318
Opinion of the Court
addition, the respondents mistakenly argue that adversarial fairness prohibits the suppression of exculpatory evidence produced in grand jury proceedings. Dennis v. United States, 384 U. S. 855, distinguished. Pp. 320-324. 2. This case is remanded for consideration of whether the United States had a "similar motive." 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. 324-325. 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, post, p. 325. Stevens, J., filed a dissenting opinion, post, p. 326.
James A. Feldman argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Bryson.
Michael E. Tigar argued the cause for respondents. With him on the brief was Gustave H. Newman.*
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 testimony 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, Vincent 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
*Jed S. Rakoff filed a brief for the New York Council of Defense Lawyers as amicus curiae urging affirmance.
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