Douglas, J.
In this case, we are called upon to decide whether a prosecutor has violated Crim. R. 16 by not producing, pursuant to a defendant’s timely and proper discovery request, all recorded statements made by such defendant. Further, if such a violation is found, it must be determined whether the violation was prejudicial to the defendant in order to avoid the effect of the harmless-error rule.
Crim. R. 16 provides in pertinent part:
“(A) Demand for discovery. Upon written request each party shall forthwith provide the discovery herein allowed. * * *”
It is uncontroverted that appellant made a proper and timely motion for discovery pursuant to Crim. R. 16(A). Crim. R. 16(B) sets forth the types of information available to a defendant upon request. Specifically, Rule 16(B) provides:
“Disclosure of evidence by the prosecuting attorney.
“(1) Information subject to disclosure.
“(a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney:
“(i) Relevant written or recorded statements made by the defendant or co-defendant or copies thereof[.]” (Emphasis added.)
Appellee argues that subdivision (i) is limited to those recorded statements relevant to the subject matter of the charges presented. The court of appeals agreed with the appellee and ruled that since the July 10 taped conversation was not relevant to the state’s case in proving the charges against appellant, the tape recording was not discoverable by the appellant.
[65] Appellee cites Evid. R. 401 as support for its position that only statements regarding the subject matter of the charges presented are discoverable. Evid. R. 401 provides:
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
A statement is relevant only when it is of consequence to the outcome of the action. The state, however, misconstrues this rule, maintaining that unless the recorded statement entails the actual commission of the crime or specifically refers to the offense charged, the statement is neither relevant nor discoverable. In particular, appellee argues that the appellant’s July 10, 1985 recorded statement did not refer to the June 5, June 6 and June 18 offenses. Appellee reasons that the July 10 statement did not contain direct evidence of a type which might cause a jury to conclude more probably than not that the appellant was guilty of the three charged offenses. Essentially, the state is asking this court to rule that a statement is only relevant if it is direct evidence of the offense with which the defendant is charged. This we decline to do.
As appellee suggests, material, such as a recorded statement which comprises direct evidence of a claim against a defendant, is relevant. However, relevant evidence is not limited to merely direct evidence proving a claim or defense. Rather, circumstantial evidence bearing upon the probative value of other evidence in the case can also be of consequence to the action. For example, the evidence establishing or impeaching the credibility of witnesses is of consequence to the action because it might determine whether the jury believes a particular witness. Herein, the July 10 tape-recorded threat by appellant was played by the prosecution to impeach the appellant’s credibility after he had denied on cross-examination that he had ever had a July conversation with the undercover informant, Shanks.
Clearly, this recorded statement was relevant within the definition of Evid. R. 401, for it had a tendency to make Moore’s truthfulness less probable than it would have been without the statement. Obviously appellant’s credibility was of consequence to the charge. Although the July 10 statement was not relevant as direct evidence, it was relevant as circumstantial evidence to impeach the credibility of appellant.
Evid. R. 402 provides that all relevant evidence is admissible, and evidence which is not relevant is not admissible. The state’s claim that it did not intend to úse the July 10 recorded statement in the prosecution of Moore is not dispositive of Moore’s right to inspect his tape-recorded statements. Accordingly, the state’s relevancy argument is unpersuasive.
Further, a number of federal courts have interpreted the analogous federal discovery provision and have adopted a broad construction of the rule.1 The overriding premise is that a defendant’s right to fundamental fairness in defending himself requires that [66] he have access to his relevant recorded statements. Certainly, we recognize that the federal courts are split as to the scope and impact of what relevant recorded statements are discoverable. Nevertheless, we are persuaded by the rationale found in those federal decisions wherein fairness to the defendant mandates a broad scope of discovery.
When faced with the issue of whether a defendant is entitled to discovery of his pre-arrest recorded statements, the Seventh Circuit Court of Appeals in United States v. Isa (1969), 413 F. 2d 244, at 246, stated:
“If the rulemakers had intended that the provision be applicable only to a recital of ‘past occurrences’ or dependent upon ‘a showing of need,’ they could have readily so stated.”
The district court in United States v. Sherwood (W.D.N.Y. 1981), 527 F. Supp. 1001, stated that the Notes of the Advisory Committee on 1974 Amendments to Rules made disclosure of recorded statements by the defendant mandatory. Specifically, disclosure provides the defendant with enough information to make an informed decision as to a plea and it reduces the chances of prosecutorial surprise at trial. Accordingly, statements made by a defendant in an ongoing investigation are discoverable as they may assist the defendant in preparing his defense and planning defense strategy.
There can be no doubt that the Sixth Amendment, as it is applied to the states through the Fourteenth Amendment, provides that a defendant be afforded a fair trial. A defendant’s full discovery of his relevant recorded statements serves to alleviate surprise, thereby preserving the right to a fair trial.
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Douglas, J.
In this case, we are called upon to decide whether a prosecutor has violated Crim. R. 16 by not producing, pursuant to a defendant’s timely and proper discovery request, all recorded statements made by such defendant. Further, if such a violation is found, it must be determined whether the violation was prejudicial to the defendant in order to avoid the effect of the harmless-error rule.
Crim. R. 16 provides in pertinent part:
“(A) Demand for discovery. Upon written request each party shall forthwith provide the discovery herein allowed. * * *”
It is uncontroverted that appellant made a proper and timely motion for discovery pursuant to Crim. R. 16(A). Crim. R. 16(B) sets forth the types of information available to a defendant upon request. Specifically, Rule 16(B) provides:
“Disclosure of evidence by the prosecuting attorney.
“(1) Information subject to disclosure.
“(a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney:
“(i) Relevant written or recorded statements made by the defendant or co-defendant or copies thereof[.]” (Emphasis added.)
Appellee argues that subdivision (i) is limited to those recorded statements relevant to the subject matter of the charges presented. The court of appeals agreed with the appellee and ruled that since the July 10 taped conversation was not relevant to the state’s case in proving the charges against appellant, the tape recording was not discoverable by the appellant.
[65] Appellee cites Evid. R. 401 as support for its position that only statements regarding the subject matter of the charges presented are discoverable. Evid. R. 401 provides:
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
A statement is relevant only when it is of consequence to the outcome of the action. The state, however, misconstrues this rule, maintaining that unless the recorded statement entails the actual commission of the crime or specifically refers to the offense charged, the statement is neither relevant nor discoverable. In particular, appellee argues that the appellant’s July 10, 1985 recorded statement did not refer to the June 5, June 6 and June 18 offenses. Appellee reasons that the July 10 statement did not contain direct evidence of a type which might cause a jury to conclude more probably than not that the appellant was guilty of the three charged offenses. Essentially, the state is asking this court to rule that a statement is only relevant if it is direct evidence of the offense with which the defendant is charged. This we decline to do.
As appellee suggests, material, such as a recorded statement which comprises direct evidence of a claim against a defendant, is relevant. However, relevant evidence is not limited to merely direct evidence proving a claim or defense. Rather, circumstantial evidence bearing upon the probative value of other evidence in the case can also be of consequence to the action. For example, the evidence establishing or impeaching the credibility of witnesses is of consequence to the action because it might determine whether the jury believes a particular witness. Herein, the July 10 tape-recorded threat by appellant was played by the prosecution to impeach the appellant’s credibility after he had denied on cross-examination that he had ever had a July conversation with the undercover informant, Shanks.
Clearly, this recorded statement was relevant within the definition of Evid. R. 401, for it had a tendency to make Moore’s truthfulness less probable than it would have been without the statement. Obviously appellant’s credibility was of consequence to the charge. Although the July 10 statement was not relevant as direct evidence, it was relevant as circumstantial evidence to impeach the credibility of appellant.
Evid. R. 402 provides that all relevant evidence is admissible, and evidence which is not relevant is not admissible. The state’s claim that it did not intend to úse the July 10 recorded statement in the prosecution of Moore is not dispositive of Moore’s right to inspect his tape-recorded statements. Accordingly, the state’s relevancy argument is unpersuasive.
Further, a number of federal courts have interpreted the analogous federal discovery provision and have adopted a broad construction of the rule.1 The overriding premise is that a defendant’s right to fundamental fairness in defending himself requires that [66] he have access to his relevant recorded statements. Certainly, we recognize that the federal courts are split as to the scope and impact of what relevant recorded statements are discoverable. Nevertheless, we are persuaded by the rationale found in those federal decisions wherein fairness to the defendant mandates a broad scope of discovery.
When faced with the issue of whether a defendant is entitled to discovery of his pre-arrest recorded statements, the Seventh Circuit Court of Appeals in United States v. Isa (1969), 413 F. 2d 244, at 246, stated:
“If the rulemakers had intended that the provision be applicable only to a recital of ‘past occurrences’ or dependent upon ‘a showing of need,’ they could have readily so stated.”
The district court in United States v. Sherwood (W.D.N.Y. 1981), 527 F. Supp. 1001, stated that the Notes of the Advisory Committee on 1974 Amendments to Rules made disclosure of recorded statements by the defendant mandatory. Specifically, disclosure provides the defendant with enough information to make an informed decision as to a plea and it reduces the chances of prosecutorial surprise at trial. Accordingly, statements made by a defendant in an ongoing investigation are discoverable as they may assist the defendant in preparing his defense and planning defense strategy.
There can be no doubt that the Sixth Amendment, as it is applied to the states through the Fourteenth Amendment, provides that a defendant be afforded a fair trial. A defendant’s full discovery of his relevant recorded statements serves to alleviate surprise, thereby preserving the right to a fair trial.
Appellant maintains that not only did the prosecution violate Crim. R. 16, but that the prosecution wilfully violated this discovery rule when it did not produce the July 10 recorded statements for appellant’s inspection prior to trial. The record reveals, however, that appellant raised no objection to the playing of the tape before the jury. Furthermore, the trial judge could not have abused his discretion when there was no objection on which to rule. Nevertheless, the analysis in State v. Parson (1983), 6 Ohio St. 3d 442, 445, 6 OBR 484, 488, 453 N.E. 2d 689, 692, is instructive to measure the significance of prosecutorial violations of the discovery rule. The state’s failure to provide discovery will not amount to reversible error unless there is a showing that the prosecution’s failure to disclose was a wilful violation of Crim. R. 16, that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or that the accused was prejudiced by admission of the statement.
While we accept the assertion of the state, made at oral argument, that failure to provide discovery of the tape in question was inadvertent, it is necessary to detail what the record reflects concerning the use by the prosecutor of the July 10 recorded conversation.
Immediately after Moore denied on cross-examination that he had had a July 10 conversation with Shanks, the prosecution, without even so much as a break to prepare for rebuttal, called as a witness Ralph Eversole who was the surveillance officer who recorded the conversation between appellant and Shanks. The pertinent part of the record involving Eversole’s testimony shows:
“Mr. Wittenberg: The defense rest [sic\, your Honor.
“The Court: Mr. Keister, any rebuttal witnesses?
[67] “Mr. Keister: Yes, your Honor, I would call Ralph Eversole.
“Thereupon the State of Ohio called as a rebuttal witness, Ralph Eversole, who being previously sworn, testified as follows:
“Direct Examination
“By Mr. Keister:
“Q Ralph, do you have an exhibit with you that I need to mark?
“A Yes, Sir, Ido.
“Thereupon counsel approached the bench and a conversation was held out of the hearing of the jury and reporter. Thereupon the reporter marked State’s Exhibit #10.
“By Mr. Keister:
“Q I hand you what has been marked as State’s Exhibit #10, can you remove the item contained therein and identify it if you can?
“A Yes, Sir. This is a Panasonic small tape removed from an evidence bag that was taped on July 10th, 1985 of this year between Joseph Shanks and Richard Moore.”
Nothing in the record indicates that there was any hesitation on the part of, or delay requested by, the prosecution. It is clear from the record that the prosecution knew that Ever-sole would produce the July 10 tape. The prosecution apparently anticipated that on cross-examination appellant would deny the July 10 conversation with Shanks and immediately sought to impeach Moore’s credibility with the tape recording. It does not appear from the record that this was an unexpected incident in which the prosecution scrambled to impeach the defendant’s credibility. Rather, the prosecutor’s withholding of the July 10 tape from defendant’s discovery request clearly resulted in surprise to the defense.
Our next inquiry is whether disclosure of the tape would have benefited the defendant in preparing his defense. Appellant contends that had he been provided with foreknowledge of the July 10 recorded statement, he would have accepted the plea bargain previously offered him. Appellant further asserts that advance knowledge of the tape-recorded statement would have had a great impact on his decision to testify in his own behalf.
We agree with appellant that knowledge of the existence of the tape would have benefited him in planning his defense. Because the recording was used to impeach appellant’s credibility, he was entitled to inspect the tape so he could make an intelligent decision as to whether to testify in his own behalf as the sole witness for the defense. Any evidence impeaching the credibility of the sole witness was of crucial relevance to appellant’s defense. The right to plan an adequate trial strategy is precisely what the federal courts, in Isa and Sherwood, supra, recognized as the dominant reason for a broad scope of discovery.
Finally, we consider whether appellant was prejudiced by the admission of the undisclosed statement into evidence. The record indicates that Eversole identified the tape recording and summarized its contents before the tape was ever played. The record reflects the following:
“Mr. Keister: Would you play the tape?
“* * * Ralph, before the tape is begun, what was the nature of the conversation, as far as you could hear, from the Defendant?
“A From the Defendant, himself, was that he was not going to take Joe Shanks to his supplier. He had sold Joe Shanks cocaine. He had sold him cocaine in the past, uh, the argument became heated with Mr. Moore telling Mr. Shanks that if he ever found out that he was a police officer or affiliated [68] with any type of police, he would shoot him, he’d kill him.
“Thereupon State’s Exhibit #10 was played for the jury.
“Mr. Keister: No further questions.”
As previously indicated, defense counsel did not object to the playing of the tape as irrelevant. In fact, at that moment in the trial it was highly relevant. Even if the tape had been excluded at the time it was offered, the damage had already been done. Ever-sole had identified the tape as a July 10 conversation between appellant and Shanks. Before the tape was played, it was obvious that the tape contained evidence incriminating to the appellant. Prejudice to appellant had occurred. Immediately after the tape was played, defense counsel requested a mistrial on the basis that the prosecution had violated the discovery rule. Appellant’s motion was overruled.
Accordingly, we hold that pursuant to Crim. R. 16(B)(l)(a)(i), a defendant is entitled to discovery of relevant written or recorded statements made by him, and it is not within the province of the state to determine, and then to provide, only that which the state believes to be relevant to the defense. To permit such conduct would serve to undermine the purpose of the discovery rule and impinge on the defendant’s right to a fair trial. Further, we find that this error was not harmless beyond a reasonable doubt.
The judgment of the court of appeals is reversed. This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
Moyer, C.J., Sweeney and H. Brown, JJ., concur. ,
Locher, Holmes and Wright, JJ., dissent.