(dissenting). I am persuaded that a new trial is required because this seventeen year old defendant was prejudiced by improper prosecutorial conduct during the procurement of indictments from the grand jury. I would order a new trial in the interest of justice. Accordingly, I respectfully dissent from the court’s conclusion affirming the judgment of conviction of murder in the first degree. I state my reasons; in doing so, I focus only on that aspect of the court’s opinion which discusses the issue of the impairment of the integrity of the grand jury proceedings leading to the indictment of the defendant. As my view of the facts shown in the record pertaining to that issue differs from that of the court, I state the relevant facts in some detail.
Kevin Gallagher and four other witnesses, among them Detective Robert F. Aheam1 of the Boston police department’s homicide unit, were called to testify before the grand jury who indicted the defendant for rape and murder. The key witnesses before the grand jury were Gallagher and Detective Aheam.2
Prior to his first trial, the defendant moved to dismiss the rape and murder indictments based on the allegedly false grand jury testimony of Detective Aheam. The defendant took issue with two statements in particular. First, the detective testified *632before the grand jury that Dr. Atkins, the associate medical examiner,3 had told him that the victim’s death could have been caused by a severe blow to the neck. The defendant claimed this to be contrary to the autopsy report. Second, in response to a question whether semen was found in the victim’s vagina, Detective Aheam answered affirmatively. The defendant argued that the laboratory reports, of which the detective must have been aware, stated otherwise.4 The judge denied the motion to dismiss, subject to reconsideration after a voir dire examination of Dr. Atkins during trial regarding the cause of death.
At the subsequent voir dire, Dr. Atkins stated that he had, in fact, told Detective Aheam that a severe blow to the neck could have caused the victim’s death. The judge again denied the motion to dismiss. The defendant indicated at that time that he might renew the motion as the trial progressed, based on the grounds previously articulated and, possibly, additional grounds.
At the close of his case, the defendant renewed his motion once more. He restated the original grounds for the motion. Moreover, he added reference to another portion of Detective Aheam’s grand jury testimony. The defendant asserted that the detective testified falsely before the grand jury in stating that in the early morning of August 2, 1983, he recovered the cigarette lighter stolen from Ruiz by the defendant “right in the area where the body was found.” Detective Aheam had *633admitted, at trial, that he did not find a lighter when searching the area where the victim’s body was found. Other trial testimony indicated that another police detective, Gerard Seeley, found a lighter some distance from the site of the murder.5
The judge denied for the third time the motion to dismiss the indictments, stating that his latest ruling was “based on all the evidence which has been presented to the Court in the way of both affidavit and evidence during this case.”6
The issue before us, then, is whether Detective Abeam’s testimony before the grand jury relative to the cause of the victim’s death, the presence of semen in her vagina, and the *634detective’s discovery of the cigarette lighter at the murder scene, either singly or in the aggregate, constitutes sufficient grounds for dismissing the murder indictment.
Ordinarily, “a court should not inquire into the adequacy or competency of the evidence upon which an indictment is based. . . . However, when it appears that the integrity of the grand jury process has been impaired, a defendant may attack the validity of the indictment by way of a motion to dismiss. . . . There can be no doubt that the knowing use by the Commonwealth or one of its agents of false testimony to procure an indictment is a ground for dismissing the indictment” (emphasis supplied). (Citations omitted.) Commonwealth v. Salman, 387 Mass. 160, 166 (1982). See Commonwealth v. Reddington, 395 Mass. 315, 319 (1985); Commonwealth v. Bongarzone, 390 Mass. 326, 338 (1983). This principle of law was bom of a “fastidious regard for the honor of the administration of justice,” United States v. Basurto, 497 F.2d 781, 787 (9th Cir. 1974), quoting Mesarosh v. United States, 352 U.S. 1, 14 (1956), which is undermined when a defendant is put to trial on an indictment which the Commonwealth knows is based in whole or in part on false testimony.
The Commonwealth contends that Detective Aheam’s grand jury testimony was based in good faith on information provided to him by others. This assertion is plausible only in so far as it concerns Detective Aheam’s statements about the cause of the victim’s death. Based on Dr. Atkins’s voir dire testimony, the judge was warranted in concluding that Detective Aheam testified truthfully when he stated that he was told by Dr. Atkins that the victim’s injuries were consistent with a severe blow to the neck. Nevertheless, a proper review of the record should convince us that the detective gave knowingly false testimony with respect to the presence of semen and the cigarette lighter.7
Detective Aheam stated without equivocation at the grand jury proceeding that semen was found in the victim’s vagina. *635He testified at trial that he based this conclusion on the Boston police department laboratory report and on information relayed to him by a superior officer. The laboratory report was at best inconclusive, however, stating only that trace amounts of acid phosphatase were found on the swabs tested. See note 4, supra.8
On cross-examination at both trials, Detective Aheam professed to having little knowledge at the time of his grand jury appearance of the scientific principles underlying the acid phosphatase test for semen. He stated, in essence, that he was unaware that a positive finding for acid phosphatase was not equivalent to a positive finding of semen.9 This claim must be compared with the testimony of Stanley I. Bogdan, senior criminalist with the Boston police crime laboratory. Bogdan conducted the tests on the vaginal and rectal swabs taken from the victim and prepared the report on which Detective Aheam purportedly relied when testifying before the grand jury.
Bogdan testified that he spoke with Detective Aheam after the laboratory report was completed and told him that trace amounts of acid phosphatase were found on the swabs. He informed Detective Aheam that acid phosphatase is an enzyme found in high concentrations in semen, but noted that it is found in other body fluids as well. Most importantly, Bogdan testified, without contradiction, that he told Detective Aheam, based on his findings, he could not give an opinion that semen was present on the vaginal swabs. Thus, Detective Aheam’s statement to the grand jury was in direct contradiction to what he had been told by the person most competent to interpret the test results. A fair reading of this evidence is that Detective Aheam was aware of the falsity of his answer regarding the presence of semen in the victim’s vagina.10
*636Additionally, there can be no question that Detective Aheam’s testimony with respect to the cigarette lighter was a deliberate prevarication. The detective told the grand jury that he, personally, found a cigarette lighter right in the area where the victim’s body was discovered. This was patently untrue. In explanation of his grand jury testimony, Detective Aheam stated at trial that it was related to him (by an officer whose identity he could not recall) that a cigarette lighter belonging to Ruiz was recovered in the area of the body. Detective Seeley’s trial testimony, see note 5 and accompanying text, supra, is to the contrary. Detective Seeley stated that he had picked up a cigarette lighter by the backstop of a baseball diamond near the street side of the park. He characterized this location as being in the vicinity where the body was found. This testimony does not advance the Commonwealth’s cause, because it does not answer the charge that Detective Aheam falsely claimed to have retrieved the cigarette lighter himself.11 Nor does it explain Detective Aheam’s statement that the lighter was found next to the victim’s body, which was the clear import of his grand jury testimony. Regardless of Detective Seeley’s post hoc characterization of the location of the lighter *637relative to the murder scene, it is clear that it was not found in the immediate area of the victim’s body.12
It seems clear to me that an agent of the Commonwealth made knowingly false statements before the grand jury who indicted the defendant. In Commonwealth v. Bongarzone, 390 Mass. 326, 338 (1983), however, we made clear that an indictment need not be dismissed if deliberately falsified testimony was not calculated to procure it. Thus, we focused on the motive of the police officer for presenting fabricated testimony. Other courts have spoken of the materiality of the false testimony when determining whether an indictment must be dismissed. See, e.g., Commonwealth v. Ward, 17 Mass. App. Ct. 985, 985-986 (1984); Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 578 (1982); United States v. Flaherty, 668 F.2d 566, 584-585 (1st Cir. 1981); United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). The concept of materiality is related directly to the motive to falsify, such that it may be inferred generally that when a grand jury witness gives deliberately false and material testimony he has done so in an effort to help procure an indictment.13
Both of the false statements by Detective Aheam were material; each, to some degree, advanced the Commonwealth’s cause. The detective’s assertion that semen was found in the victim’s vagina lent credibility to Gallagher’s eyewitness account of the murder because it provided corroboration for his assertion that the victim had been raped. Detective Aheam’s testimony regarding the cigarette lighter was of even greater importance, for it provided the only physical evidence linking *638the defendant to the murder scene. This testimony, too, was corroborative of Gallagher’s story.
Nevertheless, the court concludes that the murder indictment should not be dismissed because there has been no showing of actual prejudice to the defendant. To reach this conclusion, the court relies, without basis, on supposed implicit findings by the trial judge without considering whether the judge erred as matter of law as to the import of the uncontradicted and clear evidence of mendacious testimony given to the grand jury by Detective Aheam. One cannot help but feel that what the court really is holding is that, since there was a conviction by a trial jury, the impairment of the grand jury’s function should be ignored. Cf. Talamante v. Romero, 620 F.2d 784, 791 (10th Cir.) (stating that perjured grand jury testimony was “immaterial” because it was recanted at trial and did not affect conviction, and because it is unlikely that grand jury would have failed to indict, given petit jury’s guilty verdict after full trial), cert. denied, 449 U.S. 877 (1980).
In my view, this court should condemn the deliberate presentation of false grand jury testimony, not just because such testimony impairs the grand jury’s ability to perform their historic function of “protecting citizens against unfounded criminal prosecutions,” Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972), but also because of our abiding commitment to a principled system of criminal justice. That commitment entails a concern for procedural fairness and the maintenance of an equitable balance of adversary power between the State and the accused. See Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts’ Competing Ideologies, 72 Geo. L.J. 185 (1983). Consonant with such concerns, we should not permit an indictment to stand where an agent of the Commonwealth has given knowingly false testimony before the grand jury for the purpose of ensuring the return of that indictment.14
*639Proper concern for protecting the integrity of the judicial process requires that the defendant’s conviction be overturned and the indictment be dismissed. Commonwealth v. O’Dell, 392 Mass. 445, 446-447 (1984). Commonwealth v. Salman, 387 Mass. 160, 166 (1982). Commonwealth v. McCarthy, 385 Mass. 160, 162 (1982). Cf. Commonwealth v. Reddington, 395 Mass. 315, 320 (1985) (no showing Commonwealth or police officer knew, or should have known, grand jury testimony was false); Commonwealth v. Bongarzone, supra at 338 (no showing police officer testified falsely in order to procure indictment); Commonwealth v. Ward, supra (no showing Commonwealth knew grand jury testimony was false; testimony was also immaterial); Commonwealth v. Edgerly, supra at 578-579 (same).
A conclusion that the indictment should be dismissed would not preclude the Commonwealth from obtaining a new indictment and proceeding to another trial. See Eubanks v. Louisiana, 356 U.S. 584, 589 (1958) (no double jeopardy bar to reindictment and retrial of defendant whose conviction and underlying indictment were dismissed for unconstitutional exclusion of blacks from grand jury). See also United States v. Ball, 163 U.S. 662, 672 (1896). Our cases indicate that whether an indictment should be dismissed without opportunity for retrial on the basis of police or prosecutorial misconduct “turns primarily on the ability of the defendant to obtain a fair trial after, and in light of, the impropriety.” Commonwealth v. Lam Hue To, 391 Mass. 301, 312-313 (1984). Although in Commonwealth v. Manning, 373 Mass. 438, 443-444 (1977), we dismissed an indictment with prejudice where the misconduct of police officers, directed toward undermining the defendant’s relationship with his attorney, “was so pervasive as to preclude any confident assumption that proceedings at a new trial would be free of the taint,” there is no such problem in the instant case. In my view, the proper course would be to dismiss the indictment without prejudice.
In closing, I am mindful of the emotional hardships which the victim’s family, the trial witnesses, and the defendant himself already have endured through the course of two lengthy *640trials, and of the expense of such proceedings to the Commonwealth. It is with reluctance that I would consign the various participants to the possibility of yet a third trial. The court should do so, however, in the firm belief that only by demanding scrupulous adherence by public officials to principles of fundamental fairness can our criminal justice system maintain its moral legitimacy and hope to command the respect of the citizenry.15 Accordingly, I dissent.
The other grand jury witnesses were Guillermo Ruiz, Faustino Gomez, and Elizabeth Melendez. Ruiz related the incident involving the theft of his gym bag from the Dorchester House and his efforts to retrieve his belongings from the defendant. Gomez testified as to his fabrication of an alibi for the defendant at the request of the defendant’s girl friend, the half sister of the victim. Melendez, a neighborhood youth, testified that Gomez admitted to her that he had not seen the defendant on the night of the murder but had told police officers otherwise because the defendant needed an alibi.
Gallagher’s story, apart from its inconsistencies, is inherently suspect to the extent that he claimed that the defendant gratuitously invited him along to witness the murder and rape.
Doctor Atkins was not called to testify before the grand jury.
After performing an autopsy on the victim, Dr. Atkins gave a vaginal smear, vaginal swabs, and a rectal swab to the Boston police department crime laboratory for testing. The swabs were tested for the presence of acid phosphatase, an enzyme characteristically found in high concentrations in semen, and examined for sperm. The laboratory report indicates that the rectal swab tested positive for acid phosphatase, while the vaginal swabs showed only trace amounts of the enzyme. No sperm, was detected on the swabs or on the vaginal smear.
The swabs were forwarded to the Federal Bureau of Investigation (F.B.I.) laboratory in Washington, D.C., and were tested again. The F.B.I. laboratory report states that the rectal swab tested trace positive for acid phosphatase, but negative with regard to the presence of sperm or prostatic antigen. It further states that no semen was found on the vaginal swabs.
As previously noted, witnesses testified that, except for Ruiz’s sneakers, the defendant cast the gym bag and its contents aside by the wall of the abandoned school yard. The bag contained sneakers, clothing, and various personal effects, including a disposable cigarette lighter. Some of the discarded items were taken by others, while other items were left undisturbed. Detective Seeley testified that he conducted a search of Ronan Park on August 2, 1983, and recovered, next to the school yard wall, a number of items that had been in Ruiz’s bag. He found the cigarette lighter in another location, however.
After the trial ended in an aquittal on the rape indictment and a mistrial as to the murder indictment, the defendant was retried on the original murder indictment before the same judge who presided over the first trial. The defendant did not renew his motion to dismiss the indictment at the second trial, nor, in the circumstances, do I think he was obligated to do so to preserve his appellate rights.
In addition to the alleged falsity of Detective Aheam’s grand jury testimony already outlined, the defendant now asserts that the grand jury presentation was fatally flawed in other respects. The defendant claims that Detective Aheam distorted the facts by testifying that the defendant avoided the investigating police officers after the murder, and by failing to inform the grand jurors of the many occasions on which the defendant spoke with various police officers. The defendant also complains that the prosecutor misled the grand jury by withholding presentation of certain facts which, in varying degrees, cast doubt on the veracity of Gallagher’s eyewitness testimony. Finally, the defendant contends that the prosecutor acted improperly in presenting Faustino Gomez’s testimony as to a contrived alibi without eliciting a disclaimer that the alibi was fabricated without the defendant’s knowledge or consent.
I agree that the court need not consider these additional grounds (see ante at 622 n.4) because the defendant has waived review of these grounds by failing to present them to the trial judge. See Mass. R. Crim. P. 13 (a) (2), 378 Mass. 871 (1979); Commonwealth v. Sawyer, 389 Mass. 686, 692 (1983).
The court’s assumption, ante at 625, that the judge implicitly “found such facts in support of his ruling as the record would reasonably permit” disregards the clear import of the evidence, as well as overlooks the possibility that the judge’s ruling was based on error of law.
The F.B.I. laboratory report, which was dated October 20, 1983, the day before Detective Aheam appeared before the grand jury, clearly stated that no semen was present on the vaginal swabs. It is not apparent whether Detective Aheam examined that report before testifying before the grand jury. He stated at the second trial that he did not.
Some skepticism of this claim might arise from Detective Aheam’s status as a sixteen-year veteran of the police force.
In light of Bogdan’s testimony, this case is not factually similar to Commonwealth v. Reddington, supra. There, field tests conducted on two *636substances found at the defendant’s home indicated that they were opium and cocaine. This information was relayed to the arresting officer who testified to that effect at the grand jury. Laboratory analysis completed after the officer testified revealed, however, that the substance thought to be opium was nonnarcotic, as was most of the substance thought to be cocaine. The court held that the defendant’s motion to dismiss the indictments against him was properly denied because there was no showing that the testifying officer knew, or should have known, that the testimony was inaccurate; he was merely restating in good faith what another experienced officer had told him. Id. at 319-320.
Contrast the instant case. Here Detective Aheam claims that his superior told him that semen had been found on the vaginal swabs. The person who conducted the tests testified, without contradiction, that he told the detective that he could reach no such conclusion.
The Commonwealth theorized at oral argument that, when using the pronoun “I” in the relevant statement, Detective Aheam was referring to the Boston police department and its individual members as a unitary whole. This explanation is utterly implausible.
None of the police reports contained in the record detailing the items recovered from Ronan Park by police officers following the murder makes any reference to a cigarette lighter. Detective Seeley testified that the cigarette lighter which he found was not submitted to Bogdan for analysis, although he did submit a number of other items which were designated as having been found in the vicinity of the body.
There is a caveat to this generalization, based on the unique facts of Commonwealth v. Bongarzone, supra. In that case, although the police officer’s knowingly false grand jury testimony was material, it was also exculpatory. Consequently, we concluded that the false testimony was not intended to procure an indictment.
To do otherwise would effectively insulate the Commonwealth from accountability for knowing and deliberate improprieties at the grand jury stage of proceedings, provided those improprieties were not repeated at trial. To accept such a theory would render the protections against unjust indictments a nullity.
The defendant has charged the prosecutor with “playing an ignoble part” in the presentation of false testimony to the grand jury. See Commonwealth v. Lincoln, 368 Mass. 281 285 (1975). It is unnecessary to consider the validity of this particular allegation. I note, however, that the charge does not appear wholly unfounded on the record before us. Prosecutors have an ethical duty to request the dismissal of an indictment if they become aware, even after the fact, that false testimony was used to obtain it. See Commonwealth v. Bongarzone, 390 Mass. 326, 339 n.10 (1983); Commonwealth v. Salman, supra at 167. Rule 3:08, PF 12, of the Rules of the Supreme Judicial Court, as appearing in 382 Mass. 802 (1981) provides: “It is unprofessional conduct for a prosecutor knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or to fail to seek withdrawal thereof promptly upon discovery of its falsity" (emphasis supplied). By the end of the first trial, at least, it was clear that false material evidence had been submitted to the grand jury.