“ Both petitioners testified in their own defense. Their version of the events was that the three young men approached the car and asked Foster for a cigarette, that Foster responded with epithets and reached down as if to pick up a gun or other weapon, and that they broke the windows to prevent his getting it. They said that they did not know it was a girl who fled into the woods. Petitioner John Giles testified that when he caught up with her, she offered to submit to him if he would help her escape from the others but that he declined. ”

“ The testimony of the girl and Foster is open to the construction that these key witnesses deliberately concealed from the judge, jury, and defense counsel evidence of the girl's promiscuity. [6] While under the law of Maryland specific acts of misconduct are inadmissible to impeach a witness' credibility, Rau v. State, 133 Md. 613, 105 A. 867, and specific acts of intercourse are inadmissible to establish the prosecutrix' consent. ”

“ In December 1961, petitioners, who are brothers, were convicted of rape of a 16-year-old girl after trial by jury in the Circuit Court for Montgomery County, Maryland. In May 1964, petitioners brought this proceeding under Maryland's Post-Conviction Procedure Act, Md.Ann.Code Art. 27, § 645A et seq. (1966 Supp.) . [1] Their petition alleged that the prosecution denied them due process of law in violation of the Fourteenth Amendment by suppressing evidence favorable to them, and by the knowing use of prejured testimony against them. ”

“ Governor Tawes subsequently commuted the sentences to life imprisonment.↑ Other counsel are representing them in the post-conviction proceedings.↑ The dissenting judges in the Court of Appeals were of the view that the extensive evidence of the girl's reputation for unchastity presented in the post-conviction record, added to the evidence of her emotional instability, might support a defense that she suffered from an uncontrollable weakness that petitioners might reasonably have mistaken for consent. ”

“ The truism that our federal system entrusts the States with primary responsibility in the criminal area means more than merely 'hands off.' The States are bound by the Constitution's relevant commands but they are not limited by them. ”

“ There can be little doubt that the defense might have made effective use of the report at the trial or in obtaining further evidence. In the first place, the report attributes statements to the girl and Foster that appear inconsistent with their trial testimony. The report quotes both as stating they were engaged in sexual relations when they were distracted by the noise at Bowie's car, and that the girl dressed before petitioners and Johnson approached. ”

“ The rape allegedly occurred about midnight, July 20, 1961, near Rocky Gorge, a swimming and fishing spot on the Patuxent River, in a secluded, wooded area of Montgomery County. The petitioners swam and fished there from early evening with Joseph Johnson [2] and John Bowie. The prosecutrix came there by automobile shortly before midnight with her date, Stewart Foster, and two other young men. Their car ran out of gasoline near Bowie's parked car. The girl and Foster remained in the car while the other young men went for gasoline. ”

“ His report recites that the girl 'stated that two of the * * * males had entered her and that the third had tried but gave up when he saw lights coming.' While this statement would seem to indicate that John Giles, who was the first to attempt intercourse, penetrated the girl, it must be read in light of the fact that Duvall's report is a two-page, third-person summary, representing what had transpired during the tense and hectic moments immediately after the incident, when the girl was nearly hysterical according to police testimony. ”

“ In relying upon material not part of the record as a reason for remand, we follow our practice of noticing supervening matter in order to avoid deciding constitutional questions by allowing state courts to take action which might dispose of the case. ”

“ Also allegedly suppressed were the facts concerning an occurrence in Prince George's County at a party on the night of August 26, 1961, five weeks after the alleged rape, and over three months before the trial. The girl had sexual relations with two men at the party, and later that night took an overdose of pills and was hospitalized in a psychiatric ward of Prince George's General Hospital for nine days as an attempted suicide. ”

“ If a new hearing is held in the state courts, an inquiry into these matters might be deemed appropriate.↑ The record before us affirmatively demonstrates that both Detective Collins and Mr. Kardy, who supervised the prosecution, had read the report before trial. Collins testified at the trial that he wrote up the report and had read it the night before. At the post-conviction hearing Kardy was asked: ' (Y) ou saw the police report prior to trial, of course? ”

“ A. Yes.'↑ The testimony was as follows:↑ 'Q. Why are you telling a different story today than the story you told the police immediately after this happened, and the story you told at the preliminary hearing?↑ The report recites that she was asked the following questions, apparently by Lieutenant Whalen, and gave the following answers:↑ Certainly the test cannot be, as is suggested, that a remand would be justified only if the evidence presented 'necessarily excludes the conclusion that John Giles achieved penetration, however slight.'↑ See Hunt v. ”