concurring in part and concurring in the result.
I join Parts I and III of the court’s opinion and I concur in the result with respect to Part II.
In this case appellant was charged with numerous sexual offenses committed against seven boys whose ages ranged from approximately ten to eighteen years old. The incidents took place in appellant’s home between the summer of 1987 and late February 1989. During the period when the offenses were alleged to have been committed, one Oscar Mitchell, who was in his late teens or early twenties, resided with appellant and, although not related, appellant and Mitchell referred to each other as father and son. On July 13, 1989, Mitchell was called to testify before the grand jury. His testimony contradicted the testimony of some of the victims in several respects.
During the defense presentation at trial, defense counsel, announcing that he could not locate Mitchell, sought the introduction of Mitchell’s grand jury testimony. The trial court denied that request principally on the ground that the prior testimony was unreliable. The majority holds that the trial court erred in so ruling, but remands for further findings with respect to Mitchell’s asserted unavailability at the time of trial.
I agree with the holding of the majority that, assuming the trial court erred in not admitting Mitchell’s prior testimony, the error was not harmless. I also agree that if the evidence is otherwise properly admissible, a remand is necessary to permit the trial court to make a finding concerning whether the witness was in fact unavailable. Finally, I agree that our case law requires us to conclude that, if the witness was unavailable, the grand jury testimony of Oscar Mitchell should have been admitted. See Johns v. United States, 434 A.2d 463 (D.C.1981).1 In my view, however, Johns goes too far in allowing the admission of prior recorded testimony and should be reevaluated especially in light of what I regard to be a more reasonable approach under the Federal Rules of Evidence.
As the majority correctly observes the proponent of the admissibility of prior recorded testimony must show:
(1) the direct testimony of the declarant is unavailable, (2) the former testimony was given under oath or affirmation in a legal proceeding, (3) the issues in the two proceedings were substantially the same, and (4) the party against whom the testimony now is offered had the opportunity to cross-examine the declarant at the former proceeding.
Alston v. United States, 383 A.2d 307, 314-15 (D.C.1978). In this case require*414ments 2 and 3 are not in dispute and we agree that a remand is necessary for a determination of unavailability of the witness under the first requirement. Only the last requirement is in dispute, and the majority concludes that since the government had the opportunity to cross-examine Mitchell in the grand jury that was also met.
In the federal courts admissibility of pri- or recorded testimony is governed by Fed. R.Evid. 804(b) which provides:
The following [is] 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 the 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.
Thus our precedents permit admissibility if the opposing party had an “opportunity to cross-examine” while in the federal courts admissibility is dependent upon whether the opposing party had both an “opportunity” and a “similar motive” to develop the testimony by cross-examination, or otherwise, in the prior proceeding. The government urges us to adopt the latter formulation; however, in light of Johns, I am satisfied that only the en banc court is empowered to do so. But see Epstein v. United States, 359 A.2d 274, 278 (D.C.1976) (upholding denial of admission of pri- or recorded testimony on the ground that government had no motive to question witness during the prior proceeding concerning the central issue in second proceeding).
In support of its request the government has presented the following in its brief and at oral argument: Oscar Mitchell was known to be personally close to appellant and it was also known that Mitchell would dispute some of the claims made by the victims. Although not required to do so, United States v. Williams, — U.S. -, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), the government concluded that it felt itself obligated to present Mitchell’s testimony to the grand jury even though government counsel considered it to be a fabrication. At the grand jury Mitchell presented his version of events and he was questioned by some of the grand jurors. The trial judge found, however, that the prosecutor “did not assume an adversarial, inquiring, searching, and explicative approach.”
Cross-examination of a hostile witness at that stage of the proceeding, argues the government, would have exposed the status of the investigation and revealed the identity of witnesses against appellant including those who may have agreed to testify in the expectation that their role would not be immediately revealed. In addition, cross-examination might breach the secrecy of the grand jury. Moreover, revealing the government’s case to someone close to the alleged perpetrator, could result in threats to witnesses, destruction of evidence, and fabrication of defenses. In short, argues the government, it had no motive whatsoever to cross-examine Mitchell and every reason not to. The best course, from its point of view, was to reveal nothing to the witness by cross-examining him for fear that anything he learned about the government’s case would immediately find its way to appellant.
In my view the government should not be forced to question a witness under such circumstances, for the purpose of undermining the witness’s credibility, in order to protect itself should that witness become unavailable at some future trial. Adoption of the “similar motive” test would avoid such a result, and if this panel were empowered to adopt it, I would vote to do so.2
*415On the issue of whether or not the witness was unavailable, I would place a heavy burden on appellant under the facts presented here. At no time before trial did defense counsel inform the court that he had encountered any difficulties in locating the witness. When the trial calendar was called, counsel announced that he was ready for trial and gave no indication that he was unable to locate Mitchell. Indeed during jury voir dire counsel remarked: “[W]e may also call Mr. Oscar Mitchell [as a witness].” It was not until the defense began the presentation of its case that counsel informed the court that Mitchell could not be found. The record is silent concerning whether the witness was ever subpoenaed, and counsel informed the court at one point that he had been searching for the witness for three months while at another point counsel said he had been searching for six months.
Under those circumstances one is tempted to suggest that counsel made a strategic decision not to inform the court of his inability to find the witness in the anticipation that presenting the witness’s prior testimony would be more effective than presenting the witness himself. A more timely notification would have permitted the trial court to enlist the Marshal Service and perhaps the police department in an effort to locate Mitchell. Ascertaining the possible success of any such efforts at this late date is probably not possible. On remand I would require the defense to show that the whereabouts of the witness were completely unknown before setting aside the verdicts because of the witness’s unavailability.
Finally, the government also argues that the prior recorded testimony should be rejected because, as the trial judge found, it was not sufficiently reliable. The panel opinion concludes that the trial judge erred in so finding because such a determination invades the trial jury’s right to make credibility determinations. Interestingly, the grand jury had an opportunity to. assess Mitchell’s credibility and apparently found it wanting since it chose to indict despite it. The trial jury, however, will not get the opportunity to make such a judgment with a live witness if the transcript is admitted. Notwithstanding, I agree that under Johns a trial judge may not reject this kind of evidence because its reliability is questionable. That result provides still one more reason for over-turning Johns, because, as this case so clearly demonstrates, some discretion should be given to the trial judge to reject evidence of questionable reliability.
. In Johns this court reversed a voluntary manslaughter conviction. The defense of self defense had been raised and the defense had sought to introduce prior recorded testimony of two unavailable witnesses to show the decedent’s violent character. The prior testimony had been presented to a grand jury investigating an unrelated murder charge against the decedent five years before the homicide that led to the charges against Johns. A divided court held, without elaboration, that the prior testimony came within the prior recorded testimony exception to the hearsay rule. Johns, supra, at 473 n. 16; hut see Jones v. United States, 483 A.2d 1149, 1157 (D.C.1984) (without citation to Johns upheld the trial court's rejection of prior grand jury testimony of a witness who testified before the grand jury in the same case).
. The majority opines that even if the "similar motive" test were to apply "appellant would still likely prevail.” Ante at 407. I neither agree nor disagree with that assertion because I do not believe this court can decide that issue on this record. Since the "similar motive” test was not applied in the trial court, neither party had the opportunity to address the factors that needed to be considered. A determination of whether the evidence should be admitted under that test *415should be made in the first instance by the trial judge on a full record.