dissenting:
Our case law states that an accused, in seeking to overcome the government’s privilege of protecting a surveillance site, must demonstrate that (1) he needs evidence of the location to conduct his defense and (2) that there is “no adequate alternative means of getting at the same point.” Thompson v. United States, 472 A.2d 899, 900 (D.C.1984). Need can be demonstrated if an accused can show “some” vantage point in the relevant area that does not permit a clear view. Jenkins v. United States, 541 A.2d 1269, 1272 (D.C.1988). This was the position taken by appellant’s counsel at trial. Yet his efforts to have the court balance his need for evidence against that of the government’s need for secrecy were thwarted by the trial court’s emphatic statement, repeated in theory, “unless you can tell me there’s no building from which he could have ohserved those transactions, [it] doesn’t matter that there were some.”
In denying appellant access to evidence which he claims was necessary to his defense, the trial court has required him to meet a threshold test which is impossible for anyone to meet. Today, in this court, the majority (sealing the fallibility of its own reasoning) candidly states, “If the [trial] judge’s words are taken literally, the accused would be obliged to make a simultaneously impossible and useless threshold showing.” Yet, on the theory that the trial court “misspoke” and that appellant’s trial counsel “misread” the case law of our appellate decisions, the .majority affirms appellant’s conviction, announcing for the first time yet another possibly insurmountable (and confusingly inexact) barrier for a defendant to meet in seeking to ascertain the location of a secret observation post of a witness against him.1 The majority reasons that the trial court’s invitation to counsel to “come back” (on the court’s theory) somehow left the matter open. I cannot accept the majority’s assessment of the trial court’s ruling any more than I can accept its apparent relegation of this error to the status of what, for example, would be the laying of a proper foundation for the routine introduction of seemingly irrelevant evidence. The evidence sought here was constitutionally relevant.
In a broad sense, this case is not about buildings and obstructions; it is about a citizen’s right to confront a witness against him — a hallowed right grounded in the Sixth Amendment to the Constitution. In balancing that right of confrontation against the “qualified” privilege of the government to withhold information at trial, the Supreme Court has made it clear that, based on the requirements of fundamental fairness, if the information is “relevant and helpful to the defense of the accused or is essential to a fair determina*500tion of a cause, the privilege must give way.” Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639 (1957). See also Jenkins v. United States, supra, 541 A.2d at 1272; Thompson v. United States, supra, 472 A.2d at 900; Hicks v. United States, 431 A.2d 18, 21, (D.C.1981). Indeed, the government in this case, in conceding that the employment of evidentiary privileges is always to some extent “in derogation of the search for truth” (citing United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1973)), also concedes that an accused can “pierce the veil” of the government’s privilege by showing that its invocation would result in an unfair trial based upon the specific circumstances of the case. See Hicks, supra, 431 A.2d at 21.
Here there is no question that the location of the observation post manned by Officer Burton would have been relevant to the defense of appellant. It was the “pitch black” locus from which the officer made his incriminating observations. Moreover, the location was more than relevant to the defense. It may have been essential to a fair trial. Burton was the only officer— the only witness — to identify appellant as the seller of the drugs recovered outside the viewing area by other officers. In the specific circumstances of this case, it was Burton’s testimony alone, that criminally implicated appellant.
In defense, appellant testified that his residence was near the park. Although he was present in the park when Officer Burton entered therein (on the officer’s way to the observation post)2 appellant left the site, returning only minutes before he was arrested. He argued that his arrest was the result of mistaken identity. He presented alibi witnesses who testified that he was not in the park at the time of the narcotics sales. To substantiate the mistaken identity theory, however, evidence casting doubt on the reliability of the officer’s testimony was necessary. See Hicks, supra, 431 A.2d at 22 n. 4. This was what appellant’s counsel sought to emphasize during cross-examination — proffering photographs “that indicate there are buildings from which the officer would not be able to observe the transaction or the passing of money.” Yet his probe even as to generalized location was effectively foreclosed by the government’s vigorous objections which the trial court sustained.3
Once appellant met the requirements of showing need, the court was required to balance the “defendant’s personal interest in avoiding wrongful conviction” against the government’s interest in protecting its surveillance site. Thompson, supra, 472 A.2d at 900-01. Having erroneously concluded that appellant’s showing of need was inadequate, the trial court never engaged in this balancing and therefore never reached a determination on the disclosure issue. Keeping in mind that an important substantive right of appellant is involved4 and that a balancing of the two societal interests mandates adherence to the “fun*501damental requirements of fairness,”5 I would remand to the trial court for a hearing so that the trial judge can engage in the appropriate balancing test and, if the court concludes disclosure is required, for a new trial.
. The majority states, "we therefore hold that the defendant is obliged to show not only that there are locations from which the view is impaired or obstructed, but also that there is some reason to believe that the officer was making his observation from such a location." (Emphasis added) (Majority op. at 497).
. There is an implied suggestion of more than mistaken identity. In the vignette described by the majority, despite the “diversionary tactic” employed initially by the officers to permit Burton to reach his hiding place unobserved, Burton actively participated in such tactic. There were conflicting accounts of the resulting encounter with appellant. (See Majority op. at 492 note 1.) This was a situation where the jury was required to believe either Officer Burton or Mr. Anderson.
. During cross-examination, appellant’s counsel, through use of diagrams and photographs of the area, established the exact location of the alleged sales. Counsel then attempted to challenge the ability of the officer to observe by inquiring whether the officer was on the south side of the street. The government objected to the question and the court sustained the objection. Counsel then inquired whether the officer was in a building. The government again objected and objection was sustained. In a bench conference, counsel requested permission from the court to inquire into the officer’s location, proffering that he had photographs indicating the existence of buildings in the area from which the officer would not have been able to observe appellant. The trial court refused to grant the request making what was a misstatement of the burden of proof.
. Id. (quoting Roviaro, supra, 353 U.S. at 60, 77
. Thompson, supra, 472 A.2d at 900. We note the suggestion in Thompson that the "balancing process may be different at the trial stage from what it would have been at the pretrial stage. Id. (citing Hicks, supra, 431 A.2d at 22). *501S.Ct. at 628).