dissenting.
At appellant's trial on the charges, his daughter, the alleged child victim denied that appellant had assaulted her sexually. The prosecution was thereby put under extreme pressure to produce every serap of circumstantial evidence to support its several charges which spanned a three year period. At the end of its string of witnesses, the prosecution called appellant's ex-wife, Veronica Palfrey, the mother of the child victim, to the stand. Veronica Pal frey was not listed in the ordinary manner as a prosecution witness, and consequently defense counsel objected to her testifying. The court permitted her to testify because *272her name had come up in the course of pre-trial discovery.
Veronica Palfrey gave key testimony which in my mind provided substantial support to the state's case. She testified that the victim told her that appellant was fooling with her and that she then went to ask her mother Roxie Cade what could be done about it.
Veronica Palfrey testified at the post-conviction hearing that she was under a child neglect charge at the time of her testimony at trial and that her reason for testifying was that the detective, ".. has told me if I hadn't testified in his behalf that I was in just as much trouble as he was in, and I was facing a term of four (4) years in Women's Prison." She was then asked what she thought would happen if she didn't testify for the State, and she replied, "I would be doing just as much time, probably, as he was doing for nothing." Counsel for Douglas testified at post-conviction proceedings that he was not informed of these threats. After appellant's trial she made a plea of guilty and received two years on probation.
Denial of due process and grounds for reversal arise under the Indiana Constitution Art. I, § 12 and the Fourteenth Amendment when the police or the prosecuting lawyers negligently withhold material evidence. Hale v. State (1967), 248 Ind. 630, 230 N.E.2d 432. Evidence bearing upon the reliability of important state witnesses is material in this sense, Giglio v. United States (1972), 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, because there is a reasonable likelihood that it would affect the judgment of the jury. The detective created material evidence when he threatened Palfrey with maximum penalties, and there fell upon the state the duty in presenting that witness in court, to insure that this material evidence was before the jury or in the hands of defense counsel, before the witness stepped down.
Veronica Palfrey did, as pointed out by the majority, go on under questioning by the court and state at the post-conviction hearing that she had not lied at the trial, and the detective had not told her what to say. I cannot give the exceptional mollify- - ing foree to these statements that the majority does. It is not surprising that she would not tell the judge that she had lied under oath in his court, and furthermore, it is not merely the lie which the requirement of disclosure of this kind of influencing is intended to retard or expose, but the exaggeration and the subtle implication as well. Furthermore, it is obvious that the detective did not need to spell out the facts which he wanted her to testify to, since that was amply communicated by his order to get out there and testify "in his behalf", that is, in support of the charges.
It may be that the State needs to exploit and press to the maximum its natural advantages in order to protect children from their parents in incest situations. However that interest cannot be permitted to justify this type of prosecutorial overreaching. It is my judgment that appellant was denied a fair trial when the witness Palfrey was permitted to step down from the stand while the jury remained ignorant of the control which the prosecution was then exercising over her. I would reverse the judgment and order a new trial.