(concurring). I concur in the result reached by the majority principally because I cannot conceive how to reasonably implement for trial courts the unworkable mandate of People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), which condemns itself out of its own text. High court decisions which arrive through a sometimes tortuous dialectic process at a pronouncement of new legal principles should not be cast on lower courts to apply retroactively.
Our decision in Mata was released April 5, 1976. The following July the Supreme Court decided *211People v Atkins. The issue in Atkins for which we are ordered to reconsider Mata is "whether the jury was misled by a failure to disclose the possibility of future favorable treatment for the addict-informer testifying against defendant”. 397 Mich at 167. The Atkins Court discusses the issue in the context of a Federal "trend”. Can there be any doubt that requiring a cautionary instruction on the basis of an informer’s subjective expectations is innovative?
Although the Court set forth broad rules, it made no application of those rules in the case before it. The distinction between "reasonable expectations” and "future possibilities” is nebulous.1 In the present case, one Thomas Cooper testified at trial that he did not receive any promises in exchange for his testimony or work as an informant, nor did he expect any deals. At the evidentiary hearing, held to determine if any promises of leniency had been given, the following exchange took place between Cooper and defense counsel on redirect examination:
"Q Can you explain to me the difference of hoping the case would be favorably disposed of and having an expectation that the case would be disposed of favorably?
"A Well, since I don’t have a dictionary with me, I can’t define the two words for you.
"Q Okay. A few minutes ago you stated that at the time you stated in the Mata trial — at the time you testified under oath that you did not expect some deals to be made in the future in those cases, that that statement was not true. Now, in regards to Mr. Den-*212ton’s cross-examination, you’re saying that at the time you made that statement, the statement was true.
"A The statement is true as it reads.
"Q It was true?
"A If you read the words, the statement is true.
"Q Okay, let’s try again. On direct examination you stated that at the time you testified in the Mata trial, that you did not expect any deals to be made in the future in your pending cases; that that statement was not true. Then on cross-examination, you stated, 'Oh, my testimony in the Mata case was true.’ I’m asking you again, on direct examination, at the time you testified in the Mata case that you did not expect any deal in the future, was that testimony true at the time or not?
"A The statement is true as it reads.
"Q Was it true at the time that you made it in January 25 of 1974; was it true then?
"A Yes.
"Q So these assurances, these representations by the Vice Squad, the statement by Officer Newvine or Shobert that Brady Denton had said your cases wouldn’t be disposed of until after you had testified in these cases, that didn’t lead you to expect that there might be a deal in the future?
"A There was no promise of any deal in the future, no.
"Q Did that lead you to expect that there might be a deal in the future? 'Everything is going to be stopped in your cases pending your testimony in these narcotics cases, and then we’ll take care of you, Mr. Cooper.’ That does not lead you to expect a deal in the future?
"A No.”
The difficulty is apparent from the above exchange. If there is a logical inference that a reasonable expectation of leniency has resulted from contact with the prosecutor, Atkins appears to require the prosecutor and the trial judge (if it comes to his attention) to disclose such fact to the *213jury.2 Was the prosecutor required to disclose to the jury that Cooper had a "reasonable expectation of leniency” despite Cooper’s testimony to the contrary? The majority opinion in Atkins does not require disclosure of "future possibilities”, but appears to require disclosure of "reasonable expectations”. At the evidentiary hearing, Cooper said that he hoped that he would receive leniency. If no promises of leniency had been made, is disclosure by the prosecutor of the witness’s reasonable expectations possible?
What is leniency? Is leniency a plea bargain? Is leniency a prosecutor’s recommendation of probation or of a sentence in the county jail, a recommendation to the Michigan Training Unit, a specific recommendation for a minimum term of years? What is reasonable? Is it in the light of how the witness has been treated in the past? Is it reasonable to assume that charges being held in abeyance will be dropped? Reasonable to whom; to the prosecutor, to the witness, to the defense attorney, to the trial judge?
Should this play within a play unfold before the jury or should we add to the Robinson hearings, the Tucker hearings, the Walker hearings, the Luck-Farrar hearings, the McCoy hearings,3 etc., an Atkins-Mata hearing where the question of a witness’s "reasonable expectation of leniency” can *214be thrashed out? Who determines, and when, if a false impression has been given? Does the prosecutor rise in the middle of the defense attorney’s cross-examination and offer his unsworn impressions as an officer of the court? How does he discharge his "affirmative duty” to the jury? If there is a particular practice in a given county, is that to be shown to the jury? How? By testimony of "expert” defense and prosecution attorneys? By probation and parole officers? By clerks and written records?
If I were called upon to implement an AtkinsMata rule of procedure, I would suggest the following and declare it to be prospective in application:
1. If a prosecution witness, whether an informer, accomplice, addict, co-conspirator or other person having an existing motivation to bargain with the police or prosecutor concerning charge(s) or sentence pending against him,4 gives testimony implicating another, he is presumed to have testified with a reasonable expectation of some form of leniency. In such cases the court shall so instruct if, but only if, requested by the defense.
2. If the prosecutor asserts that the witness has no reasonable expectation of leniency, the trial judge shall conduct a hearing in the absence of the jury wherein "both sides should be given the opportunity to develop the record with respect to the fairness of such a proposed instruction”, Atkins, supra, p 171, and the trial judge shall make an appropriate ruling thereon.
Obviously if the above procedure had been applicable to the trial of Carlos Mata, counsel’s acquies*215cence in the trial court’s instructions would require affirmance. To hold otherwise would impose an obligation of awareness on the part of the trial court that a Federal "trend” would later emerge to become Michigan precedent requiring the giving of an unrequested cautionary instruction — -an intolerable burden.
I concur in the result reached by the majority.
The majority here mentions, but does not analyze, another Atkins imponderable — "expectation of consideration”. If we follow the direction in which Justice Levin is leading, consideration is apparently the key word. See People v Crawl, 401 Mich 1, 34, 35; 257 NW2d 86 (1977).
Justice Levin (concurring) in Atkins, supra, at 179 writes:
"We all begin with the same premises. A prosecutor has an affirmative duty to disclose to the jury any promise of leniency. He has the same duty of disclosure regarding reasonable expectations, as opposed to promises, of leniency or other rewards for testifying.”
People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), People v Tucker, 19 Mich App 320; 172 NW2d 712 (1969), aff'd, 385 Mich 594; 189 NW2d 290 (1971), aff'd 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974), People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), Luck v United States, 121 US App DC 151; 348 F2d 763 (1965), People v McCoy, 392 Mich 231; 220 NW2d 456 (1974).
This may not necessarily require that a warrant be issued on complaint or an information or indictment be pending and should be broadly construed by the trial court to include the investigative process if such process has evolved to a point where the witness has been focused upon as a potential defendant.