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NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
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No. 91-872
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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 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 Genovese Family of La Cosa Nostra (Family) in New
York City.  In 1987, a federal grand jury in the Southern
District of New York indicted the respondents and four
others on the basis of these activities.  The indictment
charged the respondents with a variety of federal offenses,
including 41 acts constituting a -pattern of illegal activity-
in violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U. S. C. 1962(b).
  Sixteen of the alleged acts involved fraud in the New
York construction industry in the 1980s.  According to the
indictment and evidence later admitted at trial, the Family
used its influence over labor unions and its control over the
supply of concrete to rig bidding on large construction
projects in Manhattan.  The Family purportedly allocated
contracts for these projects among a so-called -Club- of six
concrete companies in exchange for a share of the proceeds.
  Much of the case concerned the affairs of the Cedar Park
Concrete Construction Corporation (Cedar Park).  Two of
the owners of this firm, Frederick DeMatteis and Pasquale
Bruno, testified before the grand jury under a grant of
immunity.  In response to questions by the United States,
they repeatedly stated that neither they nor Cedar Park
had participated in the Club.  At trial, however, the United
States attempted to show that Cedar Park, in fact, had
belonged to the Club by calling two contractors who had
taken part in the scheme and by presenting intercepted
conversations among the respondents.  The United States
also introduced documents indicating that the Family had
an ownership interest in Cedar Park.
  To counter the United States' evidence, the respondents
subpoenaed DeMatteis and Bruno as witnesses in the hope
that they would provide the same exculpatory testimony
that they had presented to the grand jury.  When both
witnesses invoked their Fifth Amendment privilege against
self-incrimination and refused to testify, the respondents
asked the District Court to admit the transcripts of their
grand jury testimony.  Although this testimony constituted
hearsay, see Rule 801(c), the respondents argued that it fell
within the hearsay exception in Rule 804(b)(1) for former
testimony of unavailable witnesses.
  The District Court refused to admit the grand jury
testimony.  It observed that Rule 804(b)(1) permits admis-
sion of former testimony against a party at trial only when
that party had a -similar motive to develop the testimony
by direct, cross, or redirect examination.-  The District
Court held that the United States did not have this motive,
stating 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.  A jury
subsequently convicted the respondents of the RICO counts
and other federal offenses.
  The United States Court of Appeals for the Second
Circuit reversed, holding that the District Court had erred
in excluding DeMatteis and Bruno's grand jury testimony.
937 F. 2d 797 (1991).  Although the Court of Appeals
recognized that -the government may have had no motive
. . . to impeach . . . Bruno or DeMatteis- before the grand
jury, it concluded that -the government's motive in examin-
ing the witnesses . . . was irrelevant.-  Id., at 806.  The
Court of Appeals decided that, in order to maintain -ad-
versarial fairness,- Rule 804(b)(1)'s similar motive element
should -evaporat[e]- when the government obtains immu-
nized testimony in a grand jury proceeding from a witness
who refuses to testify at trial.  Ibid.  We granted certiorari,
502 U. S. - (1992), and now reverse and remand.

                           II
  The hearsay rule prohibits admission of certain state-
ments made by a declarant other than while testifying at
trial.  See Rule 801(c) (hearsay definition), 802 (hearsay
rule).  The parties acknowledge that the hearsay rule,
standing by itself, would have blocked introduction at trial
of DeMatteis and Bruno's grand jury testimony.  Rule
804(b)(1), however, establishes an exception to the hearsay
rule for former testimony.  This exception provides:
      -The following are not excluded by the hearsay rule
if the declarant is unavailable as a witness:

      -(1) Former Testimony. - Testimony given as a
witness at another hearing . . . if the party against
whom the testimony is now offered . . . had an opportu-
nity and similar motive to develop the testimony by
direct, cross, or redirect examination.-
We must decide whether the Court of Appeals properly
interpreted Rule 804(b)(1) in this case.
  The parties agree that DeMatteis and Bruno were
-unavailable- to the defense as witnesses, provided that
they properly invoked the Fifth Amendment privilege and
refused to testify.  See Rule 804(a)(1).  They also agree that
DeMatteis and Bruno's grand jury testimony constituted
-testimony given as . . . witness[es] at another hearing.-
They disagree, however, about whether the -similar motive-
requirement in the final clause of Rule 804(b)(1) should
have prevented admission of the testimony in this case.
                            A
  Nothing in the language of Rule 804(b)(1) suggests that
a court may admit former testimony absent satisfaction of
each of the Rule's elements.  The United States thus asserts
that, unless it had a -similar motive,- we must conclude
that the District Court properly excluded DeMatteis and
Bruno's testimony as hearsay.  The respondents, in con-
trast, urge us not to read Rule 804(b)(1) in a -slavishly
literal fashion.-  Brief for Respondents at 31.  They contend
that -adversarial fairness- prevents the United States from
relying on the similar motive requirement in this case.  We
agree with the United States.
  When Congress enacted the prohibition against admission
of hearsay in Rule 802, it placed 24 exceptions in Rule 803
and 5 additional exceptions in Rule 804.  Congress thus
presumably made a careful judgment as to what hearsay
may come into evidence and what may not.  To respect its
determination, we must enforce the words that it enacted.
The respondents, as a result, had no right to introduce
DeMatteis and Bruno's former testimony under Rule
804(b)(1) without showing a -similar motive.-  This Court
cannot alter evidentiary rules merely because litigants
might prefer different rules in a particular class of cases.
See Green v. Bock Laundry Machine Co., 490 U. S. 504, 524
(1989).
  The respondents' argument for a different result takes
several forms.  They first assert that adversarial fairness
requires us to infer that Rule 804(b)(1) contains implicit
limitations.  They observe, for example, that the Advisory
Committee Note to Rule 804 makes clear that the former
testimony exception applies only to statements made under
oath or affirmation, even though the Rule does not state
this restriction explicitly.  See Advisory Committee's Notes
on Fed. Rule Evid. 804, 28 U. S. C. App., p.288, subd. (b),
except. (1).  The respondents maintain that we likewise
may hold that Rule 804(b)(1) does not require a showing of
similar motive in all instances.
  The respondents' example does not persuade us to change
our reading of Rule 804(b)(1).  If the Rule applies only to
sworn statements, it does so not because adversarial
fairness implies a limitation, but simply because the word
-testimony- refers only to statements made under oath or
affirmation.  See Black's Law Dictionary 1476 (6th ed.
1990).  We see no way to interpret the text of Rule 804(b)(1)
to mean that defendants sometimes do not have to show
-similar motive.-
  The respondents also assert that courts often depart from
the Rules of Evidence to prevent litigants from presenting
only part of the truth.  For example, citing United States v.
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 testimo-
ny away from the jury.  They contend, however, that
adversarial fairness requires us to conclude that 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 DeMatteis 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 relevant facts.  Id., at 873.  They allege that the
United States nevertheless uses the following tactics to
develop evidence in a one-sided manner: If a witness
inculpates a defendant during the grand jury proceedings,
the United States immunizes him and calls him at trial;
however, if the witness exculpates the defendant, as Bruno
and DeMatteis each did here, the United States refuses to
immunize him and attempts to exclude the testimony as
hearsay.  The respondents assert that dispensing with the
-similar motive- requirement would limit these tactics.
  We again fail to see how we may create an exception to
Rule 804(b)(1).  The Dennis case, unlike this one, did not
involve a question about the admissibility of evidence.
Rather, it concerned only the need to disclose a transcript
to the defendants.  See 384 U. S., at 873.  Moreover, in
Dennis, we did not hold that adversarial fairness required
the United States to make the grand jury transcript
available.  Instead, we ordered disclosure under the specific
language of Federal Rule of Criminal Procedure 6(e).  See
384 U. S., at 869-870, 872.  In this case, the language of
Rule 804(b)(1) does not support the respondents.  Indeed,
the respondents specifically ask us to ignore it.  Neither
Dennis nor anything else that the respondents have cited
provides us with this authority.
                            B
  The question remains whether the United States had a
-similar motive- in this case.  The United States asserts
that the District Court specifically found that it did not and
that we should not review its factual determinations.  It
also argues that a prosecutor generally will not have the
same motive to develop testimony in grand jury proceedings
as he does at trial.  A prosecutor, it explains, must main-
tain secrecy during the investigatory stages of the criminal
process and therefore may not desire to confront grand jury
witnesses with contradictory evidence.  It further states
that a prosecutor may not know, prior to indictment, which
issues will have importance at trial and accordingly may
fail to develop grand jury testimony effectively.
  The respondents disagree with both of the United States'
arguments.  They characterize the District Court's ruling as
one of law, rather than fact, because the District Court
essentially ruled that a prosecutor's motives at trial always
differ from his motives in grand jury proceedings.  The
respondents contend further that the grand jury transcripts
in this case actually show that the United States thorough-
ly attempted to impeach DeMatteis and Bruno.  They add
that, despite the United States' stated concern about
maintaining secrecy, the United States revealed to
DeMatteis and Bruno the identity of the major witnesses
who testified against them at trial.
  The Court of Appeals, as noted, erroneously concluded
that the respondents did not have to demonstrate a similar
motive in this case to make use of Rule 804(b)(1).  It
therefore declined to consider fully the arguments now
presented by the parties about whether the United States
had such a motive.  Rather than to address this issue here
in the first instance, we think it prudent to remand the case
for further consideration.  Cf. Denton v. Hernandez,  504
U. S. --, -- (1992).
                                      It is so ordered.