(concurring in the result):
I concur in the result reached by my brothers in this case.
I had no difficulty at all in accepting the majority opinion up to and including its determination that the depositions in this case were illegally admitted, and that the accused did not consent to their use. At this point it became necessary for me to inquire whether the problem was to be controlled by United States v. Clay (No. 49), 1 CMR 74, decided November 27, 1951, or whether the record should be searched for prejudice, in accordance with the provisions of the Uniform Code of Military Justice, Article 59(a).
In Clay, of course, this Court enunciated the doctrine of military due process, and set down a non-exclusive enumeration of its elements. Among these the following was expressly included: “[the right] to be confronted by witnesses testifying against him.” I am sure that if Clay is to govern, a search for specific prejudice is quite unnecessary — as I sought to demonstrate in my separate concurrence in United States v. Woods and Duffer (No. 1023), 8 CMR 3, decided February 19, 1953. We intended to provide to this effect in Clay; we did so provide; and we should have done so.
However, I am sure that to the principle of confrontation, as guaranteed through the concept of military due process, the use of depositions in a proper case must be deemed a statutory exception. Uniform Code, supra, Article 49 (d). My chief concern here, therefore, has been one of whether their use has also been excepted in an improper one. Two approaches to this question are possible. Under the first, the exception must be construed strictly — with the result that instances of use outside its limits must be regarded as violating confrontation guaranties. The second demands a more liberal construction. Under this view we start with a statutory provision, unknown to the Federal civilian practice, generally excepting the use of depositions by the Government in criminal cases from the operation of the principle of confrontation — with the result that the present problem becomes, not one of a violation of military due process, but instead something much less fundamental: the mere limitational determination and administration of a rule of law.
I have determined that the adoption of the latter analysis is demanded. It follows that we must evaluate the error in terms of fair risk of prejudice to the accused. Like my brothers, I find none here. For myself, however, I shall incline to administer the notion of prejudice quite tightly in this setting. Unless it is perfectly clear that the accused could not possibly have been harmed, the present error should be regarded as reversible. Motes v. United States, 178 U. S. 458, 44 L ed 1150, 20 S Ct 993.