(concurring in the result) :
I disagree with several statements in the principal opinion regarding the Government’s right to take and use depositions without the presence or express consent of the accused. See my dissenting opinion in United States v Sutton, 3 USCMA 220, 11 CMR 220. However, I concur in the result on the ground that application of the doctrine of waiver in this case would result in a “manifest miscarriage of justice.” United States v Fisher, 4 USCMA 152, 15 CMR 152.
Judge FERGUSON did not participate in the decision in this case.