delivered the opinion of the court:
The petitioner, Charles Jones, was found guilty of the murder of George Johnson after a bench trial and sentenced to a temí of 20 to 40 years. The judgment was affirmed on direct appeal. (People v. Jones, 121 Ill.App.2d 268, 257 N.E.2d 514.) His post-conviction petition was dismissed without an evidentiary hearing. The sole issue in the appeal of that dismissal is whether he was denied due process by the failure of the State to apprise him of the grand jury testimony of a witness who was not called to testify at the trial.
At the outset, we must reject the State’s assertion that the argument now advanced is waived since it was not raised by direct appeal. Tire waiver rule does not apply where the allegations in a post-conviction petition can be proved only by facts outside the record. (People v. Dennis, 14 Ill.App.3d 493, 302 N.E.2d 651.) That Dean gave favorable testimony before the grand jury and that the State did not disclose his testimony are not disclosed by the record on appeal.
Before trial, the defendant filed a motion requesting a list of witnesses and copies of any written or oral statements made by the State’s witnesses. In response, the State submitted a list of witnesses which included the name and address of Johnny Dean. Dean’s name also appeared on the back of the indictment.
At the trial, Cleophas Martin, a cab driver, testified that at 4 a.m. on April 26, 1968, he saw two men apparently arguing over money. *1027They looked as if they were going to fight, and one of them pulled out a gun and shot tire other. The man shot was facing Martin, who did not see anything in the man’s hands. The man who fired the shot drove off in an automobile.
Robert Johnson testified that he was at a tavern with his brother, George, two other men and a girl. As they left, Tommy Houston, the defendant’s cousin, approached Johnny Dean, pointed a gun at him and demanded money that he was owed. George Johnson gave some money to Houston, who fired some shots and fled. Robert Johnson chased Houston, emptying a pistol at him during the chase. He could not catch Houston and returned. As he approached the defendant’s automobile, he saw his brother and the defendant arguing. Then he heard a shot and saw his brother fall to the ground.
The defendant testified that as he came out of a tavern, Johnny Dean hit him, shouting to George and Robert Johnson that the defendant was a cousin of Houston’s. As the defendant walked to his car, George Johnson struck him and started to pull out a gun, so the defendant shot him.
Thomas Houston testified for the defense that he met Johnny Dean at the tavern and demanded money that Dean owed. Dean told Houston he would get it from George Johnson. Dean pulled a knife, which Houston took from him. Houston had George Johnson drop the money on the street and back off. Houston picked up the money and ran. Deari attempted to get a gun to shoot him. As Houston ran, the three men chased him, and Robert Johnson was firing shots at him.
Robert Johnson also testified that when he came back after chasing Houston, he saw his brother, George, Johnny Dean, the defendant, and two other people at Dean’s car. As he approached, he heard what sounded like “ ‘Let’s fight’ or something.” He also testified that “they [the defendant and the deceased] were going to hit each other and there was a shot.”
To his post-conviction petition the defendant attached a transcript of the grand jury testimony of Robert Johnson and Dean and the affidavit of his trial attorney. Robert Johnsons grand jury testimony was substantially the same as his trial testimony. Dean, who did not testify at the trial but was present in court, testified before the grand jury that when he left the tavern, Tommy Houston was waiting outside with a pistol and “robbed” them; that when Houston picked up the money from the ground, he fired two or three shots in the air. Dean and Robert Johnson tried to catch Houston. When the defendant drove up, Dean called out that the defendant was Houston’s cousin and that he could help them get their money back by taking them where Houston was. *1028George Johnson went to the car where the defendant was. Dean testified: “One word led to another and they got to fighting and I ran .across the street. I was talking to one of the boys that was with his cousin. Then this other boy pulled a pistol up and shot George.” Later he testified: “I don’t know who got the first lick. They startéd fighting. I got there and grabbed Steve, and Charles Jones shot George.”
The affidavit of the defendant’s trial attorney is, in part, as follows:
“2. The Assistant State’s Attorney complied with an oral and written answer to my Motion for Discovery on July 12, 1968.
3. The answer did not include notice of a favorable statement made at the Cook County Grand Jury on Jime 7, 1968, by Johnny Dean, who was fisted as a State’s witness.
4. During the course of the trial, at no time did I receive notice of this statement made by an occurrence witness.
5. The State failed to call Johnny Dean, as a witness, though the trial transcript reflects that he was present in court during the course of the proceedings.”
The defendant contends that the State’s failure to apprise, him of Dean’s grand jury testimony denied him due process, relying principally on Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. But we do not believe that Brady is dispositive of the precisely same issue that is before us. In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request 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.) In Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, the United States Supreme Court construed Brady thus (408 U.S. at 794):
“The heart of the holding in Brady is the prosecution’s. suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the • evidence. These are the standards by which tire prosecution’s conduct in Moore’s case is to be measured.” (Emphasis added.)
The State concedes that Dean’s testimony-that there was a,fight, although he did not know who struck the first blow, would have corroborated the defendant’s testimony-that there was a fight.--The State’s witnesses had testified that the defendant: and the deceased looked like they were going to fight.
*1029 At the time this case was tried, the State was not required to provide grand jury testimony unless and until the witness testified at trial. (People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399.) The trial attorney understandably did not expressly request production and examination before trial. His affidavit shows that the State answered his motion orally and in writing without providing any grand jury transcripts. The defendant now contends that his request for “statements” embraced grand jury testimony. The defendant obviously did not think so at the time the State answered his discovery motion; nor do we think so now. It has been held that grand jury testimony should be available for inspection by the defendant for the same reason that statements of witnesses are available. (People v. Davis, 103 Ill.App.2d 418, 423-424, 244 N.E.2d 381.) But no judge could reasonably be expected to be on notice that a request for “statements” included grand jury testimony. We note that the present discovery rules make an express distinction between “statements” of witnesses (50 Ill.2d R. 412(a) (i), (ii)) and grand jury testimony (50 Ill.2d R. 412(a) (iii)). Since there was no request for grand jury testimony, Brady is factually inapposite.
But our conclusion of Brady’s factual inapplicability is not dispositive of the question. What this case boils down to is the question of whether the State has “suppressed” evidence favorable to the defendant. Suppression necessarily involves knowledge, actual or imputed, on the part of the prosecution of the existence of the favorable evidence. In Napue v. Illinois, 360 U.S. 264, 3 L.Ed.2d 1217, 79 S.Ct. 1173, an accomplice witness testified on cross-examination that he had received no promises. The prosecutor trying the case knew this to be false but took no steps to correct it. The Supreme Court held that, although the prosecutor did not elicit the false testimony, his failure to correct it was tantamount to knowing, use of perjury. The principle of Napue was extended in Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763, in which, again, an accomplice, who had not been indicted, testified that no one had told him that he would not be prosecuted. DiPaola, the assistant district attorney who presented the case to the grand jury, submitted an affidavit in which he stated that it was agreed with the witness that the witness would not be prosecuted if he testified for tire government. The affidavit of Golden, the assistant district attorney who tried the case, showed that before trial he had conferred with DiPaola, who told him the witness had not been granted immunity but that he had not indicted the witness because of his youth and because he “had been overreached by [the defendant].” The United States’ attorney’s affidavit established that he told the.witness and his attorney that he would be prosecuted if he did not testify and that if he did testify he *1030would be obliged to rely on the “good judgment and conscience of the government” as to whether he would be prosecuted. In ordering a new trial, the Supreme Court said (405 U.S. at 154):
“In the circumstances shown hy this record, neither DiPaola’s authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. [Citations.] To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” (Emphasis added.)
The court, in substance, held that DiPaola was under a duty to disclose his promise to the witness.
A defendant has no constitutional right to the recordation of the testimony of the grand jury witnesses (People v. Lentz, 55 Ill.2d 517, 304 N.E.2d 278; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750); nor, if the testimony is recorded, to have it transcribed (People v. Aughinbaugh, 36 Ill.2d 320, 324-325, 223 N.E.2d 117). It has long been the practice in Cook County, however, to record grand jury testimony; but the transcription of such testimony had been the exception rather than the rule before People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399. After Johnson, the general practice was to require the State, after motion by the defense, to have a witness’ grand jury testimony transcribed, if recorded, and available for inspection by the defense when the witness testified. In this regard, the only change made by the discovery rules was to permit pretrial inspection of grand jury testimony of witnesses the State intended to call. Although this case was tiled after Johnson, no motion was made to require the availability of the grand jury testimony.
Implicit in the argument of the defendant was the duty of the trial prosecutor to take steps to determine what the witness testified to before the grand jury or the duty of the prosecutor who was present at the grand jury proceedings to inform the trial prosecutor of what the witnesses had testified to. In order to fulfill his obligation, the trial prosecutor was required to have all of the grand jury testimony of the witnesses transcribed, in spite of the holding in Aughinbaugh, and in spite of the absence of any motion by the defendant; or, to confer with the prosecutor who conducted the grand jury proceedings and to ask *1031him to recite the testimony of the witnesses on the chance he would hear something favorable to the defendant. The duty imposed upon the prosecutor before the grand jury was to have all the testimony transcribed and to determine what evidence might be favorable to a defendant; or, if the testimony was not transcribed, to remember all the testimony, to determine what might be favorable to the defendant; and, in either case, whether the testimony was transcribed or not, confer with the trial prosecutor and inform him of the testimony which might be considered favorable to the defendant.
In 1968, there were 4462 indictments returned. The assistant State’s Attorney who conducted the grand jury proceedings in this case was Edwin Spiro, whose sole assignment was, and had been for several years, the processing of cases through the grand jury. It is safe to say that of the 4462 indictments returned in 1968, he processed well over half of them. This record shows that the testimony before the grand jury was presented, like most cases before that body, in a brief, perfunctory manner, satisfying the requirements of probable cause. It was not an investigatory procedure. Under the circumstances, to have expected Spiro to note the favorable aspect of Dean’s testimony (which in some other aspects could be considered damaging to the defendant), four months later to remember it out of the thousands of other witnesses he had heard, and to confer with the assistant State’s Attorneys who were about to try the case, is to require too much of a mere mortal. It is one thing to say that there is no justification for failing to notify the defendant of Dean’s testimony while recognizing that there are difficult administrative problems in devising a procedure ensuring the flow of information from the assistant prosecutor in the grand jury to tire trial assistant. It is quite another to provide a solution for those difficult administrative problems.
It should be noted that, unlike Napue and Giglio, this case does not involve the knowing use of perjured testimony. And unlike those two cases, this case does not involve an overt act on the part of a prosecutor — the promise of immunity or leniency. An accomplice who testifies without hope of immunity or leniency is a rare one indeed; but even less rare is a trial prosecutor who would not know that the accomplice would be cross-examined about promises; and no trial prosecutor worth his legal salt would not endeavor to learn whether and by whom any promises had been made to the witness. In Giglio, the trial prosecutor did confer with DiPaoIa, and discussed whether any agreements had been made. Moreover, that Giglio was an exceptional case is evidenced by the fact that the United States’ attorney was personally involved in the negotiations with the witness. In this case, there *1032were no unusual circumstances that should have alerted the trial prosecutors to the need to examine Deans grand jury testimony: As noted, the defense had made no motion for grand jury testimony. The State had complied with the discovery motion. The nature of the case requires the conclusion that the police interviewed Dean. It is unreasonable to believe that they did not reduce that interview to some form of writing, either his written statement or a memorandum containing what he had told the police. We think it significant that the affidavit of tire trial attorney did not specifically negate the reception of a police statement of Dean’s. The prosecutor had submitted the name and address of Dean in answer to the discovery motion. We judge, therefore, that there was no duty on the part of the trial prosecutor to ascertain what Dean’s grand jury testimony was and that the defense has failed to establish any suppression of favorable evidence on the part of the State.
By our holding, we are not judging that the State may never be considered to have suppressed evidence because that evidence may have been heard before a grand jury. Each case must rest on its own facts. Giglio, we add, addressed itself specifically only to a promise ■ of immunity. When the Supreme Court said (405 U.S. at 154): “To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden * * *” (emphasis added), it was referring to its holding in the preceding sentence that the promise made by one particular government attorney must be attributed to the government. We do not believe that the language of Giglio may be considered a sweeping principle of law that attributes knowledge to all assistant prosecutors of every statement made to any of them.
In Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, it was held that the failure to produce a police statement was not a denial of due process under the circumstances. The distinction sought to be drawn that Moore involved information given to the police, while in this case information was given to the grand jury in the presence of tire prosecutor, is a specious one. The law makes no such distinction. For example, in People v. Galloway, 59 Ill.2d 158, 319 N.E.2d 498, the court held that information in the possession of the police, not the prosecutor, and withheld from the defendant was a denial of due process. The prosecutor may not deliberately insulate himself from sources of information and he should be held to account where the information could have been acquired by reasonable diligence (People v. Galloway, 59 Ill.2d 158, 319 N.E.2d 498), but he should not be expected to be omniscient.
In a post-conviction hearing the "burden is on the petitioner to *1033show that he was deprived of a substantial constitutional right. The defendant, therefore, has the burden of proving that he was unaware of what Dean’s version of the occurrence was. First, there is no showing when or how the defendant acquired the grand jury transcript. For all we can determine, he personally could have had it at the time of trial. The affidavit of the trial attorney does not maintain that the defense did not inter-view Dean. The affidavit alleges that the State provided written and oral answers to his request for written and oral statements. Significantly, as we have previously noted, the affidavit does not maintain that no statement of Dean’s was included. The affidavit pointedly asserts that at no time did the attorney “receive notice of this statement” (emphasis added), meaning the testimony of Dean before the grand jury.
For these reasons, we judge that the defendant has failed to prove the denial of a substantial constitutional right. Tire judgment of the circuit court is affirmed.
BURKE, P. J., concurs.