Cite as: 504 U. S. 36 (1992)
Opinion of the Court
appellate jurisdiction; it is therefore entirely proper in light of our precedents for the Court to reach the question on which it granted certiorari . . . ." Springfield v. Kibbe, 480 U. S. 257, 266 (1987) (dissenting opinion) (emphasis in original; citations omitted).3
There is no doubt in the present case that the Tenth Circuit decided the crucial issue of the prosecutor's duty to present exculpatory evidence.4 Moreover, this is not, as the dissent paints it, a case in which, "[a]fter losing in the Court of Appeals, the Government reversed its position," post, at 57.
3 The Court's per curiam dismissal of the writ in Kibbe was based principally upon two considerations: (1) that the crucial issue was not raised in the District Court because of failure to object to a jury instruction, thus invoking Rule 51 of the Federal Rules of Civil Procedure, which provides that "[n]o party may assign as error the giving . . . [of] an instruction unless he objects thereto before the jury retires to consider its verdict," and (2) that the crucial issue had in addition not explicitly been raised in the petition for certiorari. 480 U. S., at 259, 260. Of course, neither circumstance exists here.
4 Relying upon, and to some extent repeating, the reasoning of its earlier holding in United States v. Page, 808 F. 2d 723 (1981), the Court of Appeals said the following:
"We have previously held that a prosecutor has the duty to present substantial exculpatory evidence to the grand jury. Although we do not require the prosecutor to 'ferret out and present every bit of potentially exculpatory evidence,' we do require that substantial exculpatory evidence discovered during the course of an investigation be revealed to the grand jury. Other courts have also recognized that such a duty exists. This requirement promotes judicial economy because 'if a fully informed grand jury cannot find probable cause to indict, there is little chance the prosecution could have proved guilt beyond a reasonable doubt to a fully informed petit jury.' " 899 F. 2d 898, 900 (1990) (citations omitted).
This excerpt from the opinion below should make abundantly clear that, contrary to the dissent's mystifying assertion, see post, at 58, and n. 3, we premise our grant of certiorari not upon the Tenth Circuit's having "passed on" the issue in its prior Page decision, but rather upon its having done so in this case. We discuss Page only to point out that, had the Government not disputed the creation of the binding Tenth Circuit precedent in that case, a different exercise of discretion might be appropriate.
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