Slip opinion

NOTE: Where it is feasible, a syllabus
(headnote) will be released, as is being
done in connection with this case, at
the time the opinion is issued.  The
syllabus constitutes no part of the
opinion of the Court but has been pre-
pared by the Reporter of Decisions for
the convenience of the reader.  See
United States v. Detroit Lumber Co., 200
U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

              Syllabus

   UNITED STATES v. SALERNO et al.
 certiorari to the united states court of ap-
 peals for the second circuit
No. 91-872.   Argued April 20, 1992"Decided June
              19, 1992

The respondents were indicted on a variety of
federal charges, including fraud and racketeer-
ing in connection with the allocation of con-
struction contracts among a so-called ``Club'' of
companies in exchange for a share of the pro-
ceeds.  Witnesses DeMatteis and Bruno, owners
of the Cedar Park Construction Corporation,
testified before the grand jury under a grant
of immunity that neither they nor Cedar Park
had participated in the Club.  At trial, however,
the United States used other evidence to show
that Cedar Park was a Club member.  The respon-
dents subpoenaed DeMatteis and Bruno, but they
invoked their Fifth Amendment privilege against
self-incrimination and refused to testify.  The
District Court denied the respondents' request
to admit the transcripts of DeMatteis' and Bru-
no's grand jury testimony pursuant to Federal
Rule of Evidence 804(b)(1)"which permits admis-
sion of an unavailable declarant's testimony
from a former hearing if the party against whom
it is now offered had a ``similar motive to de-
velop the testimony by direct, cross, or redi-
rect examination''"reasoning that a prosecutor-
's motive in questioning a witness before the
grand jury is different from his motive in con-
ducting the trial.  The respondents were con-
victed, but the Court of Appeals reversed,
holding that the District Court had erred in
excluding the grand jury testimony.  It ruled
that, to maintain ``adversarial fairness,'' Rule
804(b)(1)'s similar motive element should evapo-
rate when the government obtains immunized
testimony in a grand jury proceeding from a
witness who refuses to testify at trial.
Held:
1.Former testimony may not be introduced
under Rule 804(b)(1) without a showing of ``similar
motive.''  Nothing in Rule 804(b)(1) suggests that
a court may admit former testimony absent
satisfaction of each of the Rule's elements.
The respondents err in arguing that the Rule
contains an implicit limitation permitting the
``similar motive'' requirement to be waived in the
interest of adversarial fairness.  Also reject-
ed is the respondents' argument that the United
States forfeited its right to object to the
testimony's admission when it introduced con-
tradictory evidence about Cedar Park.  Here,
the United States never revealed what DeMatt-
eis and Bruno said to the grand jury, but, rath-
er, attempted to show Cedar Park's involvement
using other evidence.  In addition, the respon-
dents mistakenly argue that adversarial fair-
ness prohibits the suppression of exculpatory
evidence produced in grand jury proceedings.
Dennis v. United States, 384 U.S. 855, distin-
guished.  Pp.3-7.
2.This case is remanded for consideration of
whether the United States had a ``similar mo-
tive.''  Since the Court of Appeals erroneously
concluded that the respondents did not have to
demonstrate such a motive, it did not consider
fully the parties' arguments on this issue.
Pp.7-8.
937 F.2d 797 and 952 F.2d 623, reversed and
remanded.

Thomas, J., delivered the opinion of the Court,
in which Rehnquist, C. J., and White, Blackmun,
O'Connor, Scalia, Kennedy, and Souter, JJ.,
joined.  Blackmun, J., filed a concurring opinion.
Stevens, J., filed a dissenting opinion.
 

Opinion
NOTICE: This opinion is subject to formal
revision before publication in the pre-
liminary print of the United States
Reports.  Readers are requested to
notify the Reporter of Decisions, Su-
preme Court of the United States, Wash-
ington, D.C. 20543, of any typographical
or other formal errors, in order that
corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
             No. 91-872
              --------
UNITED STATES, PETITIONER v. ANTHONY SALERNO
                    et al.
  on writ of certiorari to the united states
    court of appeals for the second circuit
                [June 19, 1992]

  Justice Thomas delivered the opinion of the
Court.
  Federal Rule of Evidence 804(b)(1) states an
exception to the hearsay rule that allows a court,
in certain instances, to admit the former testimo-
ny of an unavailable witness.  We must decide in
this case whether the Rule permits a criminal
defendant to introduce the grand jury testimony
of a witness who asserts the Fifth Amendment
privilege at trial.
                       I
  The seven respondents, Anthony Salerno, Vin-
cent DiNapoli, Louis DiNapoli, Nicholas Auletta,
Edward Halloran, Alvin O. Chattin, and Aniello
Migliore, allegedly took part in the activities of
a criminal organization known as the Genovese
Family of La Cosa Nostra (Family) in New York City.
In 1987, a federal grand jury in the Southern
District of New York indicted the respondents and
four others on the basis of these activities.  The
indictment charged the respondents with a variety
of federal offenses, including 41 acts constitut-
ing a  pattern of illegal activity in violation of
the Racketeer Influenced and Corrupt Organiza-
tions Act (RICO), 18 U. S. C. 1962(b).
  Sixteen of the alleged acts involved fraud in the
New York construction industry in the 1980s.
According to the indictment and evidence later
admitted at trial, the Family used its influence
over labor unions and its control over the supply
of concrete to rig bidding on large construction
projects in Manhattan.  The Family purportedly
allocated contracts for these projects among a
so-called  Club of six concrete companies in
exchange for a share of the proceeds.
  Much of the case concerned the affairs of the
Cedar Park Concrete Construction Corporation
(Cedar Park).  Two of the owners of this firm,
Frederick DeMatteis and Pasquale Bruno, testified
before the grand jury under a grant of immunity.
In response to questions by the United States,
they repeatedly stated that neither they nor
Cedar Park had participated in the Club.  At trial,
however, the United States attempted to show
that Cedar Park, in fact, had belonged to the Club
by calling two contractors who had taken part in
the scheme and by presenting intercepted conver-
sations among the respondents.  The United States
also introduced documents indicating that the
Family had an ownership interest in Cedar Park.
  To counter the United States' evidence, the
respondents subpoenaed DeMatteis and Bruno as
witnesses in the hope that they would provide the
same exculpatory testimony that they had pre-
sented to the grand jury.  When both witnesses
invoked their Fifth Amendment privilege against
self-incrimination and refused to testify, the
respondents asked the District Court to admit the
transcripts of their grand jury testimony.
Although this testimony constituted hearsay, see
Rule 801(c), the respondents argued that it fell
within the hearsay exception in Rule 804(b)(1) for
former testimony of unavailable witnesses.
  The District Court refused to admit the grand
jury testimony.  It observed that Rule 804(b)(1)
permits admission of former testimony against a
party at trial only when that party had a  similar
motive to develop the testimony by direct, cross,
or redirect examination.  The District Court held
that the United States did not have this motive,
stating that the  motive of a prosecutor in
questioning a witness before the grand jury in the
investigatory stages of a case is far different
from the motive of a prosecutor in conducting the
trial.  App. to Pet. for Cert. 51a.  A jury subse-
quently convicted the respondents of the RICO
counts and other federal offenses.
  The United States Court of Appeals for the
Second Circuit reversed, holding that the District
Court had erred in excluding DeMatteis and Bruno-
's grand jury testimony.  937 F. 2d 797 (1991).
Although the Court of Appeals recognized that
 the government may have had no motive . . . to
impeach . . . Bruno or DeMatteis before the grand
jury, it concluded that  the government's motive
in examining the witnesses . . . was irrelevant.
Id., at 806.  The Court of Appeals decided that, in
order to maintain  adversarial fairness, Rule
804(b)(1)'s similar motive element should  evapora-
t[e] when the government obtains immunized
testimony in a grand jury proceeding from a
witness who refuses to testify at trial.  Ibid.  We
granted certiorari, 502 U. S. " (1992), and now
reverse and remand.

                      II
  The hearsay rule prohibits admission of certain
statements made by a declarant other than while
testifying at trial.  See Rule 801(c) (hearsay
definition), 802 (hearsay rule).  The parties
acknowledge that the hearsay rule, standing by
itself, would have blocked introduction at trial of
DeMatteis and Bruno's grand jury testimony.  Rule
804(b)(1), however, establishes an exception to the
hearsay rule for former testimony.  This excep-
tion provides:
      The following are not excluded by the hear-
say rule if the declarant is unavailable as a
witness:

   (1) Former Testimony. - Testimony given as
a witness at another hearing . . . if the party
against whom the testimony is now offered . . .
had an opportunity and similar motive to
develop the testimony by direct, cross, or
redirect examination.
We must decide whether the Court of Appeals
properly interpreted Rule 804(b)(1) in this case.
  The parties agree that DeMatteis and Bruno
were  unavailable to the defense as witnesses,
provided that they properly invoked the Fifth
Amendment privilege and refused to testify.  See
Rule 804(a)(1).  They also agree that DeMatteis and
Bruno's grand jury testimony constituted  testi-
mony given as . . . witness[es] at another hearing.
They disagree, however, about whether the  simi-
lar motive requirement in the final clause of
Rule 804(b)(1) should have prevented admission of
the testimony in this case.
                       A
  Nothing in the language of Rule 804(b)(1) sug-
gests that a court may admit former testimony
absent satisfaction of each of the Rule's ele-
ments.  The United States thus asserts that,
unless it had a  similar motive, we must conclude
that the District Court properly excluded DeMatt-
eis and Bruno's testimony as hearsay.  The re-
spondents, in contrast, urge us not to read Rule
804(b)(1) in a  slavishly literal fashion.  Brief for
Respondents at 31.  They contend that  ad-
versarial fairness prevents the United States
from relying on the similar motive requirement in
this case.  We agree with the United States.
  When Congress enacted the prohibition against
admission of hearsay in Rule 802, it placed 24
exceptions in Rule 803 and 5 additional exceptions
in Rule 804.  Congress thus presumably made a
careful judgment as to what hearsay may come into
evidence and what may not.  To respect its deter-
mination, we must enforce the words that it
enacted.  The respondents, as a result, had no
right to introduce DeMatteis and Bruno's former
testimony under Rule 804(b)(1) without showing a
 similar motive.  This Court cannot alter eviden-
tiary rules merely because litigants might prefer
different rules in a particular class of cases.
See Green v. Bock Laundry Machine Co., 490 U. S.
504, 524 (1989).
  The respondents' argument for a different
result takes several forms.  They first assert
that adversarial fairness requires us to infer
that Rule 804(b)(1) contains implicit limitations.
They observe, for example, that the Advisory
Committee Note to Rule 804 makes clear that the
former testimony exception applies only to state-
ments made under oath or affirmation, even though
the Rule does not state this restriction explicit-
ly.  See Advisory Committee's Notes on Fed. Rule
Evid. 804, 28 U. S. C. App., p.288, subd. (b), except.
(1).  The respondents maintain that we likewise may
hold that Rule 804(b)(1) does not require a showing
of similar motive in all instances.
  The respondents' example does not persuade us
to change our reading of Rule 804(b)(1).  If the Rule
applies only to sworn statements, it does so not
because adversarial fairness implies a limitation,
but simply because the word  testimony refers
only to statements made under oath or affirma-
tion.  See Black's Law Dictionary 1476 (6th ed.
1990).  We see no way to interpret the text of Rule
804(b)(1) to mean that defendants sometimes do not
have to show  similar motive.
  The respondents also assert that courts often
depart from the Rules of Evidence to prevent
litigants from presenting only part of the truth.
For example, citing United States v. Miller, 600
F. 2d 498 (CA5 1979), the respondents maintain
that, although parties may enjoy various testimo-
nial privileges, they can forfeit these privileges
by  opening the door to certain subjects.  In the
respondents' view, the United States is attempt-
ing to use the hearsay rule like a privilege to
keep DeMatteis and Bruno's grand jury testimony
away from the jury.  They contend, however, that
adversarial fairness requires us to conclude that
United States forfeited its right to object to
admission of the testimony when it introduced
contradictory evidence about Cedar Park.
  This argument also fails.  Even assuming that we
should treat the hearsay rule like the rules
governing testimonial privileges, we would not
conclude that a forfeiture occurred here.  Par-
ties may forfeit a privilege by exposing privileged
evidence, but do not forfeit one merely by taking
a position that the evidence might contradict.
See 8 J. Wigmore, Evidence 2327, p. 636 (McNaugh-
ton rev. 1961); M. Larkin, Federal Testimonial
Privileges 2.06, pp. 2-103, 2-104, 2-120 (1991).  In
Miller, for example, the court held that a litigant,
 after giving the jury his version of a privileged
communication, [could not] prevent the cross-
examiner from utilizing the communication itself to
get at the truth.  600 F. 2d, at 501 (emphasis
added).  In this case, by contrast, the United
States never presented to the jury any version
of what DeMatteis and Bruno had said in the grand
jury proceedings.  Instead, it attempted to show
Cedar Park's participation in the Club solely
through other evidence available to the respon-
dents.  The United States never exposed the jury
to anything analogous to a  privileged communica-
tion.  The respondents' argument, accordingly,
fails on its own terms.
  The respondents finally argue that adversarial
fairness may prohibit suppression of exculpatory
evidence produced in grand jury proceedings.
They note that, when this Court required disclo-
sure of a grand jury transcript in Dennis v. United
States, 384 U. S. 855 (1966), it stated that  it is
rarely justifiable for the prosecution to have
exclusive access to relevant facts.  Id., at 873.
They allege that the United States nevertheless
uses the following tactics to develop evidence in
a one-sided manner: If a witness inculpates a
defendant during the grand jury proceedings, the
United States immunizes him and calls him at trial;
however, if the witness exculpates the defendant,
as Bruno and DeMatteis each did here, the United
States refuses to immunize him and attempts to
exclude the testimony as hearsay.  The respon-
dents assert that dispensing with the  similar
motive requirement would limit these tactics.
  We again fail to see how we may create an excep-
tion to Rule 804(b)(1).  The Dennis case, unlike this
one, did not involve a question about the admissi-
bility of evidence.  Rather, it concerned only the
need to disclose a transcript to the defendants.
See 384 U. S., at 873.  Moreover, in Dennis, we did
not hold that adversarial fairness required the
United States to make the grand jury transcript
available.  Instead, we ordered disclosure under
the specific language of Federal Rule of Criminal
Procedure 6(e).  See 384 U. S., at 869-870, 872.  In
this case, the language of Rule 804(b)(1) does not
support the respondents.  Indeed, the respondents
specifically ask us to ignore it.  Neither Dennis
nor anything else that the respondents have cited
provides us with this authority.
                       B
  The question remains whether the United States
had a  similar motive in this case.  The United
States asserts that the District Court specifi-
cally found that it did not and that we should not
review its factual determinations.  It also argues
that a prosecutor generally will not have the
same motive to develop testimony in grand jury
proceedings as he does at trial.  A prosecutor, it
explains, must maintain secrecy during the inves-
tigatory stages of the criminal process and
therefore may not desire to confront grand jury
witnesses with contradictory evidence.  It fur-
ther states that a prosecutor may not know, prior
to indictment, which issues will have importance
at trial and accordingly may fail to develop grand
jury testimony effectively.
  The respondents disagree with both of the
United States' arguments.  They characterize the
District Court's ruling as one of law, rather than
fact, because the District Court essentially
ruled that a prosecutor's motives at trial always
differ from his motives in grand jury proceedings.
The respondents contend further that the grand
jury transcripts in this case actually show that
the United States thoroughly attempted to im-
peach DeMatteis and Bruno.  They add that, de-
spite the United States' stated concern about
maintaining secrecy, the United States revealed
to DeMatteis and Bruno the identity of the major
witnesses who testified against them at trial.
  The Court of Appeals, as noted, erroneously
concluded that the respondents did not have to
demonstrate a similar motive in this case to make
use of Rule 804(b)(1).  It therefore declined to
consider fully the arguments now presented by the
parties about whether the United States had such
a motive.  Rather than to address this issue here
in the first instance, we think it prudent to
remand the case for further consideration.  Cf.
Denton v. Hernandez,  504 U. S. "", "" (1992).

It is so ordered.



Concur
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-872
              --------
UNITED STATES, PETITIONER v. ANTHONY SALERNO
                    et al.
  on writ of certiorari to the united states
    court of appeals for the second circuit
                [June 19, 1992]

  Justice Blackmun, concurring.
  I join the Court's opinion with the understanding
that it does not pass upon the weighty concerns,
expressed by Justice Stevens, underlying the
interpretation of Rule 804(b)(1)'s similar-motive
requirement.  The District Court appeared to hold
as a matter of law that  the motive of a prosecu-
tor in questioning a witness before the grand jury
in the investigatory stages of a case is far
different from the motive of a prosecutor in
conducting the trial.  App. to Pet. for Cert. 51a.
Because  similar motive does not mean  identical
motive, the similar-motive inquiry, in my view, is
inherently a factual inquiry, depending in part on
the similarity of the underlying issues and on the
context of the grand jury questioning.  It cannot
be that the prosecution either always or never has
a similar motive for questioning a particular
witness with respect to a particular issue before
the grand jury as at trial.  Moreover, like other
inquiries involving the admission of evidence, the
similar-motive inquiry appropriately reflects
narrow concerns of ensuring the reliability of
evidence admitted at trial"not broad policy
concerns favoring either the Government inthe conduct of
grand jury proceedings or the defendant in overcoming
the refusal of other witnesses to
testify.  Because this case involves factual
issues unusual in complexity and in number and
because neither the District Court nor the Court
of Appeals apparently engaged in the type of
factual inquiry appropriate for resolution of the
similar-motive inquiry, I join the majority in
remanding the case for further consideration.



Dissent
      SUPREME COURT OF THE UNITED STATES--------
             No. 91-872
              --------
UNITED STATES, PETITIONER v. ANTHONY SALERNO
                    et al.
  on writ of certiorari to the united states
    court of appeals for the second circuit
                [June 19, 1992]

  Justice Stevens, dissenting.
  Because I believe that the Government clearly
had an  opportunity and similar motive to devel-
op by direct or cross-examination the grand jury
testimony of Pasquale Bruno and Frederick DeMat-
teis, I would affirm the judgment of the Court of
Appeals on the ground that the transcript of
their grand jury testimony was admissible under
the plain language of Federal Rule of Evidence
804(b)(1).  As the Court explains, ante, at 1-2, the
grand jury testimony of Bruno and DeMatteis was
totally inconsistent with the Government's theory
of the alleged RICO conspiracy to rig bids on large
construction projects in Manhattan.  Bruno and
DeMatteis were principals in Cedar Park Construc-
tion Corporation (Cedar Park), which, according to
the Government, was a member of the so-called
 Club of concrete companies that submitted
rigged bids on construction projects in accor-
dance with the orders of the Genovese Family of
La Cosa Nostra.  But notwithstanding the fact
that they had been given grants of immunity,
Bruno and DeMatteis repeatedly testified before
the grand jury that they had not participated in
either the Club or the alleged bid-rigging con-
spiracy.  As the Court of Appeals explained, Cedar
Park was  one of the largest contractors in the
metropolitan New York City concrete industry,
and it is arguable that without Cedar Park's
participation,  there could be no `club' of con-
crete contractors.  937 F. 2d 797, 808 (CA2 1991).
And without the  Club, the allegations of fraud in
the construction industry"which  formed the core
of the RICO charges" simply dissolv[e].  Ibid.
  It is therefore clear that before the grand jury
the Government had precisely the same interest in
establishing that Bruno and DeMatteis' testimony
was false as it had at trial.  Thus, when the
prosecutors doubted Bruno and Dematteis' veraci-
ty before the grand jury"as they most assuredly
did"they unquestionably had an  opportunity and
similar motive to develop the testimony by direct,
cross, or redirect examination within the meaning
of Rule 804(b)(1).
      The Government disagrees, asserting that it
``typically does not have the same motive to
cross-examine hostile witnesses in the grand jury
that it has to cross-examine them at trial.  Brief
for United States 11.  This is so, the Government
maintains, because (1) cross-examining the witness
might indirectly undermine the secrecy of the
grand jury proceedings, (2) the Government
might decide to discredit the witness through
means other than cross-examination, and (3) the
issues before the grand jury are typically quite
different from those at trial.  See id., at 11-14;
Reply Brief for United States 9-12.  In my view,
the first two reasons"even assuming that they
are true"do not justify holding that the Govern-
ment lacks a  similar motive in the two proceed-
ings.  And although the third reason could justify
the conclusion that the Government's motives are
not  similar, it is not present on the facts of
this case.
    Even if one does not completely agree with
Wigmore's assertion that cross-examination is
 beyond any doubt the greatest legal engine ever
invented for the discovery of truth, one must
admit that in the Anglo-American legal system
cross-examination is the principal means of
undermining the credibility of a witness whose
testimony is false or inaccurate.  For that
reason, a party has a motive to cross-examine any
witness who, in her estimation, is giving false or
inaccurate testimony about a fact that is materi-
al to the legal question at issue in the proceed-
ing.
  Of course, the party might decide"for tactical
reasons or otherwise"not to engage in a rigorous
cross-examination, or even in any cross-examina-
tion at all.  In such a case, however, I do not
believe that it is accurate to say that the party
lacked a similar motive to cross-examine the
witness; instead, it is more accurate to say that
the party had a similar motive to cross-examine
the witness (i.e., to undermine the false or mis-
leading testimony) but chose not to act on that
motive.  Although the Rules of Evidence allow a
party to make that choice about whether to
engage in cross-examination, they also provide
that she must accept the consequences of that
decision"including the possibility that the testi-
mony might be introduced against her in a subse-
quent proceeding.
      Thus neither the fact that the prosecutors
might decline to cross-examine a grand jury
witness whom they fear will talk to the target of
the investigation nor the fact that they might
choose to undermine the witness' credibility other
than through rigorous cross-examination alters
the fact that they had an opportunity and similar
motive to challenge the allegedly false testimony
through questioning before the grand jury.
Although those might be reasons for declining to
take advantage of the opportunity to cross-
examine a witness, neither undermines the princi-
pal motive for engaging in cross-examination, i.e.,
to shake the witness' allegedly false or mislead-
ing testimony.  Indeed, other courts have found
the  opportunity and similar motive requirement
of Rule 804(b)(1) satisfied"and hence the prior
testimony admissible in a subsequent trial"in
many similar situations.
   That leaves the Government's third reason, its
contention that it lacks a similar motive to
question grand jury witnesses because the issues
before the grand jury may not be the same issues
that are important at trial.  If that were true in
a particular case, I would agree that the Govern-
ment lacked a similar motive for developing the
witness' grand jury testimony.  Because the scope
of questioning is necessarily limited by the scope
of the legal and factual issues in a given pro-
ceeding, a party has little motive, and indeed may
not be permitted, to ask questions about other
issues.  Thus if those other issues become impor-
tant in a subsequent proceeding, the testimony
from the prior proceeding may properly be exclud-
ed on the ground that the party against whom it is
offered lacked a similar motive for developing the
testimony at the prior proceeding.
  That did not occur in this case, however.  After
reviewing the sealed transcripts of Bruno and
DeMatteis' grand jury testimony, the Court of
Appeals concluded that  [v]ery generally stated,
their grand jury testimony denied any awareness
of, let alone participation in, the  Club of
concrete contractors, the existence of which was
crucial to the RICO counts dealing with fraud in
the construction industry.  937 F. 2d, at 808.
Moreover, the transcripts reveal that the prose-
cutors did challenge some of the witnesses'
denials of knowledge of criminal activity by
questioning which included probing the basis of
their statements and confronting them with
contrary statements from other people.
  I am therefore satisfied that the Government
had an  opportunity and similar motive to devel-
op the grand jury testimony of witnesses Bruno
and DeMatteis; consequently, the transcript of
that testimony was admissible against the Gov-
ernment at respondents' trial under Rule 804(b)(1).
For that reason, I would affirm the judgment of
the Court of Appeals.
