(concurring in part and in the result):
24. I agree with the majority opinion’s treatment of the first granted issue. Regarding the second, however, I do not agree. Instead, I believe that the military judge erred when he permitted the members to read for themselves a transcript of the prior proceedings in this trial.
25. With certain conditions not relevant here, Article 36(a), Uniform Code of Military Justice, 10 USC § 836(a), empowers the President to prescribe rules of practice and procedure and rules of evidence for courts-martial. The President has exercised that authority in several rules in the Manual for Courts-Martial, United States, 1984, that closely bear on this issue.
26. For instance, RCM 805(d)(1), Manual, swpra, prescribes that, when a new member is detailed to a court-martial after testimony has been taken, the prior testimony “is read to the new member____” Regarding testimony different from the usual oral presentation of the witness in the courtroom, RCM 811(f) instructs that “a written stipulation of expected testimony shall be read to the members, if any, but shall not be presented to them____” In the same vein, the Discussion accompanying RCM 702(a) states: “A deposition which is transcribed is ordinarily read to the court-martial by the party offering it____ The transcript of a deposition may not be inspected by the members----”
27. Accordingly, it well may be, as the court below noted, that military judges have broad authority to regulate court-martial proceedings; that authority, however, is circumscribed to the extent that the President has prescribed procedures under his statutory authority to do so. While no Rule for Courts-Martial specifically addresses the unusual situation presented here of 2 months’ passage between sessions that requires a refresher of the prior testimony, I believe that the President clearly has reflected his decision that testimonial evidence will be heard by the members and never read by them, much less both. See also RCM 913(c)(2) (“The testimony of witnesses shall be taken orally in open session, unless otherwise provided in this Manual.”); RCM 921(b) (During deliberations, “[mjembers may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced____”). See generally United States v. Austin, 35 MJ 271 (CMA 1992) (error to permit members to take into deliberation room a transcript of victim’s prior testimony at Article 32, UCMJ, 10 USC § 832, session, admitted into evidence at trial as a prior inconsistent statement under Mil.R.Evid. 801(d)(1)(A), Manual, supra, and as former testimony under Mil. R.Evid. 804(b)(1)).
28. I join the majority’s affirmance of the decision below, however, because I am satisfied that this error did not prejudice appellant’s interests. Appellant argues that he was disadvantaged compared to the prosecution by having the latter’s evidence heard (albeit 2 months earlier) and read by the members, and I am not insensitive to the logic of that argument. Here, however, I do not find it persuasive.
29. The members read the earlier testimony prior to hearing the defense case-in-chief and did not have the written transcript available to them for study and dissection in the deliberation room itself. Cf. United States v. Austin, supra at 277 (prejudice found, in part, because defense evidence was *494not “before the members in such detañed and favored form during their deliberations.”). Also, the defense evidence was received more recently and, thus, was at least as fresh in their minds as was the written refresher of the prosecution’s evidence, which is unlike a situation in which written testimony is taken into the deliberation room. In this context, I am convinced that the prosecution’s evidence was not in a “favored form” compared to the defense evidence. Cf. id.