(concurring in result).
I concur in the result reached by the main opinion in reversing and remanding for a new trial by reason of the error in the exclusion of the Frankie Williams deposition.
However, I must respectfully disagree with that portion of the opinion which upholds the refusal of the trial court to require the state to produce evidence favorable to the defendant.
Under the law as declared in State v. Thompson (Mo.Sup. banc) 396 S.W.2d 697, 700, following Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and in Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, “* * * the suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process. * * *” The first essential of the rule is the existence of favorable evidence in the hands of the prosecution. If the evidence exists it does so regardless of whether defendant knows of it. Therefore, we should not decide the question as to error in refusing defendant’s motion to produce evidence favorable to him on whether he is able to specify in advance what he wants. Whether he is attempting a “fishing expedition” or knows exactly what the police have does not change the basic constitutional principle that the prosecution cannot fail to disclose favorable information and that if it does, the failure will invalidate the conviction.
Assume for example, that defendant is charged with murder and that his defense is that he acted in self defense. Assume further that entirely unknown to defendant there was an eye witness across the street at an upstairs window who saw the entire affair and who would testify to . facts which would show that defendant was acting in self defense. Suppose that the police have the name of this witness and a statement from him. In this example if the defendant moved for production of any evidence in the police files which was favorable to him he would be acting merely on hope and without being able to demonstrate any basis for his application. Yet it would be a miscarriage of justice not to make available to defendant a witness who might establish his innocence.
We say failure to disclose favorable evidence is not consistent with due process, but in practice we qualify the rule by not forcing the prosecution to live up to it unless defendant can specify what it is the prosecution is withholding that is favorable.
Therefore, it seems to me that we must make effective the constitutional right which the defendant has not to be convicted without due process by requiring the prosecution, on motion, to produce the file for the inspection in camera by the trial judge. The trial judge can examine the file and order production of evidence in the possession or control of the prosecution which is favorable to the defendant and which might be persuasive to a jury. This does not mean that the prosecution need *30open its file to the defendant but it does mean that the defendant can have the protection of an impartial judge looking at the prosecution’s file and seeing that defendant’s constitutional rights are protected in this regard.