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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-872
- --------
- UNITED STATES, PETITIONER v. ANTHONY
- SALERNO et al.
- on writ of certiorari to the united states court of
- appeals for the second circuit
- [June 19, 1992]
-
- Justice Blackmun, concurring.
- I join the Court's opinion with the understanding that it
- does not pass upon the weighty concerns, expressed by
- Justice Stevens, underlying the interpretation of Rule
- 804(b)(1)'s similar-motive requirement. The District Court
- appeared to hold as a matter of law that -the motive of a
- prosecutor in questioning a witness before 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.
-