(concurring in the result) :
I concur in the result.
I need not decide whether the portion of paragraph 140a of the Manual which is condemned by the majority deserves such treatment. In my book, this case simply does not present a question which is primarily dependent upon an interpretation of Article 31 (b) of the Code, 10 USC § 831; rather, this issue is whether the law officer improperly restricted cross-examination by defense counsel. I turn to the record to show why that is so.
At trial, the prosecution presented Lieutenant Richard D. Minnigan as a witness to testify regarding the interrogation of the accused. Lieutenant Minnigan had been appointed to investigate the circumstances surrounding the discovery of the cache of cigarettes involved in the alleged theft. The Lieutenant testified that he had interrogated the accused during the course of his investigation and that he had “warned” the accused prior to eliciting any testimony from him. No other facts or circumstances surrounding the giving of the statement, or any explanation of the sort of warning which was given is shown by the record, for after the Lieutenant made that statement, defense counsel objected, saying, “I would like to examine the witness on voir dire as to how the accused Price was warned under Article 31, and the reason for it at this [time?] is that I presume that there are going to be certain revelations.” The law officer overruled this objection on the ground that it was premature. Defense counsel repeated his objection, saying that he wanted to show that any statement made by the accused to Minnigan at that time was involuntary, All of this time trial counsel was opposing the ob-*594jeetion' on the ground that such an inquiry would be irrelevant.
I have long been of the opinion that the question of whether a warning was given under Article 31 is a question which may be independent of any problem of involuntariness. United States v Gibson, 3 USCMA 746, 14 CMR 164; United States v Josey, 3 USCMA 767, 14 CMR 186. However, there may be occasions when other factors, combined with failure to warn, add up to involuntariness. Certainly a failure to warn may aggravate any unlawful inducement or unlawful influence offered or exercised by one of higher rank. In the case at bar, I am not sure just what counsel may have intended to bring out by his cross-examination, for he was denied his right to probe into the surrounding details. He may have been seeking to explore the question of warning to ascertain if it was coupled with other grounds of involuntariness, or he may have sought to develop other possible violations of Article 31 which would render the accused’s statement to the Lieutenant inadmissible. Thus, even, if it be supposed, as the record now shows, that some warning had been given, defense counsel should, on cross-examination, be entitled to explore that area and all other matters touching on admissibility.
It only remains to be said that the law officer was in error in concluding that the objection was prema- ture. I know of no more appropriate time for counsel to make this sort of objection than the time chosen here. Certainly the law officer should know that the time for trial counsel to lay the foundation for the admission of evidence, or for defense counsel to destroy the base for its consideration by the court-martial, is prior to the time when it is admitted. It is much better if the testimony is not admitted than it is to have it before the court and then have it stricken subsequently. Once inadmissible evidence is presented to the court members, the accused is unnecessarily saddled with a burden, for there is a risk that its effect will not be entirely erased from the minds of those who should not have become familiar with it in the first instance.
In United States v Hawkins, 6 USCMA 135, 19 CMR 261, we had occasion to hold that a law offlcer’s ruling which improperly restricts defense counsel’s cross-examination in a material area, or on a substantial issue at the trial, must be viewed as an error which materially prejudices the rights of the accused. In that case, the restricted area concerned the identity of a police informer; here the restricted area concerns the admissibility of substantial and damaging evidence against the accused. In both situations, our conclusion must be the same; the accused was materially prejudiced by the erroneous restriction of cross-examination.