dissenting:
The Court today, eschewing any suggestion that its decision is based upon the confrontation clause of the sixth amendment to the United States Constitution, concludes that the admission of the preliminary hearing testimony of an unavailable witness in a subsequent criminal trial violates certain “public policy considerations” gleaned from a case nearly a century old, State v. Potter, 6 Idaho 584, 57 P. 431 (1899),1 without explaining how those early “public policy considerations” relate to the public policy expressed in the current statutes, Court decisions and the Idaho Rules of Evidence.
The public, policy considerations expressed in Potter were essentially two — the confrontation clause of the United States Constitution, and the perceived absence of any statutory authority for the admission of such prior preliminary hearing testimony of an unavailable witness. Both of *428those policy considerations have subsequently been rejected by the United States Supreme Court and this Court. The Supreme Court of the United States, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), held that the confrontation clause is not offended by the admission of preliminary hearing testimony at a criminal trial, where the defendant was represented by counsel and had the opportunity to cross examine at the preliminary hearing. The Court in Ohio v. Roberts held that the public policy of having all the relevant evidence submitted in a criminal trial outweighed any claim by the defendant that his rights to confrontation were violated because he did not again have an opportunity to cross examine a witness. Secondly, the absence of any legislation authorizing the admission of such preliminary hearing testimony at trial, which the Court in Potter found significant, is no longer significant. In 1985 this Court adopted the Idaho Rules of Evidence which specifically permit the admission of such preliminary hearing testimony. Those rules further provide that the Rules of Evidence take precedence over any conflicting statutory provisions. I.R.E. 1102. The rules also presumably would take precedence over the absence of any statutory provisions which the Court in Potter found significant.
Based upon the public policy considerations expressed in both the confrontation clause of the United States Constitution, as most recently defined by the United States Supreme Court in Ohio v. Roberts, supra, and the Idaho Rules of Evidence adopted by this Court in 1985, the trial court did not err in admitting the preliminary hearing testimony of the witness Martha Elisondo. Each of these issues will be discussed separately in more depth.
I
The majority is inconsistent in its analysis. In at least two places, the majority states that its decision is not based on the confrontation clause.2 Even though the majority purports to be deciding the case on something other than the confrontation clause, and even though it denotes its reasons for its decision as “public policy considerations,” ante at 678, the majority’s ratio decidendi is really based on the right of confrontation as is evidenced by its discussion regarding cross examination, motions to suppress, motions for a physical or mental examination and the like. In short, the majority cites no “public policy considerations” other than those naturally emanating from the confrontation clause, yet the majority contends that its decision is not based on the confrontation clause.
Furthermore, the majority overrules State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981). If, as the majority asserts, the instant ease truly is not based on the confrontation clause, then we have no occasion to overrule Mee. The decision in Mee was based squarely on the confrontation clause of the United States Constitution. The majority acknowledges as much, ante at 677, when it states, “In Mee the Court ... based its decision on the asserted violation of the confrontation clause of the United States Constitution.” In summarizing its confrontation clause discussion, the Mee Court stated:
“When the declarant is unavailable, but has previously testified in a judicial forum complete with oath, recordation, presence of the defendant and counsel, and adequate opportunity to cross-examine, that earlier testimony is admissible without violation of the confrontation clause of the United States Constitution.” 102 Idaho at 483, 632 P.2d at 672.
Thus, the decision in Mee was premised on the confrontation clause; yet the decision of the majority in the instant action “is not based on the confrontation clause.” The Court’s opinion has not adequately explained why it is necessary to overrule our 1980 decision in Mee.
*429ii
The majority purports to be deciding this case on “public policy considerations.” However, the public policy of the State of Idaho favors the admission of preliminary hearing testimony in cases like the one at bar. The instant action involves three sources of public policy: (1) that expressed in the United States Constitution, i.e., the confrontation clause; (2) that expressed (or, more accurately, not expressed) in the Idaho statutes; and (3) that expressed in the Idaho Rules of Evidence. As will be shown, infra, (1) the confrontation clause permits the admission of the preliminary hearing testimony at issue; (2) the Idaho statutes do not address the issue of the prosecution’s use of preliminary hearing testimony; and, filling that void, (3) the Idaho Rules of Evidence expressly authorize the admission of such testimony.
A.
The United States Supreme Court has previously held that the admission of preliminary hearing testimony, like that at issue here, does not violate the confrontation clause. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). With this the majority does not quarrel, nor do I; the public policy embodied in the confrontation clause does not prohibit the admission of witness Martha’s prior preliminary hearing testimony.
B.
A second possible source of public policy are the Idaho statutes, specifically I.C. §§ 19-3101 et seq.3 Our decision in State v. Potter, supra, was premised on the fact that the statutes then in existence did not expressly permit the prosecution’s use of preliminary hearing testimony at trial. The statutes allowed the defendant to use preliminary hearing testimony at trial, but were silent as to the prosecution’s use. The Court in Potter, overruling an earlier case to the contrary, Territory v. Evans, 2 Idaho 651, 23 P. 232 (1890), interpreted that silence as expressing a legislative rejection of the use of preliminary hearing testimony by the prosecution. The Potter Court stated:
“[W]e find no authority for the admission in the statutes of Idaho____ [W]e find no statute of either the territory or state permitting or authorizing the use of such depositions on the trial____ [Tjhere is no provision of our Revised Statutes permitting the use of the depositions taken on a preliminary examination to be used against the defendant upon his trial---If it required a statute to authorize the admission of depositions in favor of the defendant, it certainly would not be contended that depositions against him should be received without equal authority.” 6 Idaho at 587-588, 57 P. at 432.
The Potter Court interpreted legislative silence as a rejection, saying, “[A] practice which wants the authority of law [i.e., no statutes existed expressly authorizing the prosecution’s use of preliminary hearing testimony], and which is in derogation of a recognized elementary right of the citizen [i.e., conflicts with the confrontation clause, which had not yet been made applicable to the states], should gain no sanctity by user.” Id. Thus, there were two reasons for the decision in Potter: (1) there were no statutes expressly authorizing the prosecution’s use of preliminary hearing testimony, and (2) use of such testimony would violate the recognized elementary confrontation clause right of every citizen.
The confrontation clause rationale of the Potter decision has been annulled by the recent decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.E.2d 597 (1980), which upheld the use of such preliminary hearing testimony. Likewise, the “absence of a statute” prong has also been abrogated by this Court’s adoption of the Idaho Rules of Evidence. The Idaho Rules of Evidence have filled the void left by the statutes interpreted in Potter.
The public policy expressed in the Idaho Rules of Evidence regarding admission of the preliminary hearing testimony at issue is first reflected in I.R.E. 402, the general *430rule regarding admission of evidence, which reads:
“All relevant evidence [ie., evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, I.R.E. 401] is admissible except as otherwise provided by these rules or by other rules applicable in the courts of this state. Evidence which is not relevant is not admissible.”
Here, the witness’s preliminary hearing testimony is relevant because it tends to identify Elisondo as the perpetrator of the crime. Certainly such evidence “is of consequence to the determination of the [instant] action.” I.R.E. 401. Under the general public policy expressed in I.R.E. 402, Martha’s preliminary hearing testimony is admissible unless its admission conflicts with some other rule of evidence.4
The other inquiry into the admission of Martha’s preliminary hearing testimony is that under I.R.E. 801(c), the hearsay rule.5 Although Martha’s testimony is hearsay, there is a clearly applicable exception to the hearsay rule for this type of testimony in I.R.E. 804(b)(1), which reads:
“Rule 804. Hearsay exceptions; declarant unavailable.— ...
“(b) Hearsay exceptions. 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 of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”
The record is clear that the defendant was present with his counsel at the preliminary hearing and cross examined the witness, Martha. Additionally, the majority has not disturbed the Court of Appeals’ holding that Martha was unavailable at trial. The remaining elements of I.R.E. 804(b)(1) were also met. Martha’s preliminary hearing testimony clearly qualifies as “former testimony” because her testimony was given as a witness, under oath, at another judicial hearing (the preliminary hearing), and at that hearing Elisondo was represented by counsel and had an opportunity and a motive to develop her testimony by cross examination. Accordingly, the admission of Martha’s former testimony is expressly authorized by the Idaho Rules of Evidence, thus filling the void left by the aforementioned Idaho statutes.
The Idaho Rules of Evidence, specifically Rules 402 and 804(b)(1), were adopted in 1985, when State v. Mee, supra, was the controlling decision. Those rules represent the present public policy regarding the admission of preliminary hearing testimony where the witness is unavailable and the defendant and his counsel were present and had the opportunity to cross examine. Rule 804(b)(1) codifies this Court’s ruling in State v. Mee, supra. The Court’s action today, in overruling Mee, also impliedly repeals I.R.E. 804(b)(1). Ironically, the Court does that by re-adopting the 19th century reasoning of this Court’s 1899 decision in State v. Potter, supra, which was based upon a rationale that the legislature, by permitting a defendant to use such preliminary hearing testimony when no similar authorization was given to the state, had impliedly prohibited admission of such tes*431timony proffered by the state. That earlier case found an implied policy in the statutory void. However, that void has been filled by I.R.E. 804(b)(1), which adopts a policy specifically permitting admission of the prior preliminary hearing testimony of an unavailable witness. Furthermore, I.R. E. 1102 provides that “[statutory provisions and rules governing the admissibility of evidence, to the extent they are evidentiary and to the extent that they are in conflict with applicable rules of Idaho Rules of Evidence, are of no force or effect.” Whatever may have been the justification for the Potter Court interpreting a void in the statutes as indicating a legislative preference for non-admission of this sort of evidence, an express statutory provision to that effect, if it existed, would now be preempted by I.R.E. 804(b)(1) and I.R.E. 1102. It is difficult to understand how the interpretation of a statutory void can survive the preemptive effect of I.R.E. 804(b)(1) and I.R.E. 1102 when, a fortiori, an express statutory provisions would be preempted.
The most current “public policy” expressed by the United States Supreme Court in interpreting the confrontation clause supports the admission of this type of evidence. The most recent “public policy” expressed by this Court, in both its decision in State v. Mee, supra, and in its order adopting I.R.E. 402 and I.R.E. 804(b)(1), supports the admission of this evidence. After recognizing that its decision today is contrary to the great weight of authority in both the state and federal courts, and without even acknowledging that its decision today conflicts with our own evidence rule I.R.E. 804(b)(1), the majority nevertheless proceeds to reverse the trial court and the Court of Appeals even though those two courts correctly decided this case.
The Court further states that it is applying its decision today only prospectively; however, it reverses the conviction of the defendant Elisondo in this case. In State v. Mee, supra, the Court recognized that it was overturning existing precedent and stated that its decision was to be applied prospectively only. In Mee, the Court did not apply its ruling to the parties in that case, but rather reversed Mee’s conviction because under the law that existed prior to the Court’s decision in Mee the defendant Mee could not have been convicted.6 The Court in this case again states, as it did in State v. Mee, that its decision is to be applied only prospectively, but nevertheless applies the decision to this case and reverses the conviction of the defendant Elisondo even'though, under the law prior to today’s decision, Elisondo was properly convicted. If the prospective decision in State v. Mee was not applied to the litigants before the Court in that case, then the prospective decision in this case should not be applied to the litigants before the Court today, and the judgment of conviction should be affirmed. The unequal treatment for the litigants in this case as compared to State v. Mee, resulting from the prospective overrulings which have occurred now in both cases, hardly comports with the ideal of equal justice under law.
The judgment of the trial court and the decision of the Court of Appeals should be affirmed.
. The Court in Potter had itself overruled an even earlier decision of this Court in Territory v. Evans, 2 Idaho 651, 23 P. 232 (1890), which, contrary to the Potter case, had allowed the admission of such preliminary hearing testimony. Potter was reaffirmed in the later case of State v. Villarreal, 94 Idaho 246, 486 P.2d 257 (1971). Subsequently, both Potter and Villarreal were overruled by this Court’s recent decision in State v. Mee, 102 Idaho 474, 632 P.2d 663 (1981).
. Ante at 678, "Since our decision today is not based on the confrontation clause ...,” and ante at 678, “We emphasize that our decision today is not based on an asserted violation of the confrontation clause____"
. The statutes at issue in Potter do not differ materially from present I.C. §§ 19-3101 et seq.
. The phrase "other rules applicable in the courts of this state” in I.R.E. 402 would refer to the constitutional right of confrontation. “Although not specifically stated in Rule 402, it is implicit that evidence obtained in violation of the constitutionally protected rights of a party would be inadmissible under ‘the rules applicable in the courts of this state.’" M. Clark, Report of the Idaho State Bar Evidence Committee, C 402, p. 1 (4th Supp.1985). But, as has been established above, the admission of such preliminary hearing testimony does not conflict with the confrontation clause.
. "Rule 801. Definitions. — The following definitions apply under this Article:
“(c) Hearsay. ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
. In 102 Idaho, at page 483, the Court in Mee recognized that it was overturning existing precedent and stated:
"To apply a new appellate ruling in passing upon the validity of an earlier conviction in such circumstances as present here would be the equivalent of applying an ex post facto law in violation of both federal and state constitutions. [State v. Byers, 102 Idaho 159], 627 P.2d [788] at 795 [1981]. Thus, the rule set forth by this Court herein is to be applied prospectively only."