(concurring in part).

I agree with the majority that the order denying motion for new trial should be set aside and that a further hearing *740 on the motion should be held. However, I do not agree that the hearing should be limited to inquiring what the government had learned from the anonymous boy witness.

The defendant moved for a new trial on the ground that the government suppressed evidence favorable to the accused. A hearing was held on the motion and it was denied for the reason that the evidence known to the government was not favorable to the accused. Obviously the majority believes, as I do, that the government has not been candid with the court and suspicion hangs heavy in the air.

The trial commenced on January 12, 1965. On January 14, 1965, the government filed a partial statement of evidence favorable to the defendant. Later on the same day, the government represented to the court that the partial statement was a complete statement. On January 15, 1965, after the case was submitted to the jury and while the jury was deliberating, counsel for the government told defense counsel of the existence of a witness who had observed a person vaulting a high fence behind the bank at about the time of the robbery, that this witness furnished the government with a statement and then government counsel refused to identify the witness. The government has ever since steadfastly refused to disclose the identity of the witness and has refused to give a copy of the witness’ statement to the defendant.

There appears to be no doubt but that the information concerning the unnamed witness was communicated to defense counsel in the context of the court’s order to disclose the identity of all witnesses who might furnish evidence favorable to the accused. If the witness was not in fact known to be favorable to the defendant, the Assistant United States Attorney should have said nothing at all. But now it appears that the government knows something which it is suppressing and the inference is strong that it is favorable to the defense or it would be willingly disclosed.

No excuse at all is offered for maintaining the anonymity of the witness. The observation is made that he was only nine years old at the time, but this is not offered as a reason and besides many children of even tenderer years are called upon to testify in both civil and criminal cases with regularity. The only justification offered by the government for suppression of information inferentially favorable to the accused, including the identity of the witness, is simply that it is not in fact favorable. All that the government will say on the subject is that the boy “was not positive whether he (presumably the bank robber) ran down the alley, up the alley, or jumped over the fence.” To me this appears to be a flippant, if not insolent, disposition of the subject.

Initially the law relies upon the government to weigh the information available to it and in good faith determine whether information possessed by the government is favorable to the defendant. But obviously after the conduct of the government has raised an inference that it is suppressing evidence favorable to the accused, it is no longer up to the government to make the decision as to whether what it knows is or is not favorable.

At the hearing on the motion for new trial in the trial court, the government made a disclosure as to what the government knew concerning the potential testimony of the witness. The trial judge was of the opinion that what was disclosed was not sufficiently favorable to affect the outcome of the trial. But the government’s lack of candor has been such that the completeness of the disclosure is- suspect, as witness the suggestion in the majority opinion that the trial judge might in his discretion require the witness to be produced “to test the accuracy of the government’s representations as to what it had learned from him.”

I am disturbed by the potentialities for injustice in the phrase, “the precise issue is what the government had learned from the witness in question.” For ex *741 ample, the government might cease interrogation of a witness to deliberately avoid knowledge of evidence favorable to the accused. The witness would back up the government’s claim that he didn’t relate anything favorable to the accused. 1 Or perhaps the government might receive a telephone call from a witness to the robbery who says that he has information which will clear the man on trial. The government doesn’t know what the favorable evidence would be, but it knows that the witness would favor the accused. In such situations, it is my opinion that a refusal to name the witness is suppression of evidence favorable to the accused. 2

*742 On motion for a new trial on the ground that the defendant has been denied due process because the government suppressed evidence favorable to the accused, it must be determined whether the evidence would be favorable enough to make it likely that a new trial would produce a different result. To make this determination in a case where the witness is known to have undisclosed knowledge which is thought to be favorable to the accused, the testimony of the witness must be taken.

The majority says that the government’s persistence in refusing to name the eyewitness raises an inference which meets “the defendant’s initial burden of showing the nature of the suppressed testimony.” An inference must be drawn from fact. The fact from which this inference is drawn is the suspicious conduct of the government. But the nature of the suppressed testimony is not at all actually supplied by inference except that it is inferred that such testimony will probably favor the accused. Ordinarily the substance of the suppressed evidence is supplied to the court by the defendant. This is the step the inference dispenses with. The next step is to examine what has been supplied by the defendant and to determine whether it is sufficiently favorable to the accused to affect the outcome of a trial. But here the inference furnishes nothing to be examined until the testimony is obtained.

The suppression of the identity of the witness is the suppression of his testimony, whatever it might be. Viewed in this light, the conduct of the government has given rise to an inference that evidence in the form of testimony favorable to the defense is being suppressed and this should relieve defendant of the initial burden which he ordinarily bears. At this point, the government should be called upon to produce the testimony, not just what part of it was actually known to the government, but the whole of it by producing the witness himself because all of it has been suppressed. Then after the testimony is taken, it can be examined to determine whether it would have likely affected the outcome of the trial.

I am mindful that not infrequently there are very good and sufficient reasons for not disclosing the identity of a witness. The suggestion that the trial judge should decide whether to hold such a hearing in camera or in open court in all probability will overcome objections to disclosure. But in the final analysis, if a reason is advanced against disclosure of the identity of the witness or production of the witness, the trial judge must pass upon its sufficiency.

Barring the existence of a sufficient reason against identifying or producing the witness, I think that the boy whose identity has been suppressed should be produced and interrogated not only concerning what he told the government, but concerning everything he can remember which is relevant to this case. This is the only way that justice can be done and the appearance of justice upheld and preserved.

. See Application of Kapatos, D.C., 208 F.Supp. 883 (1962). In this case, Danise, a witness to important sequences of the commission of a murder was known to the prosecution but not called to testify. The prosecuting attorney had a transcript of this witness’ testimony before the Grand Jury, but did not call him as a witness at the trial since he did not consider his testimony probative because he had no confidence in his credibility. When finally called to testify in the federal court in the habeas corpus proceeding, the following facts came out (see footnote, page 886): Danise saw the petitioner, who had been convicted of the murder, walk up the street after the shooting and after the witness observed two other persons escaping under extremely suspicious circumstances and disappear from view. He did not tell the. Assistant District Attorney who investigated the case because the Assistant District Attorney did not ask him. He tried to tell the Grand Jury about it but was cut off in the middle. He started to tell the police officer who had taken him to the courtroom to see if ho could identify the accused, but the police officer would not listen. The federal court granted the writ of habeas corpus and conditionally ordered the pe-tioner discharged, commenting in the opinion at page 8S7:

And at page 888:

. See United States ex rel. Meers v. Wilkins, 2 Cir., 326 F.2d 135 (1964), citing with approval the Kapatos case and quoting what appears in footnote 1 from page 888 of that opinion. The opinion concluded with the following paragraph:

In Curtis v. Rives, 75 U.S.App.D.C. 66 , 123 F.2d 936, 938 , referring to appellant’s charge that the prosecution had concealed “evidence or witnesses” favorable to the accused, it was stated, “We may assume that this would be a violation of the due process clause of the Fifth Amendment.”