dissenting in part.1
I respectfully dissent from the majority’s conclusion that the trial court did not err in excluding a witness’s examined and sworn testimony during a prior plea hearing even though that testimony exculpated appellant and both parties agreed that the witness was unavailable to testify for the defense at trial.2 The majority reaches this conclusion on the basis that the “same issues” were not present at the plea hearing as at the trial, and therefore the prosecutor did not have the same motive or, indeed, even an opportunity, to cross-examine the witness at the plea hearing as she would have at trial.
In this case, Smith, the unavailable witness, had an offer to plead to attempted possession of cocaine, a notch down from the charge of possession of cocaine, but the government’s acceptance of the plea was conditioned on Smith’s providing an “insulating statement” that Dudley had sold her the cocaine. Although such a statement would not be admissible in the government’s case in chief in its subsequent prosecution of Dudley, the “insulating statement” is valuable to the government because it in effect would have prevented Smith from changing her story and being a credible witness for the defense at Dudley’s trial. If Smith were to testify to Dudley’s innocence during his trial, she could be impeached with her prior inconsistent statement at the plea hearing. See D.C.Code § 14-102 (1995 Repl.). Smith did not provide the anticipated insulating statement inculpating Dudley, but, instead, testified under oath to Dudley’s innocence. Both parties agree that Smith was not available to testify at Dudley’s trial. The question before us is *870whether, in light of Smith’s unavailability, Smith’s prior testimony at the plea hearing is admissible in order to present Dudley’s defense at trial.
The answer to that question is reached by means of a case-by-case inquiry, and is not to be undertaken based on abstractions on the nature of the prior proceeding. As the Supreme Court has cautioned, “where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Feaster v. United States, 631 A.2d 400, 405-06 (D.C.1993), we adopted a fact-specific, case-by-case inquiry to determine whether a prior proceeding provided a sufficient opportunity to cross-examine to come within the prior-recorded testimony hearsay exception. After reviewing the “naturfe of the prosecutor’s questions,” the court concluded that “the questioning [before the grand jury] was directed at the ultimate issue of appellant’s guilt.” Id. at 406. Explaining that there is no requirement that there be an “adversarial, inquiring, searching, and explicative approach” in the prior proceeding, Feaster expressly rejected the notion that the non-adversarial character of Smith’s plea proceeding precludes admission of Smith’s testimony during her plea hearing at Dudley’s later trial. See id.
Because our case-by-case approach focuses on the actual questioning at the prior proceeding to determine whether it in fact afforded a sufficient opportunity to cross-examine the witness,3 it is therefore largely irrelevant that, as a general proposition, a prosecutor should not continue questioning á person in the course of that person’s plea hearing concerning another’s guilt once the person has refused to utter the insulating statement that the prosecutor requires as a condition of the plea. See Alston v. United-States, 383 A.2d 307, 312 & n. 9 (D.C.1978). The relevant question is whether the prosecutor in this case exercised such restraint. She did not. Moreover, at no point during the prosecutor’s questions did the trial court intervene to curtail examination during the plea hearing.4 Therefore, this case is unlike Bedney v. United States, 684 A.2d 759, 765 (D.C.1996), where the government was precluded from questioning by the witness’s Fifth Amendment privilege. Here, there was no Fifth Amendment privilege concern as Smith had already admitted to her possession of cocaine well before the prosecutor began to question her about Dudley. From that point on, the prosecutor’s sole concern was to pin down Dudley’s guilt in an insulating statement. The transcript shows without a doubt that the prosecutor tried to obtain that insulating statement by repeatedly asking Smith whether Dudley sold her cocaine. It was only when, after repeated questioning, that testimony was not forthcoming that the government withdrew .its plea offer, notwithstanding the fact that Smith already had admitted to committing the offense to which she was pleading guilty — the ostensible purpose of the plea hearing.5
*871Although the majority agrees that a fact-specific, case-by-case approach is required, it fails in that task. The majority concludes that “the purpose of Smith’s plea proceeding made such cross-examination pointless, if not improper; hence it did not occur.” Ante at 868. As noted, the “purpose” of the plea proceeding is not dispositive; we must look at what actually took place. The majority also states that “[a]t almost exactly the place where true cross would have begun (using, to take but one example, prior inconsistent statements) the prosecutor ceased questioning and effectively ended the proceeding.” Ante at 868. There is no support in the record for that conclusion; the government did not proffer that it had any prior inconsistent statements that it could have used to impeach Smith even if she had been available to testify at trial. Even if such prior inconsistent statements had existed, a balancing of the defendant’s right to due process and the government’s interest in perfecting its presentation to the jury would counsel that the appropriate resolution would be to allow the government to introduce the prior inconsistent statement in response to the defense’s introduction of the plea testimony at trial, rather than outright exclusion of Smith’s plea testimony. Chambers’ admonition against mechanistic application of the hearsay rule should also apply to the government’s interest in the truth-seeking function of trial.
The fact of the matter is that, contrary to the majority’s assertions that the government’s questioning of Smith was “very limited” and ended when Smith testified contrary to the prosecutor’s expectation, see ante at 867, a review of the record in this case reveals that the prosecutor did not cease to question Smith about Dudley’s guilt even after the witness did not deliver the hoped-for insulating statement.6 After having been *872asked whether Dudley had sold her cocaine, Smith denied it. The prosecutor’s examination continued, and in a narrative statement Smith described how a third person, Sean Friedman, had given her the cocaine. After Smith initially exculpated Dudley and implicated Friedman during her narration of the cocaine transaction, the prosecutor twice again asked Smith point-blank whether she had received drugs from Dudley. Therefore, there are three denials by Smith — not two as the majority states — that Dudley sold her cocaine in the transcript of the plea hearing, as well as a statement that another individual was guilty of the drug distribution offense. It was only after Smith exculpated Dudley for the fourth time that the prosecutor indicated that the government was not “prepared to accept this insulating statement” and ceased questioning Smith. The government has not proffered how the prosecutor would have further cross-examined Smith at the plea hearing had it been known at the time that her testimony would be admitted at Dudley’s trial. I therefore conclude that based on the record, the prosecutor had a sufficient opportunity to cross-examine Smith, and in fact did sufficiently cross-examine her, so that Dudley should have been permitted to introduce the statements of the subsequently unavailable Smith in presenting his defense at trial.
Having considered the government’s opportunity to cross-examine Smith, I turn to the importance to Dudley’s defense of Smith’s statements exculpating Dudley and inculpating a third party, see Winfield v. United States, 676 A.2d 1, 5 (D.C.1996) (en bane), and the prejudice resulting to Dudley from their exclusion at his trial. This was not a strong government ease. Indeed, the government’s evidence against Dudley was sketchy. Two officers observed the transaction between Smith and Dudley under less than ideal circumstances: the location was dark, the officers’ observation post was more than forty yards away and ten to eleven stories above where Dudley met Smith, and the view of both officers was impeded by a tree. No one officer observed the entire transaction; the testimony of the two officers, who were in radio contact during their observations, provided a patchwork of what happened. There was no physical evidence tying Dudley to the offense. Thus, in the context of a problematic government case, Smith’s exculpatory statements could well have tipped the balance in Dudley’s favor.
On the other hand, there would have been no undue prejudice to the government had Smith’s exculpating statements been admitted as the government would have had an opportunity to impeach the statements even if Smith was absent at Dudley’s trial. Certainly, the fact that the statements were made in the course of a plea hearing during which Smith admitted to possession of cocaine would have been admissible. Similarly, Smith’s statements that she was friendly with Dudley, and that their children played together, could have been introduced to show bias. And, as mentioned above, had the government had any prior inconsistent statements impeaching Smith’s plea hearing, these could have been introduced at trial so that the jury could better assess Smith’s testimony during the plea hearing. Therefore, the government would not have been significantly disadvantaged by the admission at trial of Smith’s prior statements.
Dudley “was denied his constitutional right to a fair trial when the trial court refused to allow him to present relevant, facially exonerating, and admissible prior recorded testimony to the jury — testimony which constituted his only defense.” Alston, supra, 383 A.2d at 315. Under the circumstances, I would reverse because there is a reasonable doubt that the verdict might have been different if Smith’s exculpatory statements had been admitted. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. I join the majority’s opinion that because there were no corroborating circumstances the trial court's exclusion of statements purported to be against penal interest was not clearly erroneous.
. Because I conclude that Smith's prior testimony was admissible under the prior recorded testimony exception to the hearsay rule, I further conclude that the trial court also impermissibly excluded the testimony on the alternative ground that it was not credible, thereby usurping the jury’s function. See Johns v. United States, 434 A.2d 463, 473 (D.C.1981).
.Thus, our fact-specific approach may not fit comfortably with the federal "same motive” test found in Fed.R.Evid. 804(b)(1) cited by the majority. Moreover, neither Hill v. United States, 664 A.2d 347 (D.C.1995), cert. denied, 516 U.S. 1065, 116 S.Ct. 749, 133 L.Ed.2d 697 (1996), nor Epstein v. United States, 359 A.2d 274 (D.C. 1976), also cited by the majority, support our adoption of a "similar motive” test to determine whether the prosecution’s examination at the plea hearing sufficed to make the testimony admissible at trial for purposes of the prior recorded testimony exception to the hearsay rule. Epstein looked at the content of the prior questioning, the veracity of a police officer, to determine whether it was in fact so limited as to have been substantively different from the issue in the subsequent proceeding, the validity of a search warrant. Id. at 278. Hill concerned the use of a prior consistent statement to rehabilitate a witness who was available to testify at trial, and there had been no questions previously asked of the witness that bore directly on the matter that became an issue at a later suppression hearing. 664 A.2d at 351.
. To the contraiy, when Smith first denied that Dudley had sold her drugs, she asked the court, "if it's okay, Your Honor, I can tell what happened." The trial judge replied, "Yes.” Smith then proceeded to give a narrative of the incident which exculpated Dudley and inculpated a third person. See note 6 infra.
. Indeed, Smith admitted to actual possession of cocaine, not only attempted possession, during the plea hearing.
. The entire transcript of Smith’s questioning concerning Dudley follows:
Q Ma'am, I’d like to direct your attention to the events of August 15th of 1993 and specifically to the time period of approximately 12:10 to 12:20 [a.m.] Do you recall the events of that day and that time?
A Yes ma'am.
Q Now, on that day and at that time were you driving a brown Dodge?
A Yes ma'am.
Q And did that brown Dodge have D.C. tags?
A Yes ma'am.
Q And did you enter the area of 4660 Martin Luther King Avenue in the southwest quadrant?
A Yes. Galveston Street, S.W.? Yes ma'am.
Q And were you driving the brown Dodge at that time?
A Yes ma'am.
Q Now, did you park your car near 97 Galveston Street?
A Yes ma'am.
Q Now when you parked your car, did you get out of your car and then walk toward an iron fence?
A Yes ma'am.
Q Now, when you walked toward the iron fence, did you meet up with a man who you knew as Mr. Dudley or Mr. Robinson?
A Yes, as a friend yes. I walked, yes ma'am, I walked to the fence—
Q And how did you know that man. By what name?
A Michael, 'cause his daughter plays with my son.
Q And is that Michael Dudley?
A Yes ma'am.
Q Now when you approached Mr. Dudley did you buy from him?
A No ma'am.
Q What did you do with regard to Mr. Dudley?
A Okay, if its okay, Your Honor, I can tell what happened.
THE COURT: Yes. []
A Okay. I went to Mr. Dudley to the fence, which I had Mr. Sean Friedman was in my car. He had already had the cocaine on him and he wanted to get change because the drugs that he’d bought before was not his. He needed change, so he asked me would I get out of my car and go to the fence instead of going all the way around and ask Mr. Dudley for change. At which I went to the fence and asked Mr. Dudley for change for a $10 bill which he did not have a $10 bill on him. So he walked across the street, he yelled across the street first, and asked did anybody have any change. They said yeah. He went across the street and got change and handed me two $5 bills through the fence. Once I got in the car Sean Dudley gave me the cocaine—
Q Sean Dudley or Friedman?
A Sean Friedman gave me the cocaine for taking him up the street to get the change. He gave me something for it. When I left there, that’s when the police pulled me over 100 feet from where I was.
Q And is it your testimony today that you never received drugs from Mr. Dudley?
A No I did not, ma'am.
Q Your Honor, we’re not prepared to accept this insulating statement.
THE COURT: Okay, well does she wish to go straight with the, as far as the indictment is *872concerned, Mr. Christian, that’s why, Government, you have to remind me about the insulating statement. Don’t tell me after the plea is completed.
MR. CHRISTIAN: I’m sorry, Your Honor.
THE COURT: The Government has indicated that it is not satisfied with the insulating statement noting that Ms. Smith is under oath.