326
Stevens, J., dissenting
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 in the 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.
Justice Stevens, dissenting.
Because I believe that the Government clearly had an "opportunity and similar motive" to develop by direct or cross-examination the grand jury testimony of Pasquale Bruno and Frederick DeMatteis, 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 319, 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 Construction Corporation
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