dissenting:
I would affirm the judgment of conviction and the judgment of the Court of Special Appeals and would hold that the trial court did not err in refusing to order disclosure of the police officers’ statements made in connection with the Police Department Internal Affairs Investigation.1 Under the circumstances presented in this case, the State was not required under Jencks-Carr to produce those statements because they were not in the possession of the State. Accordingly, the trial court, in ordering that the police department produce the statements, properly reviewed the statements in camera, and upon concluding that there was nothing inconsistent between the officers’ IAD hearing testimony and their in-court testimony, properly refused to order disclosure of the statements. To the extent that the jury instruction issue was preserved for appellate review, the trial court instruction was a proper statement.
I agree with Judge Salmon, writing for the intermediate court, that “when a statement is confidential under State law, developed for a non-prosecutorial purpose, and held by a division of a law enforcement agency that is not working in conjunction with the prosecutor, the State cannot be deemed to have access to, or constructive possession of, the statement [and] [h]ence, a defendant is not entitled to production of such statements under the Jenckss-Carr rule.” Robinson v. State, *319117 Md.App. 253, 257, 699 A.2d 570, 572 (1997). Because the prosecution does not have access to these records, the officers’ statements were not within the possession of the prosecutor and thus were not subject to discovery by the defendant.
All parties agree that Brady is not at issue in this-case, and that Petitioner does not contend that the State failed to provide him with exculpatory Brady type material. Instead, the dispute as to the statements focuses solely on the issue of whether the trial judge violated the Jencks-Carr rule.
The Jencks Act, codified at 18 U.S.C. § 3500 (1994), clarified and limited the Supreme Court’s holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Although there is no Maryland counterpart to the Jencks Act, we have consistently looked to the Act, as well as subsequent analysis and interpretation of the Act, for guidance. See Bruce v. State, 318 Md. 706, 724-26, 569 A.2d 1254, 1263-64 (1990); Jones v. State, 310 Md. 569, 583-86, 530 A.2d 743, 750-51 (1987), vacated on other grounds, 486 U.S. 1050, 108 S.Ct. 2815, 100 L.Ed.2d 916 (1988), on remand, 314 Md. 111, 549 A.2d 17 (1988); Butler v. State, 107 Md.App. 345, 357-60, 667 A.2d 999, 1005-06 (1995); Kanaras v. State, 54 Md.App. 568, 575-80, 460 A.2d 61, 66-68 (1983); Whitehead v. State, 54 Md.App. 428, 440-41, 458 A.2d 905, 911-12 (1983).
The Jencks Act sets out the requirements for production of a witness’s prior statements as follows:
After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.
18 U.S.C. § 3500(b). As the Court of Special Appeals pointed out, in order for a defendant to receive a witness’s prior statement under the Jencks Act, the defendant must establish the following:
1. the witness must testify on direct examination;
2. defense counsel must request the statement;
*3203. the statement must qualify as a discoverable statement under the Jencks Act;
4. the statement must relate to the subject matter of the witness’s testimony; and
5. the statement must be in the possession of the prosecution.
Robinson, 117 Md.App. at 267-68, 699 A.2d at 578. The focus of the parties’ argument in this case is the fifth requirement, i.e., whether the statement is in the possession of the prosecution.
The majority holds that the statements in question are in possession of the prosecution. The majority reasons that because the IAD is part of the police, its records are in the possession of the police for the purposes of Jencks-Carr. Maj. op. at 308. The majority continues:
And if the police is an arm of the prosecution, it follows that the records are also constructively in the possession of the prosecution; records in the possession of the police are not rendered not in possession simply because they are made confidential and are not, on that account, shared with, or readily available to, the prosecution.
Id. The trial court and the Court of Special Appeals found otherwise. I agree with those courts.
While county police are ordinarily part of the investigatory arm of the State, this is not true as to all divisions of the police department. Robinson, 117 Md.App. at 273, 699 A.2d at 581. The Court of Special Appeals noted:
The Prince George’s County Police Department cannot be viewed as a monolith—it has divisions that, at least for some purposes, are separate and distinct. Under such circumstances, the State’s Attorney’s Office does not constructively possess all statements held by all divisions of the police department. To know if the State constructively possesses a document, it must be determined whether the division of the police department that holds the document is working in concert with the prosecutor. If so, the State can be deemed to have access to, or constructive possession of, the docu*321ment. Butler v. State, 107 Md.App. 345, 359-60, 667 A.2d 999 (1995); see Trevino, 556 F.2d at 1272; Dansker, 537 F.2d at 61 (statements possessed by the F.B.I. are considered to be in the possession of the prosecutorial arm of the federal government). In contrast, if there is no evidence that the two entities are working in tandem, the State cannot be deemed to have constructive possession of any documents in the other entity’s control. See Bruce v. State, 318 Md. at 726, 569 A.2d 1254; see also United States v. Moeckly, 769 F.2d 453, 463 (8th Cir.1985) (Jencks Act does not apply to statements made to state officials when there is “no joint investigation or cooperation with federal authorities”), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986).
Robinson, 117 Md.App. at 273-74, 699 A.2d at 581. In interpreting whether under Jencks a statement is in possession of the government, courts distinguish between the prosecutorial arms of the government and other government departments. See United States v. Trevino, 556 F.2d 1265, 1271 (5 th Cir.1977) (a statement in possession of the United States means the prosecutorial division of the government); see also United States v. Zavala, 839 F.2d 523, 528 (9 th Cir.1988); United States v. Bourne, 743 F.2d 1026, 1032 (4th Cir.1984); United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir.1980); United States v. Weidman, 572 F.2d 1199, 1207 (7 th Cir.1978); United States v. Dansker, 537 F.2d 40, 61 (3 rd Cir.1976); United States v. Canniff, 521 F.2d 565, 573 (2d Cir.1975).
In this case, the State was not required to produce the statement of the police officer because the statement was not in the possession of the prosecutor’s office, nor was the statement one to which the prosecutor had ready access. The statement was confidential under State law; it was prepared for non-prosecutorial purposes by a division of the police department that was not working in conjunction or in tandem with the prosecutor; and most importantly, the statement was not available to the prosecutor. Accordingly, under the Jencks-Carr rule, the State’s Attorney did not have possession of the document.
*322In State v. Roy, 151 Vt. 17, 557 A.2d 884 (1989), habeas corpus denied, 907 F.2d 385 (2d Cir.1990), the Supreme Court of Vermont addressed the issue of whether statements given by police officers in an internal affairs investigation conducted by the Department of Public Safety were considered statements in possession, custody or control of the prosecution. Roy, charged with assaulting the state trooper who arrested him, sought the trooper’s personnel file. The file was compiled by the office of internal investigation within the Vermont Department of Public Safety. The Department of Public Safety was created by 20 V.S.A. § 1923(b) “to conduct investigations of allegations of misconduct by members of the Department of Public Safety, including the state police.” Id. 557 A.2d at 893. Under the statute, the requested records were confidential. Id. The Vermont Supreme Court concluded that the intent of the statute was that the covered records not be subject to disclosure except for statutory purposes, leading the court to find that the statute created a form of evidentiary privilege. Id. The court held that because of the confidentiality provision of § 1923(b), the requested information was not within the control or possession of the prosecution and thus, was not discoverable. Id. at 893-94. The court further rejected the defendant’s claim that due process required that he have access to the information. The court reasoned that, under the circumstances of that case, to require the prosecutor to disclose the information would put the prosecution in “the untenable position of facing, an obligation to disclose a file that it did not have and was unable to obtain.” Id. at 894. The court concluded that the proper procedure for the defendant to follow to attempt to obtain the records was to cause a subpoena to be issued to the Department of Public Safety. Id. at 895.
I agree with the Roy court that a conclusion that records are privileged or confidential does not end the inquiry. Simply because records may be privileged or confidential does not provide an absolute shield from disclosure. Cases may certainly arise where the defendant’s due process rights will require access to privileged or confidential information. As in *323Roy, the proper procedure for the defendant in the instant case would have been to cause a subpoena to issue to the police department to produce the requested record. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995); Md. Rules 4-264—4-266. The police department and the prosecutor do not have the same interests, and by issuing a subpoena to the police department, the department’s position may be stated directly. See Roy, 557 A.2d at 895.
In Camera Review
The majority rejects an in camera review procedure on the grounds that even though the federal case law states that in camera review is the usual procedure in these cases, our own cases are at odds with the federal cases. Maj. op. at 312. As the majority recognizes, Maryland courts have looked to the Jencks Act and the cases interpreting the Act for guidance in interpreting the development of the Jencks-Carr rule and its ramifications. The federal cases hold that the proper procedure is usually in camera review. See, e.g., United States v. Boyd, 53 F.3d 631, 634 (4th Cir.1995); United States v. Lopez, 6 F.3d 1281, 1288-89 (7th Cir.1993); United States v. Marshall, 985 F.2d 901, 907-08 (7 th Cir.1993); see also 18 U.S.C. § 3500(c) (contemplating in camera review when the government claims that discovery does not relate to the witness’s direct testimony). An in-camera review is consistent with the procedure endorsed by this Court in Zaal v. State, 326 Md. 54, 87, 602 A.2d 1247, 1263-64 (1992). In Zaal, this Court stated:
In cases in which access to confidential and/or sensitive records is sought by a defendant and which will be resolved based on credibility considerations, because of which, the trial court determines the ‘need to inspect’ threshold has been crossed, the court may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records’ confidentiality. Which option the court chooses must depend on various factors, including the degree of sensitivity of the material to be inspected; the strength of *324the showing of the ‘need to inspect’; whether the information sought is readily identifiable; considerations of judicial economy, etc. The greater the ‘need to inspect’ showing, ie., as here, where it is self-evident, and the less sensitive the information, for example, the more likely the records will be reviewed jointly by the court and counsel or by counsel as officers of the court.
Id., 602 A.2d at 1263-64 (emphasis added).
In this case, the trial court reviewed the statements in camera and determined that there was nothing contradictory in them. The court did not err in conducting the in camera review, nor did the court abuse its discretion in refusing to order defense access to the statements.
Harmless Error
Assuming error arguendo, the failure to provide Jencks material is subject to a harmless error analysis. See Goldberg v. United States, 425 U.S. 94, 117 n. 21, 96 S.Ct. 1338, 1348 n. 21, 47 L.Ed.2d 603 (1976); United States v. Gonzalez, 110 F.3d 936, 943 (2d Cir.1997); Lopez, 6 F.3d at 1289; United States v. Susskind, 4 F.3d 1400, 1406 (6th Cir.1993); United States v. Brumel-Alvarez, 991 F.2d 1452, 1457, 1464 (9 th Cir.1992); United States v. Lam Kwong-Wah, 924 F.2d 298, 310-11 (D.C.Cir.1991); Moeckly, 769 F.2d at 463; United States v. Bruton, 647 F.2d 818, 827-28 (8th Cir.1981); United States v. Gaston, 608 F.2d 607, 611-12 (5th Cir.1979); see also Kanaras, 54 Md.App. at 574, 460 A.2d at 65; see generally Moore’s Federal Practice § 626.2.07 (3d ed.1997). Instead of reversing and remanding for a new trial, this Court, finding error, should apply a harmless error analysis.
The majority reverses the judgment of conviction and remands this case for a new trial. Maj. op. at 317. The majority relies on Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990), order affirmed, 531 Pa. 42, 611 A.2d 175 (1992), a Pennsylvania intermediate appellate court decision, as support for its decision. Maj. ,op. at 305-06. The majority stops short in its discussion of the case, simply noting that “the intermediate appellate court held that the state*325ments the officers made to IAD should have been disclosed.” Id. In French, however, the Pennsylvania court did not reverse the conviction and remand for a new trial; instead, the court held that the error in the case is properly subject to a harmlessness analysis. French, 578 A.2d at 1301. The court concluded that the interests of justice and relevant Pennsylvania case law required the court to allow defense counsel an opportunity to argue the merits of the issue to the trial judge who presided over the case; the trial judge then could determine the value of the prior statements to the defense after the benefit of hearing defense argument after inspection of the statements. Id. 578 A.2d at 1301-02. Accordingly, the court remanded the case “to the trial court for an evidentiary hearing on whether the court’s failure to allow defense access to the Commonwealth witnesses’ statements constituted harmless error.” Id. at 1302. Given the majority’s determination of error in the instant case, this Court should do no less.' Assuming error, if this Court declines to review the statement for harmless error, the Court should at least remand this case to the trial court for a harmlessness analysis.
Judge CHASANOW and Judge SMITH have authorized me to state that they join in the views expressed herein.
. On the preservation issue, I would hold that the issue as to Officer Smith's statement under Jencks-Carr was not preserved for appellate review. Counsel did not request production of the statement following the officer’s direct testimony and he obviously had no desire to use the statement for cross-examination purposes of that witness.