dissenting,
I dissent both because I disagree with some of the majority’s conclusions and because I fear that the court’s opinion leaves many unanswered questions. Ordinarily, judicial discretion requires that we avoid *596questions not directly raised by the case before us. However, the opinion of the court affects vital areas of practice with which prosecutors and defense counsel must deal on a day-to-day basis. Under these circumstances I think it is important to emphasize some points only touched upon in the court’s opinion and address some the court did not reach at all.
The court fails to consider the full scope of the role of defense counsel. The opinion indicates (at 76-77) that defense counsel acts both as an advocate for the defendant and an officer of the court. I believe that the role of defense counsel has an even more profound dimension. The adversary feature of the criminal justice system evolved as a control on governmental absolutism and is, therefore, a fundamental component of political liberty. Hazard, ETHICS IN THE PRACTICE OF LAW, 120-122 (1978). Viewed in this framework, the role of defense counsel goes beyond assisting in the search for truth or helping to convict the guilty and acquit the innocent. Beside these two functions, defense counsel also must maintain the integrity of our personal rights by assuring that the government meet the constitutional requirements that it both prove its case and give the defendant due process of law. These are rights which may be invoked by all defendants, not just the innocent. The constitutional guarantee of due process of law extends to all, even those whose innocence is subject to doubt and those whose guilt is certain. The system was designed to restrain governmental power and protect all citizens from tyranny. See generally Hamilton, Madison and Jay, THE FEDERALIST, (Scott ed. 1894) Nos. 8, 41-45, 70-78; Dworkin, TAKING RIGHTS SERIOUSLY.
In my view, therefore, defense counsel should never be put in the position of helping the government prove its case. Of course, counsel may not mislead, tamper with evidence, lie or promote such acts. To do so would violate his duty as an officer of a court which seeks to ascertain the truth. On the other hand, because defense counsel is neither an assistant to nor an investigator for the prosecutor, his function is neither to gather nor preserve inculpatory evidence for the prosecution. If he engages in such conduct, how can he then put the government to its proof? How can he be a zealous advocate for the defendant when at the same time he is likely to make himself a star witness for the prosecution?
I am led to the inevitable conclusion that defense counsel has no obligation to take possession of inculpatory evidence from third parties. Further, caution and common sense dictate that as a general rule he should never actively seek to obtain such evidence and should refuse possession even if it is offered to him. His guiding principle should be to leave things as they are found. If counsel has reasonable grounds to believe that evidence is in danger of being tampered with or destroyed by a third party, his obligations are satisfied by cautioning that person against such conduct. The majority opinion is ambiguous on this issue, but I believe that we should make it clear to the defense bar that the general rule to be followed in connection with inculpatory evidence is “hands off.”
Of course, there are limited exceptions to that general rule. The defense lawyer is justified in obtaining possession of evidence where necessary to test, examine or inspect that evidence in order to determine whether it is exculpatory. Also, the lawyer may expect to use the evidence in the representation of the client. Such limited circumstances are recognized in the standard proposed by the Ethics Committee of the Criminal Justice Section of the American Bar Association and referred to in the majority opinion (at 77-78); nothing in that standard indicates that defense counsel should otherwise actively seek to obtain inculpatory evidence.
Although the court purports “essentially” to adopt the standard (at 78), I believe it misconstrues it. The standard permits defense counsel to give inculpatory evidence to the prosecution only if it is required by court order or rule, if the item received is contraband or if it poses “an *597unreasonable risk of physical harm to anyone.” (See subsec. (a) and (d)). No provision is made for delivery of inculpatory evidence to the prosecution simply because defense counsel fears that it may be destroyed if given back to its source.
In fact, the standard does cover the situation posed by this case. One of the reasons which prompted defense counsel to take the watch from Ms. Heaton was the need to examine it to determine whether it was the watch involved in the burglary. (At 74). Subsection (c) of the Standard indicates that this is a legitimate purpose for obtaining the evidence. It also indicates that when lawyers have received evidence which proves to be inculpatory it shall be returned to the source “from whom the lawyer receives it” and enjoins the lawyer to “advise the source of the legal consequences pertaining to possession or destruction of the item.”
In my view, therefore, the standard clearly contemplates that the defense lawyer shall not obtain or take possession of evidence without good reason; but if he does receive it, when finished with it he must return it to its source and restore everything to the status quo ante. It is only if he finds that he is in possession of contraband or an item -which may cause serious physical injury to others that the standard permits counsel to deliver inculpatory evidence to the prosecution. Nor does the standard contemplate that the lawyer make himself a repository for the evidence. In fact, the standard indicates that the lawyer may retain evidence only: 1) if he fears that return to the source will result in its destruction; 2) if he believes that on return it may cause serious harm to others;
3) because he intends to test, examine or use the evidence in his representation; or,
4) because he cannot return it to the source. Only under these limited circumstances may the lawyer retain the item “in a manner that does not impede the lawful ability of law enforcement to obtain the item.”
Properly interpreted, therefore, the standard would instruct us as follows in the present case: if defense counsel had a legitimate reason to obtain the evidence, such as examination or testing, then it was proper to receive it from the third person who had possession. When so received, it was proper for defense counsel to retain the item while he examined it or had it tested. When he had finished with it and had discovered that he would not need it for trial, it was his duty to return it to the source with instructions as to the consequences of tampering or destruction. If he had a good faith belief that return to the source would result in damage to or destruction of the evidence, then it was his duty to retain the evidence in his possession “in a manner that [did] not impede the lawful ability of law enforcement to obtain the item.”
Thus, I believe the majority is incorrect in holding that defense counsel should turn the evidence over to the prosecution. This holding has not only made defense counsel an assistant to the prosecutor’s investigator but also an important witness for the prosecution. The future consequences of such a confusion of roles is bound to damage a system which, despite what we are told during periods of hysteria, has survived the test of time.
GORDON, V.C.J., joins in the dissent.