dissenting.
The U.S. Supreme Court held in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), that “where constitutional rights directly affecting the ascertainment of guilt are implicat*551ed, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” With all due respect to the contrary view of my colleagues, it seems me that this is just what the Supreme Court of Illinois did in this case.
A police officer testified that he saw Kevin Rice hand Raymond Pugh a bag later discovered to contain heroin. On the basis of this testimony — and nothing else — Rice was convicted in an Illinois state court of possession of an illegal drug and sentenced to a long term in prison. At a pretrial hearing on his motion to suppress the evidence consisting of the heroin, Pugh testified that Rice had not handed him the bag; that he had had it on his person for hours. At trial, Rice wanted to call Pugh as a witness; but Pugh, invoking his right not to be compelled to incriminate himself, refused to testify. So Rice sought to introduce in evidence the part of the transcript of the suppression hearing that recorded Pugh’s testimony, testimony that if believed would exonerate Rice of the charge of possession. This was refused. The state supreme court’s reasons for upholding the refusal were that Pugh’s testimony was not corroborated and that the state had not had an opportunity to cross-examine him fully at the suppression hearing. People v. Rice, 166 Ill.2d 35, 209 Ill.Dec. 635, 651 N.E.2d 1083, 1085-88 (1995).
When as in this case a person who has evidence to offer is not available to testify, testimony that he gave in another proceeding is admissible if the opposing party, in this case the state, “had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination” in that proceeding. Fed.R.Evid. 804(b)(1). I am quoting from the Federal Rules of Evidence and they of course do not govern trials in state courts, but the formulation is standard and Illinois law (though common law rather than codified) is essentially the same. See People v. Rice, supra, 209 Ill.Dec. 635, 651 N.E.2d at 1085 (“it is well settled that the testimony of a witness at a prior hearing is admissible in evidence at trial where the witness is unavailable and when ample opportunity to cross-examine existed at the prior hearing”); People v. Hawkins, 326 Ill.App.3d 992, 260 Ill.Dec. 780, 762 N.E.2d 46, 55 (2001); People v. Taylor, 287 Ill.App.3d 800, 223 Ill.Dec. 138, 679 N.E.2d 82, 86-87 (1997). There is no requirement of corroboration. That is a requirement of another hearsay exception, the one for statements against penal interest, Fed.R.Evid. 804(b)(3); People v. McCallister, 193 Ill.2d 63, 249 Ill.Dec. 806, 737 N.E.2d 196, 215 (2000), which is also applicable to Pugh’s testimony at the suppression hearing, see People v. Rice, supra, 209 Ill.Dec. 635, 651 N.E.2d at 1086-88, but which is unnecessary to consider, given the prior-testimony exception.
This is one of the solidest exceptions to the hearsay rule, see Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and a refusal to apply it in a criminal case presents a substantial issue under Chambers. The principal justification for the hearsay rule is that most hearsay statements, being made out of court, are not subject to cross-examination. People v. Robinson, 89 N.Y.2d 648, 657 N.Y.S.2d 575, 679 N.E.2d 1055, 1059-60 (1997). Hearsay statements made in court, albeit in a prior proceeding, do not suffer from that infirmity, provided that, as Rule 804(b)(1) puts it, the opposing party “had an opportunity and similar motive to develop [or challenge — see Advisory Committee Note to Subdivision (b), Exception (1) ] the testimony by ... cross ... examination.” And again Illinois law, as set forth in the state supreme court’s decision upholding Rice’s conviction, People v. Rice, supra, 209 Ill.Dec. 635, 651 N.E.2d at 1085-86, is *552the same. An auxiliary justification for the hearsay rule, but one whose validity has been strongly challenged, see Michael J. Saks, “Enhancing and Restraining Accuracy in Adjudication,” 51 L. & Contemp. Probs., Autumn 1988, pp. 243, 263-64, is that the trier of fact cannot observe the demeanor of the absent declarant.
Had Pugh’s testimony at the suppression hearing been believed, the motion to suppress the drug evidence would have been granted. The only evidence of probable cause to seize the drugs was the testimony of the police officer who claimed to have seen Pugh hand them to Rice, and his testimony would have been totally discredited had Pugh been believed. So the state had every incentive to cross-examine Pugh about his relations with Rice and any other circumstance that might make him less credible. And not only the incentive, but the right. As remarked in People v. Rice, under Illinois law cross-examination even at a preliminary hearing to determine probable cause for a search or seizure is not limited to the scope of the direct examination but includes “such further interrogation as necessary to show interest, bias, prejudice, or motive of the witness, to the extent that these factors are relevant to the question of probable cause.” 209 Ill.Dec. 635, 651 N.E.2d at 1085. The Illinois supreme court’s determination that because the suppression hearing focused on different issues from the trial the state didn’t have the incentive or opportunity to test Pugh’s reliability fully is, with all due respect, nonsense. The issues were different-probable cause to seize the drugs versus Rice’s possession of them — but the incentive to destroy Pugh’s credibility the same as it would have been had he testified at trial. If he were believed, the drugs should not have been seized and Rice was not guilty of possessing them.
It is not as if the Illinois court had found that the prosecutor at the suppression hearing in fact lacked an incentive to cross-examine Pugh fully. Rather, the court automatically equated a difference in issues to a difference in incentives to cross-examine. Here is the key passage in the opinion: “[T]he question presented at codefendant’s suppression hearing dealt with whether Officer Drozd saw codefend-ant [i.e., Pugh] tuck a brown paper bag into his pants after defendant’s car was stopped, giving the officer probable cause to search codefendant. The focus of the cross-examination of codefendant at the suppression hearing therefore was the conduct of codefendant just prior to the search, his self-interest in testifying falsely at the suppression hearing, and the issues presented by the motion to suppress. At trial however, the State’s focus would be on the guilt or innocence of defendant — a much different issue than that presented at the suppression hearing- — -and any motive codefendant might have in making exculpatory statements on behalf of defendant.” Id. at 1086, 209 Ill.Dec. 635. The issues were different from a legal standpoint, but they were not different so far as the relevance of Pugh’s testimony was concerned. Any motive he might have had for trying to exculpate Rice would, by undermining that testimony, strengthen the state’s case that Rice gave Pugh the heroin and therefore was guilty of illegal possession.
The court based the exclusion of reliable evidence essential to give a criminal defendant a crack at acquittal on an irrational ground, the “different issues” ground that as I have just explained was irrelevant to the pertinence and reliability of Pugh’s evidence. Because the state supreme court’s application of Chambers was unreasonable and the error not a harmless one, as in the otherwise rather similar case of People v. Hawthorne, 4 Cal.4th 43, 14 Cal.*553Rptr.2d 133, 841 P.2d 118, 125-28 (1992), Rice is entitled to a new trial.