(concurring in part and dissenting in part, with whom O’Connor, J., joins). I agree with the court that a new trial is required in this case. I cannot join, however, in its unfortunate and unnecessary excursion into the realm of dictum as it discusses the future admissibility, for probative purposes, of prior inconsistent statements made before a grand jury. I cannot join the court in the latter venture for a variety of reasons, not the least of which is that this issue was not raised at trial and has not been briefed by both parties. The defendant’s brief is silent on the question whether Proposed Mass. R. Evid. 801 (d) (1) (A), or some version of it, ought to be adopted. Also, neither party has briefed the serious issue of confrontation implicit under art. 12 of the Massachusetts Declaration of Rights.
Other serious substantive questions give rise to my disagreement. Before turning to them, however, it is worthwhile to point *76out what the court has done on the facts of this case. The facts stated by the court are stated accurately, and need not be repeated at length. Neither the victim nor five other witnesses for the prosecution, present at the scene, were willing or able to identify the defendant at trial. Testimony of a police officer was admitted that two of these witnesses, Ciambelli and O’Con-nor, had identified the defendant as the assailant prior to trial by selecting the defendant’s photograph from a photographic array. The officer’s testimony as to the extrajudicial identification was admitted in evidence for probative purposes, i.e., as evidence that the defendant was the assailant. The court, reviewing our case law as to the circumstances in which a prior extrajudicial identification is admissible as an exception to the hearsay rule (or as “nonhearsay”; cf. Fed. R. Evid. 801 [d] [1] [C]), held the admission of this testimony to be reversible error. I agree.
Next, the prosecution sought to establish the identity of the assailant by offering Ciambelli’s testimony before the grand jury which indicted the defendant. However, no transcript of the witness’s grand jury testimony was proffered. Rather, the grand jury testimony was brought out by questions put to Ciam-belli on direct examination.1 The prosecutor offered the evidence for probative purposes under the exception to the hearsay rule known as past recollection recorded. The evidence was admitted as such, over the defendant’s objection. The court holds, pursuant to Commonwealth v. Bookman, 386 Mass. 657 (1982), that this ruling also was reversible error. Bookman held, on similar facts, that the use of grand jury testimony as past recollection recorded was error because no showing of the prerequisites of admissibility had been made. Id. at 663-664. In this case the court has concluded that “it is plain that the requirements of that exception [past recollection recorded] are not met.” Ante at 64. I agree.
In Bookman, we once again stated that “we have been generally skeptical as to the admissibility of grand jury minutes as probative evidence,” id. at 664, and cases cited. The court, *77however, now suggests that the very same grand jury testimony of Ciambelli may be admissible as probative evidence at the new trial under a definition of nonhearsay analogous to the provisions of Proposed Mass. R. Evid. 801 (d) (1) (A). I am aware that the United States Supreme Court has sanctioned such an approach. See California v. Green, 399 U.S. 149 (1970); Dutton v. Evans, 400 U.S. 74 (1970). Nevertheless, the court, as the arbiter of State evidentiary law, should pause to consider the policy and practical impact of its approach to this issue. Although the court’s opinion does not address these questions, there are two important matters worth noting. First, the court recognizes that the justification for admitting pretrial identification evidence as nonhearsay for probative purposes is “the superior probative worth of an identification made closer in time to the events in question.” Ante at 61. Yet the court creates a mie that would admit less rehable identification evidence, often given at a much later time before a grand jury, as probative of the same fact. Second, the court does not acknowledge the possibility at retrial that (a) the grand jury testimony may come in to prove identification and (b) this “probative evidence” may serve as evidence of a prior identification which (c) may justify the admission of the police officer’s testimony of prior identification. This Rube Goldberg contraption hardly is rational or consistent, as the court claims in n.9, ante at 61. Cf. Commonwealth v. Furtick, 386 Mass. 477, 481 n.2 (1980); Commonwealth v. Swenson, 368 Mass. 268, 273 n.3 (1975). Yet, the court opines that although it was error to let in the grand jury testimony as past recollection recorded, it might not be error to let in the same evidence to prove the same fact under its new theory of admissibility.
Last, in fashioning this new rule the court provides an excellent summary of the treatment of prior inconsistent statements of witnesses, and yet fixes on,the weakest part of the new approach exemplified by Proposed Mass. R. Evid. 801 (d) (1) (A) as the point to start its venture into this hotly disputed area. It is difficult to comprehend why the court concludes that testimony given before a grand jury, not subject to contemporaneous cross-examination, is a better place to be “modem” rather than “orthodox.” If a new rule is to be developed, a *78stronger argument could be made to admit testimony given at a prior trial, probable cause hearing, or deposition where both the safeguards of an oath and the opportunity for contemporaneous cross-examination are present.2 See California v. Green, 399 U.S. 149, 192-193 (1970) (Brennan, J., dissenting); State v. Saporen, 205 Minn. 358, 361-362 (1939); Blakey, Substantive use of Prior Inconsistent Statements Under the Federal Rules of Evidence, 64 Ky. L.J. 3 , 44-45 (1975-1976). If the court is seeking to show its modernity, it appears to me to be starting at the least justifiable point. Apparently, the court itself is uneasy, for it seeks to temper the effect of its dictum by providing “safeguards” to admissibility such as a requirement of effective cross-examination at trial (ante at 73), lack of leading questions at the grand jury proceeding (at 74), the need for corroborative evidence (at 74), and the absence of coercion of the witness at the grand jury (at 74 n.20).
Perhaps the best statement on this “modem” approach was made by Justice Stanley Mosk of the Supreme Court of California. Justice Mosk, commenting on the validity of § 1235 of the California Evid. Code,3 stated in People v. Johnson, 68 Cal. 2d 646, 654-655 (1968), cert. denied, 393 U.S. 1051 (1969): “[T]he draftsmen of section 1235 justify their new mie on the ground that it ‘admits inconsistent statements of witnesses because the dangers against which the hearsay mie is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. . . . The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. ’ . . . We cannot share the optimism of this *79reasoning. As [Professor] Maguire has candidly admitted ‘many trial lawyers will have none of this. They say it is a professorial pipe-dream. They have in mind considerations of practical policy. . . . (Maguire, Evidence: Common Sense and Common Law 59 [1947].) Perhaps the foremost practical objection to the academic approach is that it grossly underestimates the value of one of the characteristics which make cross-examination ‘the greatest legal engine ever invented for the discovery of truth. ’ [5 J. Wigmore, Evidence 29 (3d ed. 1940). ] To assert that the dangers of hearsay are ‘largely nonexistent’ when the declarant can be cross-examined at some later date, or to urge that such a cross-examination puts the later trier of fact in ‘as good a position’ to judge the truth of the out-of-court statement as it is to judge contemporary trial testimony, is to disregard the critical importance of timely cross-examination. It is the general rule that ‘[r]egularly, cross-examination should immediately follow direct examination. While it may be postponed by the court, this may not be done to the injury of the one having the right to cross-examine.’ (58 Am. Jur., Witnesses, § 665; cf. People v. Manchetti, [1946] 29 Cal. 2d 452, 461 . . . .) For the reason of this rule, we need look no further than Wigmore’s emphasis on the fact that ‘the cross-examinatian immediately succeeds in time the direct examination. In this way the modification or the discredit produced by the facts extracted is more readily perceived by the tribunal. No interval of time elapses, to diminish or conceal their force.’ (Italics in original.) [5 J. Wigmore, Evidence 34 (3d ed. 1940)]. This practical truth is daily verified by trial lawyers, not one of whom would willingly postpone to both a later date and a different forum his right to cross-examine a witness against his client."
The court today abandons a time honored rule, honed in experience, developed to enhance the process of discovering the truth in favor of a rule of expediency that enhances the likelihood of convictions. Although the United States Supreme Court has upheld the modem rule, whether art. 12 provides greater confrontation rights to a criminal defendant in this con*80text is, of course, undecided.4 It would be better to have the court first consider the wisdom and logic of its rule on an adequately briefed record. At the very least, this case should have been put down for reargument on these issues.
Previously, I stated my views on the importance of adequate cross-examination in a somewhat different context: “'The right to confrontation is basically a trial right. ’ Barber v. Page, 390 U.S. 719, 725 (1968). It is designed to make prosecution witnesses available for full cross-examination by the defendant and to ensure that the testimony of a witness is given under oath before the jury who will have an opportunity to observe the demeanor of the witness as he testifies” (emphasis added). Commonwealth v. Canon, 373 Mass. 494, 502, 509 (1977) (Liacos and Abrams, JJ., dissenting). The court’s venture today undeniably, and most regrettably, diminishes this right.
See main opinion at 63 n. 10 for this testimony.
In this context, I view the court’s disclaimer that it is riot ruling on the admissibility of such other prior inconsistent statements as holding out false hope to the unwary.
California Evid. Code § 1235 provided in part: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing . . . .”
Article 12 of the Declaration of Rights of the Massachusetts Constitution states in relevant part: “[E]very subject shall have a right to produce all proofs, that may be favourable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself or his counsel, at his election” (emphasis supplied). Compare the less explicit language of the Sixth Amendment to the Federal Constitution: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . ...” As I have stated earlier, the issue of the constitutionality of the court’s new rule under the State Constitution has not been briefed, or decided. We have stated on many occasions that our State Constitution may give greater protection than those provided by the Federal Constitution. See, e.g. Commonwealth v. Aponte, 391 Mass. 494, 506 (1984); Attorney Gen. v. Colleton, 387 Mass. 790, 796, 801 (1982); Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 651 (1981).