I agree that defendant’s conviction cannot be affirmed, because I think Supreme Court erred by not reviewing Hybrid’s tapes in camera. I do not agree, however, that on the present record defendant has made the showing required by the Shield Law that the tapes were “critical or necessary” to the maintenance of his defense.
I
A bullet from defendant’s gun killed a 15-year-old boy, Christopher Hernandez, who had the misfortune to be in the neighborhood when defendant and three other men were trying to settle a disagreement. Defendant gave written and oral statements describing the event to a police officer, and later gave an oral statement to an assistant district attorney. In accordance with common practice, the police did not tape defendant’s first oral statement, though the prosecutor did tape the second, and the tape of the second statement was turned over to defendant. This case is unusual because the first oral statement was taped, with the consent of the police, by a documentary film maker, Hybrid Films, Inc., which did not give copies of the resulting tapes to either the police or the defendant.
At trial, defendant’s principal defense was justification—he claimed he was firing his gun in self-defense, and he relied on the statements he had given to the police and prosecutor to support this assertion. However, defendant had moved before trial to suppress these statements, and he suggested in closing argu*352ment that the tactics used by the police to obtain the statements were coercive. Thus, defendant found himself arguing, in effect: “I was coerced into making the statements that prove my innocence.”
In seeking to obtain enforcement of his subpoena to Hybrid for the tapes of his first interrogation, defendant argued that the tapes could give substantial support to either or both of the contradictory themes of his defense. That is, the tapes might contain descriptions of the incident at issue that made defendant’s defense of justification significantly more convincing; or they might show that he was coerced by the police. In my opinion, defendant was correct in saying that both these possibilities existed, and the possibilities were real enough that Supreme Court should have examined the tapes in camera. It cannot be said as a matter of law, on this record, that defendant did not meet the requirements for overcoming Hybrid’s statutory privilege under New York’s Shield Law. But I find even less basis for holding, as the majority does, that the requirements of the Shield Law were met here.
The Shield Law (quoted in majority op at 345-346) provides that Hybrid may not be compelled by threat of contempt to disclose its tapes unless the tapes are (1) “highly material and relevant,” (2) “critical or necessary to the maintenance of [defendant’s] . . . defense or proof of an issue material thereto” and (3) “not obtainable from any alternative source.” I acknowledge that the first and third of these requirements are satisfied here. A defendant’s recorded statement about his alleged crime will almost always, if not always, be “highly material and relevant” at a criminal trial; and certainly no evidence of defendant’s first oral statement comparable in value to video and sound recordings is available from any source but Hybrid.
But I do not see how anyone can conclude, without examining the tapes, that they are “critical or necessary” to the maintenance of defendant’s defense or proof of an issue material to it. The tapes might well show that defendant’s interrogation by the detective was not particularly coercive (indeed, most police officers probably do not act in a coercive way when they know they are being taped), and that the version of the facts he gave to the detective was no more favorable to himself, or insignificantly so, than the version he gave to the assistant district attorney. If that is true, the second element of the statutory test is not met. I would not give the statutory words “critical or necessary” a draconian reading; I would not hold that a person *353seeking to compel disclosure under that statute must show that the evidence he seeks is likely to be decisive in the case. But the words must mean, at least, that the evidence is favorable to the party seeking it in some significant way. The record does not show that that was the case here.
The majority finds the “critical or necessary” branch of the statutory test to have been met based on its recital of what the defendant contended that the tapes would show. I see nothing in the statute that would justify setting aside the privilege on the basis of a party’s assertions, without verifying that those assertions are correct. And even apart from that, I find defendant’s optimistic description of what might be in the tapes, as summarized by the majority (majority op at 348-349), to be rather unimpressive. Assuming the tapes to be exactly as defendant describes them, they fall well short of proving either that his confession was involuntary or that his killing of Christopher Hernandez was justified. Thus, while I believe Supreme Court should have examined the tapes before making its decision, I am skeptical it would have found sufficient reason to order the tapes’ disclosure.
II
Having found the Shield Law test to be met, the majority rightly does not decide whether “the Shield Law is unconstitutional as applied to criminal cases” (majority op at 346). I do not attempt to answer that question either, but my view of what the question is differs somewhat from the majority’s.
To me, the constitutional question does not require us to balance the important “competing interests” of free press and fair trial (see majority op at 346-347), but only to decide whether the balance the Legislature struck in the Shield Law is within the limits set by the State and Federal Constitutions. Accordingly, I think the most relevant cases are not those cited by the majority in its summary of the issue (majority op at 347 n 3), but cases addressing the issue of when a state-law rule that prevents the presentation of evidence must give way to a criminal defendant’s constitutional right to a fair trial (see Chambers v Mississippi, 410 US 284 [1973]; Crane v Kentucky, 476 US 683 [1986]; People v Robinson, 89 NY2d 648 [1997]). I would hold the Shield Law valid if it complies with the limitations reflected in those cases, and invalid if it does not.
I would reverse defendant’s conviction solely on the ground that Supreme Court erred by not reviewing the tapes in camera, and would remit the case so that the tapes can be reviewed.
*354Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo and Read concur with Chief Judge Kaye; Judge R.S. Smith dissents in part and votes to reverse and remit to Supreme Court for further proceedings in a separate opinion.
Order reversed, etc.