Cite as: 505 U. S. 317 (1992)
Stevens, J., dissenting
cross-examine any witness who, in her estimation, is giving false or inaccurate testimony about a fact that is material to the legal question at issue in the proceeding.
Of course, the party might decide—for tactical reasons or otherwise—not to engage in a rigorous cross-examination, or even in any cross-examination at all.5 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 misleading 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 testimony might be introduced against her in a subsequent proceeding.6
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
5 For example, the party might not want to run the risk of appearing to harass or upset a vulnerable witness—such as a young child or the victim of a terrible crime—with rigorous cross-examination if there are other, less confrontational means of undermining the suspect testimony.
6 As the Advisory Committee explained, the question whether prior testimony should be admitted is, in essence, the question "whether fairness allows imposing, upon the party against whom now offered, the handling of a witness on the earlier occasion." Id., at 788. When, as in this case, the testimony is offered against the party by whom it was previously offered, the party obviously did not have an opportunity to develop the testimony through cross-examination. But, the Advisory Committee recognized, the opportunity to engage in "direct and redirect examination of one's own witness [is] the equivalent of cross-examining an opponent's witness." Id., at 789. In either case, as long as the party had a similar motive to develop the testimony in the prior proceeding, there is no unfairness in requiring the party against whom the testimony is now offered to accept her prior decision to develop or not develop the testimony fully. Ibid.
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