(dissenting).
I respectfully dissent. The majority holds that Morales is entitled to a new trial because the State attempted to lay the foundation for the admission of testimony codefendant Felipe Vega-Lara gave during his own trial. In response to Vega-Lara’s refusal to answer questions in reb-anee on a nonexistent privilege, the State attempted to lay a foundation to have Vega-Lara’s testimony from his earlier trial admitted as substantive evidence. The majority holds that the State’s attempt to lay this foundation unfairly prejudiced Morales and entitles him to a new trial. I disagree. I would hold that Morales was not unfairly prejudiced and would affirm his conviction.
I.
As the majority notes, Vega-Lara testified at his own trial that he and Morales went to the house of prostitution in Minneapolis on the night of the murder, carrying loaded guns and intending to commit a robbery. During a struggle for Morales’s gun, Vega-Lara said that he shot the victim. The State sought to offer this same evidence during Morales’s trial. But Vega-Lara refused to testify, relying on a nonexistent privilege. The majority holds, and I agree, that the State did not call Vega-Lara in bad faith.
The majority nonetheless reverses Morales’s conviction based on how the State attempted to address Vega-Lara’s assertion of a nonexistent privilege. Specifically, in the face of Vega-Lara’s refusal to testify, the State attempted to lay the foundation for the admission of Vega-Lara’s testimony from his own trial as prior inconsistent statements under Minn. R. Evid. 801(d)(1)(A). This rule requires that a foundation be laid before the evidence is admitted. The proponent of the evidence must ask the witness a question *768about which the witness has already been questioned under oath. See Minn. R. Evid. 801(d)(1)(A). The witness must give a response inconsistent with the earlier testimony. See Minn. R. Evid. 801(d)(1). Finally, the witness must be subject to cross-examination concerning the statement. See id. In the questioning that the majority finds amounts to reversible error, the State was attempting to lay the foundation our rule of evidence requires. The prosecutor asked Vega-Lara a series of questions about Vega-Lara’s testimony at his earlier trial. Morales’s attorney then cross-examined Vega-Lara. But Vega-Lara refused to answer the questions, claiming an invalid privilege. Because Vega-Lara refused to answer the questions, the majority now reverses Morales’s conviction.
The majority attempts to find support for this result in State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964). Citing Mitchell, the majority concludes that a new trial is warranted when the prosecution calls a witness in good faith, but the witness claims a nonexistent privilege and as a result the witness’s “examination is of a type that has prejudiced [a] defendant to the extent that he has been denied a fair trial.” See Mitchell, 268 Minn. at 517, 130 N.W.2d at 131. Mitchell does not support the result the majority reaches.
The rule we adopted in Mitchell requires that the defendant be unfairly prejudiced by the questioning of a witness claiming a privilege in order to be entitled to a new trial. See Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963) (explaining that a new trial is warranted if “in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant”). In Mitchell, we said that “where there is an apparent want of good faith on the part of the prosecuting attorney, calling as a witness a coconspirator who did not intend to testify for the prosecution and obtaining from him the claim of privilege against incrimination in the presence of the jury is prejudicial misconduct.” 268 Minn. at 515, 130 N.W.2d at 130. But we noted that where, as in this ease, the witness is called in good faith, unfair prejudice is not presumed, but must be demonstrated. Id. at 517, 130 N.W.2d at 131.
Mitchell provides additional guidance as to what constitutes unfair prejudice in this context: “ “Where a prosecutor is charged with conduct so prejudicial as to amount to reversible error, the charge should be made good by showing a successful effort to influence the jury against a defendant by some means clearly indefensible as a matter of law.’ ” Id. at 517, 130 N.W.2d at 131 (quoting United States v. Hiss, 185 F.2d 822, 832 (2d Cir.1950)); see also State v. Black, 291 N.W.2d 208, 212 (Minn.1980) (holding that “the prosecutor’s examination was not of a type that prejudiced the defendant to the extent that he was denied a fair trial”). We did not find the requisite unfair prejudice in Mitchell and I do not find it here.
The State’s questioning of Vega-Lara cannot be said to be “ “clearly indefensible as a matter of law.’ ” Mitchell, 268 Minn. at 517, 130 N.W.2d at 131 (quoting Hiss, 185 F.2d at 832). To the contrary, and as discussed above, the prosecutor, in questioning Vega-Lara, was attempting to lay the foundation for Vega-Lara’s testimony from his trial to be admitted as substantive evidence under Minn. R. Evid. 801(d)(1)(A). Far from being “clearly indefensible as a matter of law,” laying this foundation was a necessary response to a crucial witness’s wrongful refusal to testify on the stand. Further, admission under *769Minn. R. Evid. 801(d)(1)(A) was the only avenue reasonably available to the prosecution to get the evidence admitted substantively. This “justifies] ... the conduct complained of’ by Morales, Mitchell, 268 Minn. at 517, 180 N.W.2d at 131, as it was allowable under the Minnesota Rules of Evidence and was made necessary by Vega-Lara’s invocation of a nonexistent privilege.
The majority also attempts to find support for its conclusion in Namet But Namet does not help the majority. As the Court noted there, an important inquiry is whether “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination.” 373 U.S. at 187, 83 S.Ct. 1151. Even if Vega-Lara’s refusal to answer questions added “critical weight to the prosecution’s case,” id., Vega-Lara was subject to important cross-examination, which under Namet means that Morales was not unfairly prejudiced. See id. Vega-Lara answered one question out of the six that Morales’s counsel posed: “Did you testify that you had not intended to kill [the victim]?” Vega-Lara admitted that he had testified to this at his own trial. That Vega-Lara had not intended to kill the victim was an important fact in the defense’s case, and Morales’s counsel referenced the question and answer in his closing argument to the jury. This fact further undercuts the majority’s assertion that Morales suffered unfair prejudice due to Vega-Lara’s refusal to answer questions.
I would hold that because the prosecutor was attempting, in good faith, to lay the foundation for the admission of substantive evidence, the prosecutor’s action was justified and not “clearly indefensible as a matter of law.” Mitchell, 268 Minn, at 517, 130 N.W.2d at 131. This conclusion, together with the fact that Vega-Lara was subject to cross-examination on the critical issue of intent, confirm that the State’s questioning of Vega-Lara did not unfairly prejudice Morales.
The only case where we have reversed a conviction based, in part, on a violation of the rule adopted in Mitchell—State v. Jones, 277 Minn. 174, 152 N.W.2d 67 (1967)—reinforces my conclusion. In Jones, the defendant was charged with burglary and assault and the State alleged that he committed the crimes with William Cozart. 277 Minn, at 176, 152 N.W.2d at 70-71. During the defendant’s trial, the State called Cozart, who “testified in detail” as to how the burglary was committed and as to his participation in it. Id. at 180, 152 N.W.2d at 73. But Cozart declined to answer all questions posed regarding the defendant and the defendant’s alleged involvement in the crimes. See id. at 180, 152 N.W.2d at 73. The State recalled Cozart as a rebuttal witness and he again refused to answer questions regarding the defendant. See id. at 181, 152 N.W.2d at 73-74. We said that “[i]t must be assumed that the state was fully aware of the answers it would receive” to the questions Cozart refused to answer “because Cozart had taken the same position at his arraignment and when questioned in the hospital shortly after the burglary.” Id. at 181-82, 152 N.W.2d at 74.
We grounded our conclusion of unfair prejudice in the way the State used Co-zart’s refusals to answer in its closing argument. The State stressed to the jury that Cozart went “ ‘through the whole works.... He will tell us all, except one thing.... He won’t say it was the defendant. But he won’t do something else. He also won’t deny that it was the defendant.’ ” Id. at 183, 152 N.W.2d at 74-75. Based on this argument, we concluded that the State “did everything it could to implant prejudice in the minds of the jury by *770leaving with them the feeling that Cozart’s failure to testify pointed to defendant’s guilt.... The type of argument used destroys any semblance of a fair trial.” Id. at 184, 152 N.W.2d at 75. In other words, because the State directly suggested to the jury that they should infer the defendant’s guilt from Cozart’s refusal to implicate the defendant in the crime, we held that the defendant’s right to a fair trial was violated. Id. at 189, 152 N.W.2d at 78.
Unlike in Jones, the State in this case did not rely on Vega-Lara’s non-answers to argue that Morales was guilty. The State also did not suggest to the jury that it should infer Morales’s guilt based on Vega-Lara’s invocation of privilege. The majority does not cite Jones in its discussion of unfair prejudice. In my view, Jones compels the conclusion opposite that reached by the majority.
In sum, the State’s attempt to lay the foundation for the admission of Vega-Lara’s testimony was done in a good faith attempt to respond to Vega-Lara’s assertion of a nonexistent privilege. Because the State’s questions were grounded in our rules of evidence, and because Vega-Lara was subject to cross-examination in an important, material respect, I would conclude that Morales was not subjected to unfair prejudice. I therefore would reverse the court of appeals and affirm Morales’s conviction.