Cite as: 505 U. S. 317 (1992)
Opinion of the Court
Miller, 600 F. 2d 498 (CA5 1979), the respondents maintain that, although parties may enjoy various testimonial privileges, they can forfeit these privileges by "opening the door" to certain subjects. In the respondents' view, the United States is attempting 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 the 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. Parties 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 (McNaughton 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 De-Matteis 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 respondents. The United States never exposed the jury to anything analogous to a "privileged communication." 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 disclosure 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
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