR. HARRIS: My objection, Your Honor, is goes to the hearsay declaration, and that’s what it is, hearsay.
Secondly, its’ accumulative. The defendant has testified. The jury has that on which they can base any decision that they care to make in this case.
It’s accumulative in that the tape would overly emphasize whatever it is that counsel is arguing in the case, but it — but the hearsay part of it is ... is perhaps the most cogent legal reason for its exclusion. It’s obviously not under oath.
It’s an out-of-court statement, and if put in for the truth of the matters at are ... incorporated therein, and there are, I think, some things in there that are legally objectionable, and would have to be edited in any event if it were to go to the jury. And I think for those reasons, that we should
*123Counsel has — has had every opportunity to impeach the witnesses that have appeared for the state and testified from that tape recording, or transcription. Had every opportunity to do that, and it seems to me that the effect of what he is requesting the Court to do is to set aside the — the legal requirements of evidence so that he can shotgun anything he wants to the jury, and — and the rules of evidence, and for good reasons, do not allow that kind of evidence to be presented.
For those reasons we object.
Tr., Yol. V, pp. 1221-22. Other less germane argument was made, after which the judge stated that he had not listened to the tape but gave his ruling:
In — in the first place, in my opinion, you have not established a proper foundation to introduce that tape into the record — into evidence, and you haven’t made any argument or showing that that tape contains any evidence that is exculpatory as to the statement.
What you really want to do is — is add, or it’s not really an addition. It’s redundant is what it is. Is just go back through that, and have them — a jury deal with something that has never even been presented to the Court; and I—
I’m not going to permit it into evidence.
The people having testified, and their testimony is under oath here in court, and they were free to be cross examined and examined, and recused, and redirected, and as far as I’m concerned, that’s the time to try your case, not by introducing tapes made outside the — when there is no showing of any — any basis that I can see in law for it — to admit that tape.
That’s my position on it.
(Whereupon Defendant’s Exhibit A, having been previously marked and offered, was refused.)9
Tr., Vol. V, pp. 1225-26.
The basic issue presented, however, and really the $64,000 question to be answered, is that raised by the prosecution s success in swinging the court’s thinking into the erroneous belief, and then ruling, that the defense counsel somehow had to establish the relevance of the entire tape. Where the rule reads just the opposite and it was the prosecution who utilized the tape and the transcript thereof as the basis for the testimony of officer Newton, it was incumbent for the prosecutor to show the irrelevance. It is difficult to conceive of any more prejudicial error that took place. The officers called defendant in for the interview; the officers arranged for the machine which would record the interview on a cassette tape; and they caused a transcript to be made. Officer Newton had the tape and the transcript present when he testified on behalf of the prosecution. The prosecution obviously believed that the taped interview and transcript thereof were essential to making a case against the defendant. Then, and exactly as defense counsel explained to the court, Officer Newton, in response to the prosecutor’s questions, gave selective answers based on his recollection of what had been said by the defendant. Great trouble is experienced in understanding how the trial court allowed itself to be misled. Much greater trouble is encountered in comprehending how the majority, and why the majority, misportrays this important aspect of the case. This was a critical issue. The prosecution interviewed the defendant for two and one-half hours, two of them doing so, and having in their grasp an intellect so diminished — if one is willing to believe Chilton and Roberson — that he would readily detail his criminal activity to two strangers neither of whom he had ever seen before.
The two interrogating officers admitted that they could not exact a confession out of the defendant. Apparently the prosecutor thought their testimony important for use at trial in exploring any inconsistencies arising out of the long interrogation.
*124Clearly there was error in not allowing the jury to have all of the evidence which the tape and/or transcript would provide not just selected items at the prosecution’s option.
In State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983), the court at sentencing received in evidence and utilized a tape, and typed transcript thereof, of an interview of Sivak’s co-defendant, Bainbridge, notwithstanding that it was blatantly rank unsworn hearsay. Sivak, supra, at 917, 674 P.2d at 413. No direct mention of this was made in the majority opinion authored by Justice Bakes. Justice Bakes buried that aspect of the highly unusual procedure in this manner:
The findings of the trial judge in sentencing are based not only on what he has heard during the trial, but also on the information he gathers from many other sources. A trial court’s duty to tailor a sentence to an individual defendant necessitates access to a wide range of information about that defendant. State v. Johnson, 101 Idaho 581, 618 P.2d 759 (1980). This is especially true in cases involving the possible imposition of the death penalty, wherein the United States Supreme Court requires that the sentence be determined according to the requirements of each individual case. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). The trial judge in the present case received an abundance of information during the sentencing portion of defendant’s trial concerning the character of the defendant and his possible inclination. The trial judge thus issued his findings based on his access to this broad range of information.
105 Idaho at 907, 674 P.2d at 404.
Today, although the trial court error in regard to non-admission of the tape and transcript thereof is contextually different from the error in Sivak in admitting and utilizing the tape and transcript, both are equally egregious in unfairness and prejudice. Utterly incredible is the rationale by which the trial judge in the instant case could allow the officer to testify as to what defendant Fain said at the taped interview, and then rule the tape and transcript inadmissible as being hearsay.
That ruling, now affirmed by today’s majority, should result in the rules of evidence being rewritten. The majority, instead of referring to the “then-Idaho evidentiary practice” and mistakenly declaring it the equivalent of an evidence rule promulgated after the defendant’s trial, better would have contented itself with the applicable rule of evidence which was in effect. Any mention of Rule 106 should have been avoided.
Both the tape and the transcript thereof should have been admitted in evidence. It was indeed a question of best evidence, as defense counsel argued. The best evidence of what an interviewed accused has said, and the questions to which he is responding, is not recollections of the officer or officers who conducted the interrogation. It is difficult to conceive of any part of the tape which would not be relevant.
IY
I do not disagree with Justice Huntley’s general discussion on polygraph examinations and use thereof at trial. Note should be taken, however, that as to the many cases cited by him, he does not point to any single one as being illustrative of the particular context in which the issue arose in this case.
A suspect, in this case, Fain, is detained and asked by the authorities if he will volunteer to submit to such an examination and is given no promise that it will not be used against him. In fact, there is every reason for him, and the authorities, to expect that if adverse to his circumstances, it will be used against him.
My understanding of fair play requires that: (1) He be allowed to tell the jury that he volunteered to take the test; (2) That the jury be allowed to know the results of the test; (3) That both the authorities and the defendant be allowed to examine the polygraph examiner; and (4) That the court instruct the jury as to the use which can be made of these requirements, which would not be that it is by any means conclusive.
*125It is simply wrong, albeit not illegal, to ask a person to submit to such testing, and where he agrees to do so, then deprive him of letting the jury know that he has done so. Justice Huntley has written that the results are inadmissible absent a stipulation of both parties. Question: Is not the law enforcement authority requesting that a defendant/accused/suspect take the test implicitly so agreeing? If not, then is he in good faith in so requesting? Where the accused agrees to take the test, and exacts from the authority no agreement that it cannot be used against him, too, is not he so agreeing?
In the long-run police work will be made easier by a ruling which encourages suspects to be examined. A suspect who passes the test more often than not is not a viable suspect, and the officers can devote their time investigating others. One wonders at the wide-spread use of polygraph testing in government and business circles, if it serves no valid purpose.
V
I concur with what Justice Johnson has written, adding only that it is the state authorities who most often profit by such testing as was done here. For many, many years now anyone connected with law enforcement has known this to be so. One can only surmise that from the top echelon of law enforcement down, somewhere along the line law enforcement was not adequately informed and instructed as to procedures to be followed. It makes no sense for anyone to put the blame on the doctor who, after all, was under the direction of the officer.
The majority opinion painstakingly reviews pages and pages of cases from other jurisdictions in discussing the problem with the disposed evidence, culminating with the conclusion that: “[t]he remedy of retrial, rather than dismissal, was also found appropriate in Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (Pa.1978) Majority Op. at 96, 774 P.2d at 266. At this point it appeared that the opinion was about to climax with a Rule of Law. Not so, however. Instead, in what will be seen as an outstanding ipse dixit, the majority opinion states: “[b]ased on the foregoing analysis, we have determined that the State did not deprive the defendant of due process by failing to preserve the semen samples it had obtained.” Id. at 96, 774 P.2d at 266. Hopefully some astute member of the trial bench or bar, or a legal scholar will in time explain to me what exactly was the analysis.
The majority opinion then proceeds to accept, utilize, and emphasize the weight of the testimony of the two cell mates which is strangely included with the pubic hair similarity and a witness description of the car the victim was last seen riding, after which it is “concluded that although the evidence against Fain is circumstantial, it is nonetheless significant and weighty.” This seemingly is meant to serve as a predicate for the ensuing sentence which states that “dismissal would be an overly severe sanction.” (Majority Op., p. 97, 774 P.2d p. 267). No one on this Court to my knowledge has ever considered dismissal.
Having thus ruled out dismissal of the case, the majority opinion astounds me, and I am certain also the trial bar, that a “most carefully reviewed ... record” results in the conclusion that if there were a retrial “there is no likelihood that the result would be changed.” In that summary manner the majority abolish this defendant’s right to a jury trial free of error.
I agree that due process does not demand that the charges be dismissed. But a new trial is warranted, as in Chapman, supra, the precedent upon which the majority relies.
A new trial would serve no purpose, so says the majority, because “there is no likelihood that the result would be changed.” Id. at 97, 774 P.2d at 267. This usurpation of the jury’s role is troubling, considering that there is no direct evidence in the record upon which a conviction could lie. Under the circumstances here the words “circumstantial evidence” and “overwhelming” are oxymoronic. Thus, I concur with Justice Johnson’s view that due process mandates a new trial, *126whereupon Fain’s requested instruction,10 be given to the jury. As one commentator has stated:
We must either trust the jury or get rid of it. One cannot afford to sympathize for long with the view that a legal system must carry the burden of fictitious and obscurantist doctrine in order to keep vital issues away from that tribunal which was constituted to decide them.11
VI
Contrary to the conclusion of the majority, the I.C. § 19-2515(g)(5) and (6) aggravating circumstances are duplicative.12 Every murderer who exhibits “utter disregard for human life" commits a crime which is “especially heinous, atrocious or cruel manifesting exceptional depravity.” Today, however, the majority in concludes that the aggravating factors describe two “quite different kinds of culpability.” The majority states:
The particularly cold-blooded killer need not act sadistically or in particularly outrageous fashion in order to commit a killing with utter disregard for human life. One who commits a crime in an especially heinous way is punished for the heinousness of his crime, not because he acted with utter disregard for human life, although it may be expected that most especially heinous, atrocious or cruel murders will have been committed with utter disregard for human life.
Majority Op. at 99, 774 P.2d at 269 (emphasis added).
Thus, according to the majority, a “coldblooded killer need not” act in an “outrageous fashion” to commit a murder “with utter disregard for human life.” I cannot fathom a first degree murder which is not carried out in an “outrageous fashion.” Every premeditated murder is outrageous.
The (g)(5) and (6) subsections are nothing more than kitchen sink aggravating circumstances which enable the state to make every first degree murderer not just a candidate for, but an actual recipient of, the harshest and most final of all criminal penalties. As a result, the mandate to narrow the class of death-eligible murders is abandoned.
VII
I am unable to agree with Part VII. In addition to what was written in my prefatory remarks and elsewhere in my opinion, I think that the mandatory review cannot and should not be delayed.
*127APPENDIX A
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. Similarly, the trial court ruled out Defendant’s Exhibit C, a 10 to 20 minute audio-video tape at the time Fain was placed under arrest. On the prosecution’s objection, the court ruled that "the object that it’s hearsay and inadmissible for that purpose is also well taken — it’s not admissible into evidence ..."
. Find in Justice Johnson’s dissent and concurrence at 56.
. Hughes, “Duties to Trespassers: A Comparative Survey and Revaluation,” 68 Yale L.J. at 700 (1959).
. I.C. § 19-2515(g) provides:
The following are statutory aggravating circumstances, at least one (1) of which must be found to exist beyond a reasonable doubt before a sentence of death can be imposed.
(5) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
(6) By the murder or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.
(Emphasis added.)