dissenting.
I strongly dissent from parts II D. and E. of the majority opinion.
LATE (MID-TRIAL) DISCLOSURE OF WITNESS AND BLACK’S TESTIMONY
It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, it makes all the difference in the world whether one approaches a defendant’s basic right to fair notice and a reasonable opportunity to defend himself as a fundamental protection grounded in procedural due process, or one approaches it as little more than a formality, subject to the needs and vicissitudes of the state. I had thought that a criminal trial “by ambush” was a phenomenon of the past. Unfortunately, it has reared its head in this case to give the state its conviction, in the name of expediency, at the cost of reasonable fairness.
A little procedural history is in order. The indictment in this case was handed down on January 3, 1996; the trial was set for April 9. The defense filed its Motion To Compel Discovery on February 15. On the evening of the first day of trial, after the jury had been seated and sworn and after opening statements, the state notified counsel that a “new” witness by the name of Maia Black had been located. The state refused to disclose the nature of her testimony or her unlisted California phone number because the prosecutor did not want defense counsel to talk with her before he had a chance to interview her.1 It was not until April 11, late in the afternoon on the third day of trial, that the defense got a chance to see Black and hear what her testimony was likely to be.2
The defense was given the weekend to prepare for what the state referred to as “the most compelling evidence in this case.” The prosecutor further asserted, “The probative value, Your Honor, of this evidence is extremely, extremely important and extremely compelling. This is not, you know, some slight evidence that we’re talking about here.” Aso, when defense counsel asked for a continuance beyond Monday, the prosecutor stated: “It would be an extreme hardship for Maia Black if the court were to continue her testimony any further. She had a very difficult time deciding to stay over the weekend, because she had just started a job, and you know, I was very — I mean if she hadn’t of stayed, it really would have severely damaged the state’s case.”3
This most compelling evidence related to events occurring at least eleven years earlier *612in a completely different context from the thrust of the state’s indictment. Even assuming the marginal relevancy of such testimony, any practitioner of even marginal competency is now faced with the Herculean dilemma of trying to prepare, mid-trial and after strategic and tactical decisions have been made, to cope with this bolt out of the blue (or rather, from Oakland). I fully agree with the defense assertion that expecting it to meet this most compelling evidence in the case by working on it over the weekend does fly in the face of reason. See and compare State v. Lamphere, 130 Idaho 630, 945 P.2d 1 (1997). Put into the perspective of, at best, a weak and circumstantial state’s case, the defense has literally been bushwhacked in the name of expediency. The state should not be rewarded for its lack of diligence and/or fortuitous good fortune to the utter detriment of defendant’s right to due process.
The Tapia decision relied upon by the majority is notably distinguishable in several important respects. First, the newly disclosed witnesses testified to conversations relative to the underlying charges of conspiracy that occurred at or about the time of the incidents under indictment with one of the co-conspirators, not to completely unrelated events occurring eleven years earlier. These witnesses did not testify to additional sexual acts by the defendant; their testimony simply served to corroborate the existing testimony of the victim regarding her abuse. The Court made it a point to state that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice, which “is particularly true since the testimony did not describe any additional sexual acts by Tapia.” Second, the court found that the testimony was particularly relevant because it was evidence of the defendant’s scheme or plan to subject a particular eleven-year-old girl to sexual acts and because it showed the defendant’s preparations to put this specific plan into action as well as his intent to gratify his sexual desire for this adolescent girl. Finally, the defense was given full access to the new witnesses and had the opportunity to conduct a thorough, recorded interview with them prior to their court testimony.
This is a far cry irom the scenario facing the defense in our case. Black testified regarding the defendant’s actions toward her which, at the time (11-14 years prior) she interpreted as horseplay, but which in hindsight she now interpreted as intentional and sexualized. Defense counsel argued that prejudice would result from the admission of Black’s testimony for the following reasons: (1) opening statements had already been made and the defense had already disclosed the theory of the case to the jury (i.e.accident, horseplay); (2) defense counsel had spent its time, money and efforts preparing the case based upon this theory; (3) defense counsel did not have adequate time to meet this undisclosed evidence over a weekend; (4) defense counsel would be unable to find any corroboration of things defendant told her that would dispute or at least cast doubt upon Black’s credibility/testimony as she had left Idaho seven years ago; and (5) defense counsel’s expert was unable to be present to hear Black’s testimony and offer defense counsel advice regarding possible credibility issues and points of cross-examination.
The Idaho Supreme Court has established that “late disclosure of evidence requires a reversal of conviction if the lateness of the disclosure impaired the defendant’s constitutional right to receive a fair trial by affecting the defendant’s ability to prepare and present his defense.” State v. Araiza, 124 Idaho 82, 93, 856 P.2d 872, 883 (1993); State v. Pizzuto, 119 Idaho 742, 751, 810 P.2d 680, 689 (1991) (“[t]he test for reversible error is whether lateness of disclosure so prejudiced defendant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”), overruled on other grounds by State v. Card, 121 Idaho 425, 432, 825 P.2d 1081, 1088 (1991); State v. Olsen, 103 Idaho 278, 283, 647 P.2d 734, 739 (1982) (“[wjhere the question is one of late disclosure rather than failure to disclose, the inquiry on appeal is whether the lateness of the disclosure so prejudiced the defendant’s preparation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”); State v. Smoot, 99 Idaho 855, 859, 590 P.2d 1001, 1005 (1978), quoting United States v. Miller, 529 F.2d 1125, 1128 (9th Cir.1976) *613(the appropriate inquiry on appeal “is whether the lateness of the disclosure so prejudiced appellant’s preparation or presentation of his defense that he was prevented from receiving his constitutionally guaranteed fair trial.”).
How can our system of justice reasonably expect competent defense counsel to meet Black’s testimony; even assuming it should be admitted under I.R.E. 404(b), scrambling over a weekend while in the midst of trial under the circumstances described above? Compare State v. Stradley, 127 Idaho 203, 899 P.2d 416 (1995). The prosecutor’s remarks quoted above offer compelling argument (hoist on his own petard, I would say) for why this mid-trial disclosure flies in the face of defendant’s right to receive a fair trial and significantly impaired his right to prepare a defense.4 Given the marginal nature of the state’s case, the “late” disclosure, the, at best, marginally relevant nature of this testimony, its total remoteness to the time frame of the indictment, its lack of similarity to the context of abuse allegations alleged, and its prejudicial impact; the defense has made a most credible prima facie showing that the late disclosure, coupled with the failure to grant a meaningful continuance or mistrial, prejudicially impaired Byington’s defense and that there is a reasonable probability that but for these rulings, the result of the proceedings would have been different.5 A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. See State v. Higgins, 122 Idaho 590, 597-98, 836 P.2d 536, 543-544 (1992), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
I am further constrained to the view that Black’s testimony should not even have been admitted — certainly not on the state’s casein-chief — irrespective of the unfair surprise. Given the results of the motion in limine (Part C of the majority opinion), and the circumstances surrounding her testimony discussed above, I would hold that the prejudicial impact far outweighs any limited probative value it may have had. A loose relevance of alleged prior bad acts based upon unremarkable similarities of conduct remote in time is not sufficiently probative to justify its admission here, especially where the danger is so great that its emotional impact will serve mainly as a prosecutorial vehicle for showing defendant’s character propensity is such that he acted in conformity therewith.
Accordingly, I respectfully DISSENT and would overturn this conviction and remand for a new trial.
. The name of Black had surfaced no later than March 20, 1996, when Byington’s mother referred to her during a hearing on motions to suppress and in limine.
. The defense was not given the opportunity to cross-examine Black during her offer of proof.
.This is the same "state’s case,” I presume, that the prosecutor was fully prepared to take to trial just the week before without any knowledge of or reliance upon Black’s testimony.
. Had Black been disclosed just prior to picking the jury, it would have been incumbent upon the trial judge to grant a reasonable continuance; after all, the case was barely three months old and the defendant was not in custody. It should make no difference that the disclosure came after jeopardy had attached. Indeed, the circumstances are even more compelling here! To condone the state's request under these circumstances is to render Criminal Rule 16 a nullity and send out a clear message that it may be circumvented, with impunity, by the state.
. I query the Tapia Court’s adoption of a standard that to prove prejudice, "a defendant must show there is a reasonable probability that, but for the late disclosure of evidence, the result of the proceedings would have been different.” 127 Idaho 249, 255, 899 P.2d 959, 965 (1995). Tapia engrafted this prejudice standard from our Court’s decision in State v. Spradlin, 119 Idaho 1030, 1034, 812 P.2d 744, 748 (Ct.App.1991), which in turn engrafted the definition of prejudice from Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Parrott v. State, 117 Idaho 272, 274-75, 787 P.2d 258, 260-61 (1990). The purpose of the prejudice standard as set forth in Strickland and Parrott is to determine whether, absent counsel’s ineffectiveness, the result of the proceeding would have been different. This reliance on the standard a defendant must meet in order to demonstrate constitutionally ineffective assistance of counsel seems inapposite to the issue of whether the state’s failure to timely disclose significant inculpatory evidence deprived the defendant of a fair trial. Perhaps a more appropriate method of analyzing this type of violation would be to require the offending party to demonstrate that the violation did not prejudice the non-offending party (see, e.g., State v. Knight, 734 P.2d 913 (Utah 1987) (When the defendant can make a credible argument that the prosecutor's failure to disclose has impaired the defense, it is up to the State to persuade the court that there is no reasonable likelihood that absent the error, the outcome of trial would have been more favorable for the defendant.)), i.e., something more akin to a harmless error standard.