dissenting:
I respectfully dissent.
I
Initially, I believe that the majority errs in its estimation of the reliability of testimony taken before a grand jury and therefore not subject to cross-examination. In a recent opinion of this court, N.L.R.B. v. McClure Associates, Inc., 556 F.2d 725 (1977), we held that the affidavit of an individual who had no interest in the outcome of the proceedings, and was not an employee of the company, obtained by an agent of the National Labor Relations *1139Board in the ordinary course of his investigation of an unfair labor practice charge, and offered against the Board by the company in its defense to the charge, did not have such equivalent circumstantial guarantees of trustworthiness as to allow its admission.1 Accordingly, I do not agree that the guarantees .of trustworthiness surrounding the grand jury testimony in this case are any greater and should not be held sufficient to allow its introduction into evidence under the residual exception to the hearsay rule. Certainly the rule of exclusion should be at least as broad in criminal as in civil proceedings.
II
I raise again the objections I voiced in the dissent in United States v. Payne, 492 F.2d 449 (4th Cir. 1974). Here, as in that decision, the majority has confused the issues of the admissibility of hearsay and the right of a criminal defendant to be confronted by his accusers. While the two different rules of law may “stem from the same roots,” they are by no means identical, but are closely akin.2 Dutton v. Evans, 400 U.S. 74, at p. 86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).
The majority’s treatment of the confrontation clause again, as in Payne, reduces the constitutional provision to the status of a mere rule of evidence when, in fact, the clause was intended to regulate the procedure of a criminal trial by compelling the presence of the accuser before the jury and the defendant. The court concludes that because the grand jury testimony is reliable, the confrontation clause is not violated; that because the circumstances surrounding the testimony, including the corroboration of Brown’s assertions by the federal agents, indicate that Brown may well have been truthful, the jury could assess his veracity in his absence. At root, then, of the majority’s analysis is its conclusion that Brown indeed spoke the truth, that his testimony was reliable, being corroborated, and that, the jury having been presented with sufficient indications of Brown’s sincerity, the defendant’s right of confrontation was not abridged.
This analysis is, however, misplaced.3 While it has been said “the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement,’ California v. Greene,” Dutton v. Evans, 400 U.S. at p. 89, 91 S.Ct. at p. 220, the whole question is not, as the majority treats it, whether the testimony is in fact truthful; rather, the issue is whether there has been such “adequate ‘confrontation’ ” as to satisfy the requirements of the Constitution’s Sixth Amendment. Dut-ton, 400 U.S. at p. 97, 91 S.Ct. 210 (Harlan, J., concurring). Hence, we should not be lured by the possible reliability of out-of-court statements, important as that is in the consideration of the problem as a rule of evidence, away from the ultimate constitutional prescription, which is the regulation of trial procedure.
The majority opinion proves too much. With all its analysis of the surrounding indicia of the reliability of Brown’s grand jury testimony, one conclusion is compelled: the introduction of the testimony was far from being harmless error.
The government, indeed, succeeded in presenting to the jury evidence full of danger to the accused, without incurring the *1140risk of either a personal view of the declar-ant by the jury or a face-to-face encounter between the accuser and the accused before the jury, the ultimate arbiter in the contest of truth between the two. Instead, the jury merely heard read the testimony given in the proceedings of the grand jury, written on paper with that additional indicia of verity, and persuasive in its solemnity. In my opinion, this procedure cannot be described other than as trial by affidavit, the very practice against which the confrontation clause was designed to protect. “The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895) (emphasis added).
Hence, the confrontation clause invokes a means of trial procedure which provides a minimal, or threshold, level of protection to the defendant. It expresses our constitutional condemnation of trial by affidavit and the concomitant conclusion that the accuser should appear, personaliter, in order that the jury might observe his demeanor and appearance in the crucible of courtroom confrontation. Historically, the rule required the presence of the accuser; later, the accused was extended, since the declar-ant was there, the right to cross-examine. Now, the constitutional requisites include both “the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Barber v. Page, 390 U.S. 719, at p. 725, 88 S.Ct. 1318, at p. 1322, 20 L.Ed.2d 255 (1968). Thus, the essence of the confrontation clause is the judgment that, as a procedural requirement, the defendant is entitled, at the very least, to the presence of his accuser before him and the jury. In the absence of circumstances accepted by the Supreme Court as meeting the clause’s requirements, I believe that the confrontation clause prescribes, at a minimum, the presence of the witness who would testify against the defendant.
I might have less objection had the majority taken a recognized exception, such as found in Mattox, and extended its reasoning to this case. The Mattox decision, which allows the use of a transcript of testimony from a former trial when the witness has since died, is firmly rooted in the ancient British statutes which form the historical foundation of the confrontation clause, such statutes making exception for the case of a dead witness.4 Appreciating these historical roots, this court might have declared that the murder of a witness, whether his death be at the hands of the defendant or not, as here, allows the transcript of former grand jury testimony to be used in evidence. While such a rule might burden the defendant with the risk of the witness’ safety, it at least would be true to the meaning and history of the constitutional provision.
*1141However, the majority has not chosen to follow that alternative and, instead, I think mistakenly, equates the Constitution’s regulation of procedure with the rules of evidence. And it fails to answer the most important question: did the defendant have an opportunity to confront Brown? Accordingly, the opinion dismisses, in a footnote, the defendant’s reliance on United States v. Fiore, 443 F.2d 112 (2d Cir. 1971), because that opinion was decided before the adoption of the Federal Rules of Evidence and Rule 804(b)(5). But Fiore rejected the admission of grand jury testimony on alternative grounds: because it was hearsay and because its admission would violate the confrontation clause. 443 F.2d at p. 115. It is at once apparent the reasoning of the majority on that point is facially self defeating, for, while Congress may alter the law of hearsay, it may not change the confrontation clause. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (Feb. Term 1803). Hence, on the constitutional issue, Fiore, by Judge Friendly, is still good law, and we find ourselves in conflict with the Second Circuit.
I see the use of Brown’s grand jury testimony to be no more than the disreputable trial by affidavit, the very cause of the confrontation clause. Even assuming the murder of a witness might excuse the use of a transcript of his grand jury testimony, I would not go so far, for his accidental or otherwise natural death would compel the same result if the reasoning here is adopted. Grand jury proceedings are ex parte, with no right of cross-examination. The object of the proceedings is to gain an indictment upon a showing of probable cause; thus, there is not a full blown investigation into the truth, but, like a preliminary hearing, is “ordinarily a much less searching exploration into the merits of the case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.” Barber v. Page, 390 U.S. at p. 725, 88 S.Ct. at p. 1322. Finally, we must recognize that a witness will often make accusations behind the back of the accused which he will not repeat to his face.
For these reasons, I would hold that the admission of the grand jury testimony violated the defendant’s right to confront his accuser. Even assuming the murder of the witness might excuse the use of the transcript of his grand jury testimony, I would yet reserve that question for the time when the Supreme Court, in its efforts to equate the constitutional requirements of the confrontation clause with the rules of evidence, might squarely address that issue.
. The opinion refers to the consideration of admission under Federal Rule of Evidence 803(24) which is identical in text to 804(b)(5) upon which rests the majority’s decision to allow the admission of the hearsay grand jury testimony into evidence. I see no difference of moment here in the equivalent guarantees of trustworthiness under the two rules just cited.
. “It seems apparent that .the Sixth Amendment’s Confrontation Clause and the evidentia-ry hearsay rule stem from the same roots. But this court has never equated the two, and we decline to do so now.” Dutton, at p. 86, 91 S.Ct. at p. 218 (footnotes omitted).
. The majority follows the path of the plurality opinion in Dutton which also looked to indicia of reliability rather than whether the defendant had been confronted.
. As discussed in Payne, the confrontation requirements of the Constitution seem to originate in the reaction to the treason trial of Sir Walter Raleigh. In his defense, Raleigh attempted to rely on statutes which required the presence and testimony of two witnesses in a trial for treason. Even though the statutes had been repealed, there are indications that popular sentiment in England remained toward requiring the proof of treason by two witnesses. See Bowen, The Lion and the Throne, p. 195. Thus, the statutes represented a first step in the development of the rule “requiring the personal production of those who had already made a statement upon oath.” V Wigmore on Evidence (Chadbourne rev. 1974), § 1364, at p. 20. Those statutes, Stat. 5 Edw. 6, c. 12, § 22 and Stat. 1 & 2 Philip and Mary, c. 10, § 11, provided an exception to the two witness rule in the case of a deceased witness. For example, Stat. 5 Edw. read: “Which said accusers at the time of the arraignment of the party accused, if they be then living, shall be brought in person before the party so accused, and avow and maintain that which they have to say to prove him guilty. . . . ” (Emphasis added)