UPON A REHEARING EN BANC
HUMPHREYS, Judge.A jury convicted William Edward Turna (“Turna”) in the Circuit Court of Dinwiddie County (“trial court”) of taking indecent liberties with a child, aggravated sexual battery, and animate object sexual penetration. On appeal, Turna contends that the trial court erred by 1) ruling “on several occasions, during the jury trial and prior to sentencing, that the evidence discovered by [Turna] during the jury trial, an audio tape, was *278not exculpatory in nature, and therefore need not have been disclosed by the Commonwealth prior to trial, pursuant to Brady v. Maryland,” 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and 2) “refusing to allow the jury to hear the audio tape and admit it into evidence.” A panel majority of this Court reversed Tuma’s convictions. We granted the Commonwealth’s petition for rehearing en banc and stayed the mandate of the panel decision.
I. Background
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the facts establish the following.
In early February 2008, L.S., a five-year-old girl, told her stepmother and biological father that Tuma, her stepfather, had touched her inappropriately. A joint investigation by police investigators and the Dinwiddie County Department of Social Services (Dinwiddie DSS) ensued which led to Tuma’s indictment on the three charges for which he was later convicted by a jury. Prior to trial, Tuma’s counsel filed a motion for discovery which included a request for “[a]ny other information or evidence known to the Commonwealth which is or may be exculpatory.”
At trial on January 12, 2009, L.S. testified that Tuma assaulted her when she lived in the “house next to horses.” She specifically stated that Tuma touched her in her “bottom privates” and that it usually happened in Tuma’s room after they watched movies that they should not have been watching because they included “[pjeople touching each other on their privates.” L.S. testified that Debra Tuma, her mother, was also in the room when the movies were on, but that she would leave the room once the movies were finished. L.S. then stated that once Debra Tuma left the room, Tuma would tell her to take her clothes off and lie on the bed. L.S. stated that he would touch her only in her “down” private parts, that he *279would put his fingers on and inside of her more than once, and that she could feel his fingers inside of her. L.S. could not recall how many times Tuma touched her when she lived in the house near the horses, but testified that it was “a lot.” L.S. also testified that the sexual assaults sometimes took place in her bedroom. L.S. further testified that Tuma told her to touch her brother, who was three or four years old, when he was in the bathtub in “his down privates” while Tuma watched. At some point while the abuse was ongoing, Tuma, Debra, and L.S. moved from the house with the horses into an RV park. Prior to Christmas of 2007, L.S. went to live with her biological father and stepmother, but Debra Tuma still had visitation with L.S. The last time Tuma touched L.S. was around Christmas of 2007 in Tuma’s bedroom when she was visiting her mother at the trailer.
On cross-examination, L.S. testified that she lived with her grandmother at one point and that Tuma also touched her there, but she could not remember the number of times it occurred. L.S. also replied on cross-examination that Tuma touched her more than ten times in the house with horses. L.S. further stated that Tuma touched her about three times a week at the “RV park.”
When she lived with her biological father, L.S. inappropriately touched her male nephew. It was after the incident with her nephew that L.S. told her stepmother and biological father what Tuma had been doing to her and what he made her do to her brother.
Ms. Jon Scheid of Dinwiddie DSS and Sheriffs Department Investigator Dwayne Gilliam interviewed L.S. regarding L.S.’s allegations against Tuma. Investigator Gilliam testified at trial that L.S. reported during the interview that Tuma had “been touching her inappropriately for a period of time” and that the abuse occurred at two locations, one of which was Green Acres Trailer Park. An investigation was initiated based on this report, and the alleged assaults were determined to have occurred in Dinwiddie at 9617 Boydton Plank Road (L.S. refers to this location in her statement and testimony as “the *280house with the horses”), and 7901 Lot 36 Boydton Plank Road at Green Acres Trailer Park. Tuma was then arrested and charged with animate object penetration, aggravated sexual battery, and indecent liberties with a minor. On cross-examination, Investigator Gilliam testified that he believed the interview with L.S., Ms. Scheid, and himself may have been recorded on an audio tape, but he did not know if a transcript was ever made from the tape.
Ms. Scheid testified at trial that she had recorded the interview with L.S. and Investigator Gilliam and she had the audio tape in her possession; she stated that the recording was about thirty to forty minutes in length.1 Ms. Scheid further testified that L.S. stated in the interview that the sexual abuse occurred at two locations, with the majority of incidents occurring at the house with the horses and one incident occurring at a residence in Green Acres Trailer Park. Ms. Scheid also stated that the tape included L.S.’s reference to the one incident at the trailer park. Upon discovering that Ms. Scheid had the tape in her possession, Tuma’s counsel asked the trial court to play the audio tape. The Commonwealth objected, and the following colloquy took place:
THE COURT: Have you heard it?
[TUMA’S COUNSEL]: No, sir.
THE COURT: I am not going to play it. You can go listen to it if you want on your own time. We are not going to just—I don’t know what is there. We don’t know what is in there. We will not just play a tape. You have already asked her about what was said.
[TUMA’S COUNSEL]: Well, the argument is that it is the best evidence in the case in terms of what the child said on that audio tape.
*281THE COURT: I don’t think it is the best evidence in the case. It might be some evidence. You can take it off and listen to it. Has this been denied to [Tuma’s counsel], this tape?
[COMMONWEALTH’S ATTORNEY]: No, sir.
THE COURT: He had access to it?
[COMMONWEALTH’S ATTORNEY]: He can listen to it if he wants to.
THE COURT: We’ll not play it now because you want to play it. It is not admissible unless it contradicts something that she has said. You haven’t heard it. So we’ll not just play a tape and run this thing sort of offbeat, off horse back without any sort of thought or notion as to what is there. It is not going to be played....
After reporting the sexual assaults, L.S. began seeing Amy Holloman, a counselor. Ms. Holloman testified at trial, and was qualified as an expert on adolescent trauma. She testified that it is uncommon for a child victim of this type of trauma to report the abuse right after it occurs. She also opined that it was uncommon for children to be able to remember specific dates and instances because “[t]hey try to repress as much as possible.” However, she stated that it is very common in therapeutic situations for more information to come out once the child has established a trusting relationship with the counselor, which is what occurred with her and L.S. Ms. Holloman then testified that she personally observed the following behavior in L.S.: “pacing in my office, avoiding eye contact, avoiding the subject matter, leaving my office.” According to Ms. Holloman, these specific behaviors coupled with the actual reporting of the incident are consistent with claims of sex abuse.
At the conclusion of the Commonwealth’s case, Tuma’s counsel moved to strike the evidence on the basis that the audio tape is the best evidence and that it is exculpatory. The following exchange then took place:
THE COURT: Have you listened to the tape?
[COMMONWEALTH’S ATTORNEY]: No, sir.
*282THE COURT: So you don’t know whether it is exculpatory or not?
[COMMONWEALTH’S ATTORNEY]: No, sir.
THE COURT: So therefore you didn’t give it to him as being exculpatory because you never listened to it? You don’t think it is—he is entitled to it because it is not exculpatory? You just don’t know?
[COMMONWEALTH’S ATTORNEY]: I relied on my investigator who had given me his notes and transformed that into a typewritten statement that codified what went on at that particular interview.
THE COURT: So you are satisfied there is nothing significant or exculpatory? Are you willing to stand on that? If it is you will not have complied with Brady.
[COMMONWEALTH’S ATTORNEY]: Yes, sir.
THE COURT: You are willing to let that go?
[COMMONWEALTH’S ATTORNEY]: Yes, sir.
THE COURT: You don’t know what is on there either?
[COMMONWEALTH’S ATTORNEY]: Yes, sir.
THE COURT: We have heard from two witnesses as to what was done, Mrs. Scheid and Mr. Gilliam both of them were cross examined. This is just a tape of what they heard, correct?
You are saying that you think it is exculpatory?
[TUMA’S COUNSEL]: Yes, sir.
THE COURT: In some way?
[TUMA’S COUNSEL]: Yes, I mean I can’t get the material. I have asked the representatives.
THE COURT: Well, I don’t think you are entitled just to play something because you think it may be exculpatory or there may be something in there as slightly inconsistent three or four times they don’t remember you had ham and eggs for breakfast one morning and another time you say sausage and eggs. I just don’t think it is admissible, [Tuma’s counsel]. The Court is not going to admit it. If at some point if your client is convicted that *283tape shows something that is significant, exculpatory, he gets a new trial. So that is the way we are going with it. We will just not play a tape I don’t know if it is 15 minutes or two hours about a conversation we have heard two people testify to.
[TUMA’S COUNSEL]: Actually we have heard from three people about that conversation. We have heard from the victim herself, the conversation. We have heard from Mrs. Scheid, and we have heard from the investigator.
On January 12, 2009, the jury returned a verdict of guilty on all three charges. On February 19, 2009, after the jury verdict but prior to entry of the conviction or sentencing orders, Tuma’s counsel filed a subpoena duces tecum to obtain the audio tape from Dinwiddie DSS. On February 27, 2009, Tuma’s counsel filed a motion to compel the Commonwealth to deliver a copy of the audio tape to him. The Commonwealth’s Attorney did not respond to Tuma’s motion, but on or around March 7, 2009, Dinwiddie DSS filed a response to Tuma’s motion to compel and subpoena duces tecum and stated that neither the Commonwealth’s Attorney nor Tuma’s counsel were entitled to the tape, because it was produced as a result of a social services investigation. On March 9, 2009, the trial court entered the conviction order confirming the jury’s verdict. The proof of service for the subpoena duces tecum on Ms. Scheid of Dinwiddie DSS was returned on March 11, 2009, marked “too late for service.” On April 17, 2009, Tuma’s counsel filed a motion to preserve the tape recording with the trial court. The motion noted a hearing scheduled for April 30, 2009 on Tuma’s motion to compel. At the hearing on April 30, 2009, the trial court ordered the attorney for Dinwiddie DSS to listen to the tape, remove any extraneous confidential information, and give the remainder to Tuma’s counsel.
The transcript of the audio tape reflects that L.S. told Investigator Gilliam that the abuse occurred at the white house with the horses. L.S. initially did not remember how many times Tuma touched her, but Investigator Gilliam, upon more questioning, narrowed it down to “between five and ten times” while at the white house. Investigator Gilliam asked: *284“When he touched you um it would always be at the white house?” L.S. replied: “Yes.” When asked if the abuse happened at any other house, L.S. replied that it did not. Ms. Scheid then asked more specifically if Tuma ever touched L.S. at Green Acres in the trailer or at Grandma’s house. L.S. again replied “No” to both questions. When Ms. Scheid asked, “So everything you are telling me everything happened at the white house?” L.S. replied, “Yes.” In fact, L.S. indicated five times throughout the interview that the touching occurred at the white house. When asked, ‘What part of the house would this happen in? Do you remember?” L.S. replied, “um yes in his room.” L.S. never mentioned abuse occurring in her bedroom during the interview.
As part of his report, Investigator Gilliam summarized the interview of L.S. This summary was all that was provided to Tuma’s counsel pursuant to his discovery requests, and Tuma’s counsel used it to cross-examine Investigator Gilliam at trial. The summary stated, in part, “[L.S.] was asked when Billy touched her, she replied during visitation with her mother Debra.” This question and answer is not found in the transcript of L.S.’s taped interview. The summary also reads: “[L.S.] was asked when was the last time Billy touched her, she replied at Nikki’s house in December 07, Christmas holiday visitation.” This statement also is not found in the interview transcript. The summary fails to convey L.S.’s difficulty remembering how many times Tuma touched her in the white house: in the interview transcript L.S. stated “I don’t remember,” before Investigator Gilliam, through questioning, helped her narrow it down to “between five and ten times.” Most notably, the summary does not include L.S.’s three separate negative responses to the questions of (1) whether the touching occurred at any house other than the white house, (2) “[d]id anything ever happen at Grandma’s house?”, and (3) “has he ever touched you at Green Acres in the trailer?”
After listening to the tape, Tuma filed a motion to set aside the jury verdict based on exculpatory evidence discovered post-trial and a motion to strike the evidence as not sufficient *285to convict. On January 4, 2010, the trial court held a hearing on the motions, subsequently reviewed the trial transcripts, the audio tape of the interview, and the transcript of the audio taped interview. On January 29, 2010, the trial court entered an order denying the motions and entered the Commonwealth’s drafted findings of fact and conclusions of law. On April 16, 2010, Turna filed an objection to the trial court’s finding of fact, conclusions of law, and January 29, 2010 order. On April 22, 2010, the trial court entered the sentencing order, which imposed the sentencing verdict of the jury, a sentence of thirty-five years. This appeal followed.
II. Analysis
A. The Failure to Disclose Exculpatory Evidence
1. The Special Responsibilities of a Prosecutor
The role of public prosecutor, an attorney who represents the interests of the sovereign in criminal cases, has evolved in parallel with that of the Common Law of England and traces its pedigree back more than 750 years. Lawrence del Brok in 1243 is considered the first professional attorney to prosecute pleas on behalf of the Crown. J. LI. J. Edwards, The Law Officers of the Crown 15 (Sweet & Maxwell) (1964).
In America, the earliest example of a public prosecutor is in the colony of Connecticut in 1704.
[Hjenceforth there shall be in every countie a sober, discreet and religious person appointed by the Countie Courts, to be Attorney for the Queen, to prosecute and implead in the lawe all criminall offenders, and to doe all other things necessary or convenient as an attorney to suppresse vice and imorallitie.
Charles J. Hoadly, The Public Records Of The Colony Of Connecticut: From August, 1689, To May, 1706 468 (Press of Case, Lockwood and Brainard) (1868); see also Jack M. Kress, Progress and Prosecution, in Annals of the American Academy of Political and Social Sciences 123 99, 103 (1976) (“In May of 1704, the Connecticut Assembly passed the law which *286is generally recognized as creating the first permanent office of public prosecutor on a colony-wide basis.... ”).
Early American case law also reflects the necessity that those who represent the government and its citizens be fair and honorable.
He is to judge between the people and the government; he is to be the safeguard of the one and the advocate for the rights of the other; he ought not to suffer the innocent to be oppressed or vexatiously harassed, any more than those who deserve prosecution to escape; he is to pursue guilt; he is to protect innocence; he is to judge the circumstances, and according to their true complexion, to combine the public welfare and the safety of the citizens, preserving both, and not impairing either. He is to decline the use of individual passions, and individual malevolence, when he cannot use them for the advantage of the public; he is to lay hold of them where public justice, in sound discretion, requires it.
Foute v. State, 4 Tenn. 98, 99 (1816).
The [prosecutor] is a quasi-judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the [prosecutor] to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impartially. He should present the commonwealth’s case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate.
Appeal of Nicely, 130 Pa. 261, 18 A. 737, 738 (1889).
The higher standard of professionalism and duty applicable to those who represent the interests of the public and their government was succinctly restated in 1935 by Justice Sutherland, and his words are often quoted:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that *287justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
Our Anglo-American system of justice presumes innocence in criminal cases and places a high burden on the attorney for the Commonwealth to overcome that presumption. However, other attorneys have no such obligation nor should they.
Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we must also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.
*288United States v. Wade, 388 U.S. 218, 256-58, 87 S.Ct. 1926, 1947-48, 18 L.Ed.2d 1149 (1967) (White, J., concurring and dissenting).
The asymmetry of the criminal justice system certainly places onerous demands on prosecutors. Defense attorneys may pursue acquittals notwithstanding all evidence to the contrary. While this provides fertile ground for many lawyer jokes, such zealous advocacy, despite any apparent hopelessness of the effort, is an essential ingredient to a fair trial and buttresses the foundation of our system of justice. Prosecutors may be understandably frustrated by the notion of unequal combat and with trials structured as zero-sum competitions featuring a clear winner and loser, they may be tempted to resist allowing their opponent any tactical advantage. However, the higher obligation to fairness and justice required of prosecutors is as integral to the effective operation of our system of justice as the duty of zealous representation of the defendant is for their courtroom opponents. Prosecutors must never forget that they are public servants whose oath requires them to serve their clients though a commitment to the fair, impartial, and objective administration of justice rather than the single-minded pursuit of victory, and they ignore that difference at their peril.
2. The Prosecutor’s Duty with Respect to Exculpatory Evidence
Tuma argues that the audio tape made by Dinwiddie DSS of L.S.’s interview where she complained of sexual abuse “contained exculpatory evidence and should have been disclosed to defense counsel prior to trial.” He contends that had the Commonwealth provided the tape to him, he could have used it to impeach the credibility of L.S., Ms. Scheid, Investigator Gilliam, and the counselor, Amy Holloman, and “the investigation against the defendant as a whole at trial.”2
*289The prosecution’s affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th century strictures against the use of perjured testimony and is most prominently associated with the decision by the Supreme Court of the United States in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady held “that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97; see also Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2575, 33 L.Ed.2d 706 (1972).
However, “[w]hen an exculpatory evidence claim is reviewed ‘on appeal, the burden is on [the] appellant to show that the trial court erred.’ ” Gagelonia v. Commonwealth, 52 Va.App. 99, 112, 661 S.E.2d 502, 509 (2008) (quoting Galbraith v. Commonwealth, 18 Va.App. 734, 739, 446 S.E.2d 633, 637 (1994)). A “ ‘constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.’ ” Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985)). “In determining the question of materiality, we consider the suppressed evidence as a whole, not item by item and if a Brady violation is established, we do not engage in a harmless error review.” Id.3
*290The suppression by the prosecution of evidence favorable to the defendant “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. “There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been *291suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). “[Ejvidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-70, 129 S.Ct. 1769, 1783, 173 L.Ed.2d 701 (2009). “A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine confidence in the outcome of the trial.’ ” Smith v. Cain, — U.S. -, -, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)).
While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation, ... the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
Kyles, 514 U.S at 437-38, 115 S.Ct. at 1567-68.
Indeed, as Justice Souter went on to observe in Kyles, “ ‘The prudent prosecutor will resolve doubtful questions in favor of disclosure.’ ” Id. at 439, 115 S.Ct. at 1568 (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399-*2922400, 49 L.Ed.2d 342 (1976)). “This is as it should be. Such disclosure will serve to justify trust in the prosecutor as ‘the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ ” Id. (quoting Berger, 295 U.S. at 88, 55 S.Ct. at 633).
Nevertheless, for evidence to be exculpatory, it must necessarily be material with respect to innocence or the degree of guilt with regard to lesser offenses, the degree of punishment that would be appropriate, or the impeachment of the credibility of a witness with regard to material facts. In Smith, the United States Supreme Court recently held that the undisclosed statements of an eyewitness were “plainly material” where the eyewitness’ testimony was the only evidence linking the defendant to the crime. — U.S. at -, 132 S.Ct. at 630. At trial, the eyewitness identified Smith as the “first gunman to come through the door” and stated that he had been “face to face with Smith” during the robbery. Id. “No other witnesses and no physical evidence implicated Smith in the crime.” Id. at -, 132 S.Ct. at 629. After his conviction, Smith found previously undisclosed notes of the lead investigator of the murder. Id. The investigator wrote on the night of the murder that the eyewitness could not supply a description of the perpetrators. Id. In notes taken five days after the crime, the investigator recorded that the eyewitness said he could not see faces and would not know the perpetrators if he saw them. Id. at -, 132 S.Ct. at 629-30. The investigator’s typewritten report of his conversation with the eyewitness five days after the crime states that the eyewitness “ ‘could not identify any of the perpetrators of the murder.’ ” Id. at -, 132 S.Ct. at 630. The Court observed that “evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict.” Id. However, such was not the case where the eyewitness’ testimony was the only evidence linking the defendant to the crime, and his undisclosed statements directly contradicted his trial testimony. Id. While “the jury could *293have disbelieved [the eyewitness’] undisclosed statements,” the Court had “no confidence that it would have done so.” Id.
Smith controls our analysis here. Just as in Smith, L.S.’s testimony is the only evidence linking Tuma to the crimes in this case, and there is no physical evidence implicating Tuma. As the Commonwealth’s entire case depended on L.S.’s account of Tuma’s sexual abuse of her, L.S.’s undisclosed interview responses, where they materially varied from her trial testimony, constituted impeachment evidence material to Tuma’s guilt or punishment.4
On cross-examination at trial, L.S. testified that Tuma touched her at her grandmother’s house and about three times a week at the RV park. However, during the interview, L.S. replied that Tuma did not touch her at her grandmother’s house and he did not touch her at the trailer park.5 Investigator Gilliam asked during the interview, “When he touched you um [sic] it would always be at the white house?” L.S. replied, “Yes.” Ms. Scheid asked, “So everything you are telling me everything happened at the white house?” L.S. replied, “Yes.” L.S. affirmed five times during the interview that the touching occurred at the white house, which is the “house near the horses.”
Further, at trial L.S. testified that the sexual assaults sometimes took place in her bedroom, but during the interview L.S. only stated that the assaults occurred in Tuma’s room.
As for the number of times Tuma assaulted L.S., on direct examination at trial, L.S. could not recall how many times Tuma touched her when she lived in the house near the *294horses, but testified that it was “a lot.” On cross-examination, L.S. stated that Turna touched her more than ten times at the house next to the horses. During the interview, L.S. could not remember how many times Turna touched her at the house next to the horses; but after questioning, Investigator Gilliam narrowed her response to “between five and ten times.”
The evidence contained in the undisclosed audio tape could have been used by Turna for impeachment purposes to challenge the credibility of L.S., his accuser, and the only eyewitness against him. “When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ evidence affecting the credibility of that witness should not be concealed by the prosecution.” Burrows v. Commonwealth, 17 Va.App. 469, 472, 438 S.E.2d 300, 303 (1993) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). In order to convict Turna, the jury in this case had to believe L.S.’s testimony. Thus, Tuma’s guilt or innocence depended entirely on L.S.’s reliability as a witness and any evidence affecting her credibility should have been revealed by the Commonwealth. However, it is important to note that the prosecutor’s duty to disclose exculpatory evidence under Brady is not congruent with any obligation to disclose information under the rules and statutes regarding discovery, and the constitutional duty is triggered only when the information in the prosecutor’s control becomes exculpatory. Thus, had L.S. testified consistently in the interview with Investigator Gilliam and Ms. Scheid, any pre-trial interviews with the prosecutor, and at trial, the audio tape would not have been exculpatory evidence, and there would have been no constitutional obligation on the part of the prosecutor to disclose it. See Taylor v. Commonwealth, 41 Va.App. 429, 436, 585 S.E.2d 839, 843 (2003) (the Commonwealth is not required to provide a defendant with investigative notes of witness statements unless the notes contain witness statements that are inconsistent or contradictory to that witness’ or another witness’ material testimony and could have been used to impeach the declarant or another witness). However, once L.S.’s interview statements proved inconsistent with her later account of the sexual *295assaults, whether when interviewed by the prosecutor before trial6 or, at the latest, at trial immediately following her inconsistent direct testimony, the audio tape of the interview became evidence material to Tuma’s guilt and/or punishment and should have been immediately disclosed when the discrepancy became known or should have become known to the prosecutor.7 For the same reason, the audio tape also became exculpatory when Investigator Gilliam and Ms. Scheid testified to statements made by L.S. to them that were materially different from those reflected in the audio tape of their interview.8
*296We note that the record in this case reflects that the Commonwealth’s Attorney never listened to the audio tape of L.S.’s statements to Investigator Gilliam and Ms. Scheid to determine whether it conflicted in any material way with her pre-trial interviews with L.S., Ms. Scheid, or Investigator Gilliam, or their trial testimony. Moreover, when asked by the trial court, “Has this been denied to [Tuma’s counsel], this tape?”, the Commonwealth’s Attorney responded, “No.” In fact and despite this response and her later statement to the trial court that counsel for Tuma “could listen to it if he wants to,” the prosecutor nevertheless failed to produce the tape or assist Tuma in obtaining it from Dinwiddie DSS when they refused to produce it upon Tuma’s subsequent request. We also note that Dinwiddie DSS took the position that it would not disclose the contents of the audio tape to either the prosecutor or counsel for Tuma.
The law provides no support for the position taken by Dinwiddie DSS. To the contrary, the law is clear that the prosecutor is charged with the clear and affirmative duty of disclosing all exculpatory evidence in the possession, custody, or control of the Commonwealth and its agents. Any claim of Dinwiddie DSS that the audio tape was privileged information *297to DSS is easily dispensed with in light of this Court’s well-settled precedent establishing otherwise. In Ramirez v. Commonwealth, 20 Va.App. 292, 296, 456 S.E.2d 531, 533 (1995), this Court held that employees of a local department of social services who were “involved in the investigation of the child abuse allegation were agents of the Commonwealth for purposes of Rule 3A:ll(b)(2).” Specifically, this Court stated that, “where an agency is involved in the investigation or prosecution of a particular criminal case, agency employees become agents of the Commonwealth for purposes of Rule 3A:11 and must be considered a party to the action for purposes of Rule 3A:12.” Id. at 296-97, 456 S.E.2d at 533. “ ‘The Commonwealth is charged with the responsibility to interview all government personnel involved in a case in order to comply with its discovery obligations.’ ” Knight v. Commonwealth, 18 Va.App. 207, 214, 443 S.E.2d 165, 169 (1994) (quoting Harrison v. Commonwealth, 12 Va.App. 581, 585, 405 S.E.2d 854, 857 (1991)). It is axiomatic that if personnel of a department of social services are agents of the Commonwealth for the purposes of discovery under Rule 3A:11, they are certainly such for the purpose of providing constitutional due process for a criminal defendant. By participating in a criminal investigation, Dinwiddie DSS was “acting on the government’s behalf,” Kyles, 514 U.S. at 437, 115 S.Ct. at 1567, and became an agent of the prosecutor for the purpose of Brady and its progeny, and it certainly had no authority to withhold evidence from either the prosecutor or Tuma that due process principles required be disclosed. Moreover, the Code of Virginia specifies that when a department of social services participates in a criminal investigation, it is the law enforcement agency and the prosecutor who determine what information to release to third parties and not the department.9 The prose*298cutor in this case had a clear, unequivocal, and ongoing constitutional duty to learn of any favorable evidence known to Dinwiddie DSS, an agent acting on behalf of the Commonwealth, and to take active steps to disclose any that existed to Tuma. Therefore, beyond her initial duty to inquire about potentially exculpatory evidence in the possession of Dinwiddie DSS, once the prosecutor became aware of the existence of the tape, she had an affirmative responsibility to ensure that if its contents were or later became exculpatory, she disclose and produce it to the defense with sufficient timeliness that it could be used for possible impeachment.
The Commonwealth argues on brief that “even if’ any of L.S.’s post-interview statements contradicted her interview responses, any impeachment value would be minimal considering Ms. Holloman’s expert testimony that children attempt to repress events of abuse. However, the “jury determines the weight of the evidence and the credibility of the witnesses,” Bloom v. Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84, 87 (2001), and resolution of factual questions is “wholly within the province of the jury,” Keener v. Commonwealth, 8 Va.App. 208, 214, 380 S.E.2d 21, 25 (1989). The jury is not required to accept the testimony of an expert witness; rather the “ ‘jury has a right to weigh the testimony of all the witnesses, experts and otherwise.’ ” Walrod v. Matthews, 210 Va. 382, 390, 171 S.E.2d 180, 186 (1969) (quoting Pepsi-Cola Bottling Co. of Norfolk v. McCullers, 189 Va. 89, 99, 52 S.E.2d 257, 261 (1949)).
The Commonwealth asserts that in the context of the entire record, any impeachment value the audio tape would have provided does not undermine confidence in the jury’s determination of Tuma’s guilt. The Commonwealth’s argument is essentially that, if the audio tape had been disclosed in a *299timely fashion, the jury could nevertheless have found L.S. credible and convicted Tuma, but given that the Commonwealth’s case rested entirely on her testimony and applying the Supreme Court’s holding in Smith, we have no confidence that it necessarily would have done so. Moreover, even if we agreed with the Commonwealth, our analysis regarding a Brady violation would not end there. A Brady violation occurs when the prosecution suppresses evidence favorable to the defendant that is material either to guilt or to punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. In Cone, the United States Supreme Court found that the trial court should have considered the materiality of the evidence with respect to punishment in determining whether the suppressed evidence was material within the meaning of Brady. Cone, 556 U.S. at 472, 129 S.Ct. at 1784. The Court concluded that because “the evidence suppressed at Cone’s trial may well have been material to the jury’s assessment of the proper punishment in [the] case, ... a full review of the suppressed evidence and its effect is warranted.” Id. at 475, 129 S.Ct. at 1786.
In criminal cases in Virginia, “the power to determine punishment of one convicted of a criminal offense rests in the jury----The jury’s role has long been construed to be more than advisory, resulting in more than just a recommendation of punishment.” Frye v. Commonwealth, 231 Va. 370, 397, 345 S.E.2d 267, 286 (1986). See Code § 19.2-295 (In a case tried by a jury, the jury shall ascertain the term of confinement and the amount of fine, if any, of a person convicted of a criminal offense).
That the impeachment evidence in the tape could have affected the credibility of L.S. in the eyes of the jury goes not only to the confidence in the outcome of the trial concerning Tuma’s guilt or innocence, but also to the confidence in the sentence fixed by the jury. Had the jury known of L.S.’s recorded interview statements, that the abuse occurred only at the white house between five and ten times and not at the trailer or her grandmother’s house, the jury very well could have doubted the number of times Tuma sexually abused L.S., considering that her interview statements contradicted her *300trial testimony. It is reasonable to conclude that the evidence of repeated occurrences of the sexual abuse at three separate locations impacted the jury’s assessment of a proper punishment for Tuma. The evidence in the interview would have been favorable to Tuma as it could have been used to impeach the credibility of L.S.’s testimony on the number of times and different locations where Tuma sexually abused her. Therefore, the evidence was also material to Tuma’s degree of punishment, and suppression of the recorded interview constituted a separate Brady violation on that basis.
We now turn to the ongoing nature of the prosecutor’s burden to comply with the requirements of Brady in the context of the record before us. “[T]he reviewing court may consider directly any adverse effect that the prosecutor’s failure to respond [to a Brady request] might have had on the preparation or presentation of the defendant’s case.” Bagley, 473 U.S. at 683, 105 S.Ct. at 3384. The Supreme Court noted in Kyles that,
While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. 1194 [at 1196-97]), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
*301Kyles, 514 U.S. at 437-38, 115 S.Ct. at 1567-68 (emphasis added). We further note the United States Supreme Court’s decision in Agurs, which made clear the prosecutor’s duty to volunteer material exculpatory evidence to the defense even absent a specific request for such evidence by the defense. Agurs, 427 U.S. at 110, 96 S.Ct. at 2400-01.
While Tuma’s counsel could have asked for a recess to listen to the audio tape of L.S.’s interview once he became aware of it during the trial, his failure to do so did not excuse or dispense with the prosecutor’s affirmative duty to discover any favorable evidence known to others acting on the Commonwealth’s behalf and to turn it over to Turna.10 The *302Commonwealth’s Attorney should have reviewed the audio tape of L.S.’s interview in order to satisfy her duty to learn of any favorable evidence known to Dinwiddie DSS or the police investigating the case. The prosecutor’s negligible efforts to comply with her responsibilities fell far short of what her oath of office and the law required of her. She did not listen to the tape yet represented to the trial court that it was not exculpatory, she relied on the investigator’s inaccurate and incomplete notes of the interview without exercising any independent judgment in the matter, and she offered no assistance at any point in obtaining the tape for examination by Tuma’s counsel. *303The record before us does not indicate when the prosecutor became aware of the existence of the audio tape, but it does reflect that after becoming aware of it, she simply turned a blind eye to an accessible audio recording of an investigatory interview of the only victim and eyewitness in the case on whose testimony the conviction rested. Never having listened to it, the prosecutor could not have known if the evidence in the audio tape was exculpatory, yet she nevertheless represented to the trial court that it was not.
Further, despite the prosecutor’s representation to the trial court that counsel for Tuma “can listen to it if he wants to,” with the benefit of the hindsight provided by the record in this case, the futility of any request Tuma might have made at trial for a recess to listen to the audio tape is obvious. The prosecutor never produced the tape, either during the trial or during Tuma’s post-trial efforts to obtain access to the tape even as Dinwiddie DSS resisted Tuma’s repeated requests to turn the tape over.
We hold that on this record, the failure of the prosecution to turn over L.S.’s interview statements to Tuma prior to cross-examination of L.S. at trial violated his due process right to a fair trial and undermines confidence in the outcome of the trial, regarding both the jury’s determination of Tuma’s guilt and their decision with respect to Tuma’s sentence. On this basis, we find that the trial court erred in not granting Tuma’s motion for a new trial based upon after-discovered exculpatory evidence and we reverse Tuma’s convictions and remand for a new trial if the Commonwealth so elects.
B. Admissibility of the Audio Tape
In Tuma’s remaining assignment of error, he argues that the trial court erred in refusing to allow the jury to hear the audio tape and admit it into evidence, as it was clearly relevant to the case. Our resolution of the first assignment of error is dispositive of our ultimate holding reversing Tuma’s convictions, thus we need not address the admissibility of the audio tape. See Powell v. Commonwealth, 261 Va. 512, 531-32, 552 S.E.2d 344, 355 (2001) (the Court does not need to *304address all assignments of error where the Court’s opinion on other issues raised are dispositive of the ultimate holding reversing the appellant’s convictions). Further, the issue raised in Tuma’s second assignment of error will not arise at a new trial. See e.g. 1924 Leonard Rd., L.L.C. v. Van Roekel, 272 Va. 543, 559, 636 S.E.2d 378, 388 (2006) (the Court declined to address issues that would not affect its judgment and would not arise at a new trial); cf. Powell, 261 Va. at 535, 552 S.E.2d at 357 (where the Court reversed a capital murder conviction, it found that it must consider other issues that maybe relevant to a trial on remand for the murder offense). The trial court did not admit the audio tape into evidence because Turna had not listened to the tape and did not know what was on the tape at the time he asked the trial court to admit it into evidence and to play it for the jury. Should the Commonwealth elect to retry the case, the same issue regarding the admissibility of the audio tape would not arise because Tuma’s counsel now has access to the tape. The question of admissibility of the tape into evidence would then be within the discretion of the trial court and governed by the applicable rules of evidence. Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). Therefore, we need not address this assignment of error.
III. Conclusion
For these reasons, we reverse the judgment of conviction and remand this case to the trial court for a new trial consistent with this opinion if the Commonwealth is so advised.
Reversed and remanded.
. The Virginia Administrative Code requires that most such interviews be recorded. 22 VAC 40-705-80(B)(l) provides in pertinent part: "The child protective services worker shall conduct a face-to-face interview with and observation of the alleged victim child and siblings. All interviews with alleged victim children must be electronically recorded [except in certain circumstances, none of which are applicable here].”
. As discussed more fully below, we conclude that the evidence at issue is material and exculpatory because of its impeachment value with regard to L.S.’s testimony as well as with respect to the testimony of *289Investigator Gilliam and Ms. Scheid, whose testimony was based in part on L.S.’s interview statements. However, we find that the audio tape of L.S.'s interview with Investigator Gilliam and Ms. Scheid has no impeachment value with respect to Ms. Holloman's trial testimony, as her testimony only related to her opinion based on her expertise and L.S.’s statements made and behavior exhibited during counseling sessions. She did not testify to or comment on L.S.’s interview with Ms. Scheid and Investigator Gilliam.
. Judge Beales’ dissent ignores this approach as well as the definition of Brady materiality as recited in Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Instead, Judge Beales parses L.S.’s testimony item by item, concludes that he would have *290found the discrepancies regarding the quantum and location of her assaults insignificant and then performs exactly the sort of harmless error analysis found inappropriate in Bagley. His methodology fails to heed the Supreme Court’s admonition that
Kyles instructed that the materiality standard for Brady claims is met when "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." [Kyles,] 514 U.S. at 435, 115 S.Ct. at 1566; see also id. at 434-35, 115 S.Ct. at 1566 ("A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.”).
Banks v. Dretke, 540 U.S. 668, 698-99, 124 S.Ct. 1256, 1271, 157 L.Ed.2d 1166 (2004).
His dissent also displays a lack of appreciation for the basic concept that inconsistent statements that conflict on the details of alleged criminal acts are by definition material, not because they must affirmatively demonstrate innocence as suggested by Judge Beales, but rather they are material because the inconsistencies with regard to the facts surrounding the offense may be reasonably considered by the factfinder on the question of the witnesses' credibility and the weight to be given their testimony. Those tasked with assigning credibility to the witnesses are not appellate judges reviewing a bare transcript; they are the citizens sitting on the jury. Their credibility assessments take into account not only the words uttered by the witnesses, but also the manner in which they spoke them along with any non-verbal mannerisms that were observable but which no record can adequately document. Thus, the jury should have been permitted to include any inconsistencies from prior statements that related to any details of the alleged offenses in their overall credibility analysis and weigh them accordingly. In the context presented by this record, the Brady issue is whether the inability to cross-examine the witnesses in front of the factfinder with respect to inconsistencies between their trial testimony and an earlier interview regarding details of the criminal acts undermines confidence that a fair trial was had. While a properly conducted new trial may well achieve the same result, the point we must decide today is whether the totality of the record in this case supports a high degree of confidence that the trial conducted in this case, was fair. For the reasons discussed more fully below, we reach the conclusion that it was not.
. In Bagley, the United States Supreme Court "disavowed any difference between exculpatory and impeachment evidence for Brady purposes.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1565. See also Robinson v. Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986) (impeachment value alone makes information exculpatory).
. The exculpatory nature of this discrepancy in the locations where the alleged abuse occurred was compounded by the Commonwealth's response to Tuma’s motion for a bill of particulars advising that L.S. had been sexually abused at both locations.
. Constitutional error may occur when the prosecution fails to assist the defense by disclosing information that might have been helpful in conducting the cross-examination. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. "[S]uch suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial." Id.
. That the prosecutor gave Tuma's counsel Investigator Gilliam's one-page written summary of L.S.’s "30 to 40 minute” interview prior to trial and relied upon it herself did not satisfy her responsibility under Brady. A single-page summary of such a lengthy interview, must necessarily have been incomplete and indeed, among other discrepancies with the transcript, the written summary does not include L.S.’s interview responses that nothing ever happened at Grandma’s house, that Tuma never touched her at the Green Acres trailer, and that everything happened at the white house.
While Brady does not embrace a "best evidence" rule prohibiting the use of summaries, such summaries of exculpatory evidence must be complete and accurate.... An incomplete or inaccurate summary could be constitutionally insufficient under Brady when the omissions or inaccuracies resulted in the prejudicial suppression of material evidence favorable to the defendant.
Garnett v. Commonwealth, 275 Va. 397, 409, 657 S.E.2d 100, 108 (2008).
This case aptly illustrates the inherent risk, noted by our Supreme Court in Garnett, which a prosecutor takes on when only providing a "summary” of an interview in lieu of a verbatim recording or transcript. The written summary in this case does not include L.S.'s statements about where the abuse did not occur. The written summary also contained statements purportedly from L.S. that were not found in the transcript of the interview, without any explanation as to the discrepancy. Thus, the written summary was significantly incomplete.
. Ms. Scheid's trial testimony that L.S. reported abuse at Green Acres Trailer Park in the interview is not supported by the interview transcript. As previously noted, L.S. specifically stated in the interview, "it *296wasn’t when we were living in the trailer ..and further that the abuse did not occur at any other house than the white house. Thus, although Ms. Scheid testified at trial that the audio tape contained L.S. stating that the abuse occurred in the trailer, the record establishes that the tape did not contain such information. Therefore, Tuma's counsel could have used the audio tape to impeach Ms. Scheid’s testimony stating that L.S.’s allegation regarding the Green Acres Trailer Park was on the audio tape.
Tuma also alleges that he could have used the audio tape to impeach Investigator Gilliam's testimony that L.S. mentioned the abuse at the Green Acres Trailer Park in the interview. As previously mentioned, L.S. specifically stated in the interview, "it wasn’t when we were living in the trailer ...,” and further that the abuse did not occur at any other house than the white house. Thus, although Investigator Gilliam testified at trial that L.S. had mentioned the trailer in the interview, the record establishes that the audio tape did not contain such information. Therefore, Tuma's counsel could have used the audio tape to impeach Investigator Gilliam’s testimony that L.S. reported in the interview that Tuma abused her at the trailer.
. Code § 63.2-1516.1 provides that
[i]n all cases in which an alleged act of child abuse or neglect is also being criminally investigated by a law-enforcement agency, and the local department is conducting a joint investigation with a law-enforcement officer in regard to such an alleged act, no information in the possession of the local department from such joint investiga*298tion shall be released by the local department except as authorized by the investigating law-enforcement officer or his supervisor or the local attorney for the Commonwealth.
See also Code § 63.2-105(A) ("Persons having a legitimate interest in child-protective services records of local departments include ... attorneys for the Commonwealth.”).
. Aside from the straw men not part of our analysis or ultimate holding in this case that Judge Kelsey raises and promptly strikes down with respect to any application of the Rules of Professional Conduct for attorneys and any foundational deficiencies regarding the admission of the audio tape, the thrust of Judge Kelsey’s dissent flows from his initial flawed premise that the audio tape was "available during trial.” Judge Kelsey reasons that, since Tuma’s counsel became aware of the audio tape’s existence during the trial, any burden to learn the particulars of the exculpatory nature of the tape’s contents fell upon Turna, and he relies upon our Supreme Court’s decision in Read v. Virginia State Bar, 233 Va. 560, 357 S.E.2d 544 (1987), to support his analysis.
Read, in turn, relied upon a decision of the United States Court of Appeals for the Tenth Circuit holding that “ ‘Brady is not violated when Brady material is available to defendants during trial.' ” Id. at 565, 357 S.E.2d at 547 (quoting United States v. Behrens, 689 F.2d 154, 158 (10th Cir.1982)). In Read, the Court held that there was no Brady violation where the exculpatory information was already available for use by the defense. Id. at 563-64, 357 S.E.2d at 546. We fail to see how Read provides any support for the conclusion ultimately reached by Judge Kelsey. In Read, unlike this case, the defense had possession of the exculpatory information from both the witnesses themselves and from the proffer made by the prosecutor on the record after it rested its case.
Judge Kelsey's dissent also quotes United States v. Elmore, 423 F.2d 775 (4th Cir.1970), and observes that "no Brady violation occurs when the impeachment information was disclosed 'well before the end of the trial.’ ” In Judge Kelsey’s view, it is apparently enough to satisfy Brady by merely acknowledging the existence of the tape without the necessity for a prosecutor to do more to satisfy the rigors of due process. However, the law is clear that a prosecutor’s burden under Brady is not so amorphous and the approach taken by Judge Kelsey has been affirmatively rejected by the Supreme Court in Banks. The notion that
[a] rule thus declaring “prosecutor may hide, defendant must seek” is not tenable in a system constitutionally bound to accord defen*302dants due process. "Ordinarily, we presume that public officials have properly discharged their official duties. We have several times underscored the special role played by the American prosecutor in the search for truth in criminal trials.” Courts, litigants, and juries properly anticipate that "obligations [to refrain from improper methods to secure a conviction] ... plainly resting] upon the prosecuting attorney, will be faithfully observed.”
Banks, 540 U.S. at 696, 124 S.Ct. at 1275 (internal citations omitted). It is the factual contents of the statements memorialized by the recording that the prosecutor was obligated to disclose, not the mere existence of their container.
Moreover, Judge Kelsey's dissent also contends that the judgment should be affirmed on what is essentially a "right result, wrong reason” basis since the prosecutor in this case never argued at trial the position Judge Kelsey’s dissent adopts on appeal—that the strictures of Brady had been satisfied because Tuma "had access to the tape during trial.” To the contrary, such an analysis is inconsistent with the factual finding actually made. Relying on the representations of the prosecutor, the trial court concluded that the contents of the tape were not exculpatory and therefore the prosecutor had no duty to produce it. See Perry v. Commonwealth, 280 Va. 572, 579, 701 S.E.2d 431, 435 (2010) ("[C]ases are only proper for application of the right result for the wrong reason doctrine when the evidence in the record supports the new argument on appeal, and the development of additional facts is not necessary.”).
Finally, despite Judge Kelsey's apparent conclusion that the prosecutor's statement that Tuma’s counsel "can listen to it if he wants to” satisfied her affirmative duty under Brady, no timely disclosure ever actually occurred, because the prosecutor never produced the tape for the defense or disclosed the exculpatory nature of its contents at trial or at any other time. Furthermore, the prosecution’s agent, Dinwiddie DSS, resisted every effort by the defense to obtain the tape and while it was ultimately produced after Dinwiddie DSS's efforts to resist doing so were exhausted, this was not done until well after trial and certainly not in a timely fashion such that it could be used to cross-examine L.S., Investigator Gilliam, or Ms. Scheid.