('concurring in part and dissenting in part). I concur with parts I, II, and in of the majority’s opinion. I disagree, however, with the majority’s conclusion that the Court of Appeals erred in finding a discovery violation.
i
The majority holds that the Court of Appeals erred in finding a discovery violation on the basis of facts the majority believes were not supported in the record. I find no error. The prosecutor violated the rules by failing to turn over to defendant the report prepared by the hospital laboratory and the physical sample taken from the victim.
The Michigan Court Rules, at MCR 6.201(A)(3), state with respect to expert witnesses:
*768A party upon request must provide all other parties: . . . any report of any kind produced by or for an expert witness whom the party intends to call at trial[.]
In this case, the Court of Appeals appropriately classified Dr. Randall as an expert witness. See People v Mikula, 84 Mich App 108; 269 NW2d 195 (1978).1 Thus, MCR 6.201(A)(3) applied to reports produced by or for Dr. Randall.
Dr. Randall testified that he observed sperm fragments under a microscope on a slide prepared from the wet swab sample taken from the victim’s rectum. He also testified that he sent the sample to the hospital laboratory for tests to be performed on it. The laboratory prepared a report which Dr. Randall reviewed before testifying at trial. Thus, the laboratory report was one produced for Dr. Randall, an expert witness whom the prosecution intended to call at trial.
Once becoming aware of the report on the morning before the first day of trial, the prosecutor should have turned it over to defendant, as required by MCR 6.201(A)(3). The prosecutor did not do so, but merely advised defense counsel of its existence. Thus, the failure of the prosecution to provide the laboratory report to defense counsel constituted a violation of MCR 6.201(A)(3).2
*769A second violation of the discovery rules occurred when the prosecutor failed to turn over to defense counsel the physical sample taken from the victim’s body. MCR 6.201(A)(6) states:
a party upon request must provide all other parties: ... a description of and an opportunity to inspect any tangible physical evidence that the party intends to introduce at trial.
Dr. Randall testified about what he observed when he examined the physical sample. Despite the fact that the physical sample was never introduced as evi*770dence at trial, I believe that Dr. Randall’s testimony implicated MCR 6.201(A)(6). His testimony brought into issue the tangible physical evidence and what it demonstrated. Accordingly, defendant should have had an opportunity to inspect the physical evidence as the court rule requires.3
n
I agree with the majority that the error was harmless. However, I reach that result by a different route. The majority quickly classifies any error that occurred here as nonconstitutional error because “[t]here is no general constitutional right to discovery in a criminal case.” Ante, p 765, citing People v Stanaway, 446 Mich 643, 664; 521 NW2d 557 (1994). It goes on to find that the error was harmless, because defendant did not establish that, more probably than not, it was outcome determinative. Ante, p 766, citing People v Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
The majority’s statement is much too broad, and it fails to recognize that a discovery violation can result in constitutional error when it violates a defendant’s right to due process.
*771Defendants have a due process right to obtain evidence in the possession of the prosecutor if it is favorable to the accused and material to guilt or punishment. Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963); People v Carter, 415 Mich 558, 593; 330 NW2d 314 (1982). Material has been interpreted to mean exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v Agurs, 427 US 97, 104; 96 S Ct 2392; 49 L Ed 2d 342 (1976). The prosecution must turn over such evidence regardless of whether the defendant makes a request. Id. . . . The test for whether the material should have been provided ... is “whether it contains information that probably would have changed the outcome of [the] trial.” [Stanaiuay, supra at 666.]
However, in this case, defendant has not demonstrated that the physical evidence or the laboratory report would have been exculpatory. Thus, defendant is not able to establish constitutional error on the basis of the Stanaway test.
We have yet to address in a definitive manner the issue whether a constitutional due process violation can occur when a prosecutor fails to disclose inculpatory evidence.4 However, in People v Taylor, 159 Mich *772App 468; 406 NW2d 859 (1987), the Court of Appeals identified a test to use to determine the appropriate remedy to apply when a prosecutor fails to abide by a discovery order or agreement:
The question ... is first, whether the party’s interest in preparing his own case or his opportunity to test the authenticity of his opponent’s evidence has been prejudiced by a noncompliance with a discovery order or agreement, and second . . . what remedy may be appropriate giving due regard to the competing interests of the opposing party, the court, and the public. [Id. at 486-487.]
Here, the prosecutor’s failure to turn over the physical sample to defendant prejudiced defendant’s opportunity to test the sample and verify that sperm fragments were present. The prosecutor’s failure to turn over the laboratory report resulted in defendant having no opportunity to compare the report with Dr. Randall’s testimony and to search for inconsistencies. Thus, I agree with the Court of Appeals when it stated:
We cannot expect a defendant and his attorney to be prepared to meet such critical physical evidence in less than one day and without access either to key reports or to the physical evidence itself. By its nature, such physical evidence is generally so persuasive to a jury that there is an obligation on the part of the prosecutor and the court to fairly share it with defendant. And not only was defendant entitled to have a fair chance to examine the evidence *773against him, but the jury was entitled to make a decision based on all of the evidence available.
With respect to the second prong of the Taylor test, the trial court should have granted some remedy to defendant on the basis of the discovery violation perpetrated by the prosecution.5 Suppression was an option. However, the trial court should have ordered the prosecution to turn over the laboratory report and the physical sample to defendant. This would have protected defendant’s right to a fair trial, at least minimally, without implicating the competing interests of the other parties.
I agree with the majority, however, that, absent a request by defendant, the trial court was not obligated to grant a continuance to defendant. See People v Blue, 255 Mich 675, 679; 239 NW 361 (1931); People v Ranney, 153 Mich 293, 299; 116 NW 999 (1908); People v Ecarius, 124 Mich 616, 620; 83 NW 628 (1900).
While I would conclude that the error in this case was of constitutional proportion and that it was preserved by defendant’s motion to suppress,6 defendant has not raised those issues. Instead, he argues that the error was outcome determinative under Lukity, *774supra. Even applying the higher standard for preserved constitutional error, I find that the trial court’s error in not granting some relief to defendant was harmless.
Defendant was charged with first-degree criminal sexual conduct. MCL 750.520b(l)(a); MSA 28.788(2)(l)(a) defines the offense:
A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and . . . [t]hat other person is under 13 years of age. [Emphasis added.]
Defendant admitted that he digitally penetrated the victim. Defendant’s admission was recorded in a signed statement and admitted into evidence at trial. Thus, even absent testimony by Dr. Randall, defendant’s admission of digital penetration sufficiently established the penetration element of first-degree sexual conduct.
Furthermore, the facts of this case support a conviction for CSC-l, only. Second-degree sexual conduct is defined in relevant part as “sexual contact” with someone under the age of thirteen. MCL 750.520c; MSA 28.788(3). There was sexual contact here, but the charge was based on penetration. The charge was not based merely on contact, touching, or fondling, and there is no evidence to support such a charge. The record demonstrates that defendant digitally penetrated the victim. There is nothing in it that would justify the jury finding defendant guilty of a lesser charge on the basis of improper sexual contact alone. Accordingly, I do not see how the alleged discovery violations could have caused the jury to convict *775defendant of a higher charge than what they otherwise might have considered.
I conclude that the trial court’s error in not providing some sort of remedy to defendant for the discovery violations perpetrated by the prosecution was harmless beyond a reasonable doubt. Therefore, I concur with the majority’s decision to reverse the judgment of the Court of Appeals.
Cavanagh, J., concurred with Kelly, J. Makkman, J., took no part in the decision of this case.In Mikula, the examining doctor testified about the condition of the girl’s genital area and opined that the condition was consistent with penetration by an adult penis. Id. at 112. The Court of Appeals referred to the testimony as expert medical testimony. Id. Similarly, here, Dr. Randall testified that the injuries he observed on the victim were consistent with what an adult penis would cause.
The majority asserts that the record does not disclose whether the report was actually turned over to defense counsel. Ante, p 761, n 4. While that is strictly accurate, an inference can be drawn from the record that defense counsel never received the report.
*769Counsel stated that the prosecutor advised him that sperm was found in the sample taken from the victim. But he never stated that the prosecutor gave him the physical sample or a report identifying what was in the sample. Separate Record Tr at 16-17. The judge then obtained the emergency room report that was turned over to defense counsel, and the following exchange took place:
The Court: Report? This is the report turned over to defense counsel?
[Prosecutor]: Yes. You want the whole thing?
The Court: No, let me—I know what I’m doing here. Just trust me. I’E—I’m asking him these questions for a particular reason. . . . Do—is this the report that you got ... Mr. Robinson [defense counsel]?
[Defense Counsel]: Yes, Your honor. [Id. (emphasis added).]
The majority contends that this exchange has no bearing on whether defense counsel was provided a copy of the laboratory report. It asserts that I have taken the quotation out of context. Ante, p 761, n 4.
One can deduce from the discussion that defense counsel received only one report from the prosecutor, that being the emergency room report. The parties and the judge refer to the report that defense counsel received in the singular. No mention is made of any other report being turned over to defense counsel.
I acknowledge that the discussion did not center on the laboratory report. My point is that it was a discussion in which one would expect the laboratory report would have been mentioned, had defense counsel received it. Thus, although not dispositive, it has some bearing on the question.
A contrary finding will essentially render the court rule illusory by providing a loophole that permits avoidance of the disclosure of physical evidence. Rather than disclose the evidence, the prosecution can destroy it and simply call a witness to testify about what he saw when he inspected it, before it was destroyed. Accordingly, an important safeguard against perjured testimony will be lost.
This is especially relevant here, because we do not know if the physical evidence was actually exculpatory. It was never turned over, and the record does not indicate what happened to it.
The Court of Appeals has held that a prosecutor’s failure to comply with discovery agreements and orders results in an unconstitutional denial of due process, even if the undisclosed evidence was inculpatory. See People v Florinchi, 84 Mich App 128; 269 NW2d 500 (1978); People v Pace, 102 Mich App 522; 302 NW2d 216 (1980); People v Turner, 120 Mich App 23; 328 NW2d 5 (1982). However, in People v Taylor, 159 Mich App 468, 471; 406 NW2d 859 (1987), the Court of Appeals purported to reverse its earlier decisions and held that prosecutorial violation of discovery agreements should not be “elevated to constitutional rank.” The Court certified that its Taylor decision conflicted with its earlier decisions, yet we declined the opportunity to order further consideration of the issue. 428 Mich 913 (1987). Thus, the status of error that results from a prosecutor’s failure to abide by discovery orders or agreements remains uncertain. See Mattis, Stare decisis within Michigan’s Court of Appeals: Precedential effect of its decisions on the Court itself and on Michigan trial courts, 37 *772Wayne L R 265, 291-294 (1991). However, we did reverse a defendant’s conviction summarily and remand for a new trial in a case where a trial court erred by admitting letters written by a defendant. The prosecution had not disclosed the letters as required by a discovery order. People v McPherson, 419 Mich 951 (1984). We did not identify the error as a violation of due process, however.
The competing interests of the parties, the court, and the public, include: (1) the prosecutor’s interest in convicting criminals through the use of all relevant and admissible evidence, (2) the defendant’s due process right to a fair trial, (3) the court’s interest in expeditiously administering justice, and (4) the public’s interest in judicial integrity and the protection of society from criminals.
I would find a constitutional error on the basis of the earlier Court of Appeals decisions and our order in McPherson, supra. Preserved constitutional error is analyzed under the harmless-beyond-a-reasonable-doubt test. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). Reversal is necessary if the error was prejudicial. Id. at 562.