Cite as: 504 U. S. 36 (1992)
Stevens, J., dissenting
held evidence was not exculpatory or significant.1 Instead of questioning the controlling rule of law, it distinguished the facts of this case from those of an earlier case in which an indictment had been dismissed because the prosecutor had withheld testimony that made it factually impossible for the corporate defendant to have been guilty.2 The Government concluded its principal brief with a request that the court apply the test set forth in Bank of Nova Scotia v. United States, 487 U. S. 250 (1988), "follow the holding of Page," and hold that dismissal was not warranted in this case because the withheld evidence was not substantial exculpatory evidence and respondent "was not prejudiced in any way." Brief for United States in No. 88-2827 (CA10), pp. 40-43.
After losing in the Court of Appeals, the Government reversed its position and asked this Court to grant certiorari
1 "The government has acknowledged that it has certain responsibilities under the case of United States v. Page, 808 F. 2d 723 (10th Cir. 1987), and that includes a duty to not withhold substantial exculpatory evidence from a grand jury if such exists. . . . The government would contend that . . . it was familiar with and complied with the principles stated in the case. . . . Considering the evidence as a whole, it is clear that the government complied with, and went beyond the requirements of Page, supra." Brief for United States in Response to Appellee's Brief in Nos. 88-2827, 88-2843 (CA10), pp. 9-10.
2 Respondent had relied on United States v. Phillips Petroleum Co., 435 F. Supp. 610 (ND Okla. 1977). The Government distinguished the case based on "the type of evidence excluded. In Phillips, supra, the prosecutor sent the Grand Jury home for the day, but continued questioning a witness. In that session, outside the hearing of the Grand Jury members, the witness, who had been granted use immunity, testified to certain information which showed that the witness had been the one who knowingly committed an offense, and showed that the corporation had not intentionally committed an offense in that case. There was no question that the withheld testimony made it factually impossible for the corporate defendant to have been guilty, and therefore the evidence was substantial and exculpatory. In the instant case there is a disagreement between the government and the defendant as to whether the documents the defendant wants presented in full are exculpatory." Brief for United States in No. 88-2827 (CA10), p. 38.
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