Opinion of the Court
HomeR Ferguson, Judge:Notwithstanding his plea of not guilty, the accused was found guilty of two offenses of conspiracy to commit extortion and one offense each of sodomy, extortion, and attempt to commit sodomy, in violation of Articles 81, 125, 127, and 80 of the Uniform Code of Military Justice, 10 USC §§ 881, 925, 927, and 880, respectively. Intermediate appellate bodies have affirmed.
The bulk of the prosecution’s case *794rested upon the testimony of witnesses, co-actors with the accused in the offenses charged, who were armed with letters of immunity. In his opening statement defense counsel stated he intended to prove that the identity of these witnesses and the existence of the offenses were learned from statements made by the accused; that these statements were made during accused’s interrogation by Government agents, which included the use of a polygraph machine, preliminary to granting him a higher security clearance; that prior to the interrogation, accused was not only not given a warning that anything he said might be used against him but was assured his answers would be treated with the highest degree of confidence and would not be made the subject of criminal prosecution. The defense called two witnesses and the prosecution immediately objected to their questioning on the grounds that accused’s said statements were not in evidence. The Government did not admit to the truth of the defense offer of proof but argued that even if it be true it was immaterial because the prosecution’s case rested upon the testimony of witnesses procured through the use of accused’s statements rather than upon the statements themselves. After a lengthy out-of-court hearing the law officer sustained the prosecution objections whereupon the defense abandoned its effort to bring into evidence the facts alleged in its offer of proof.
The accused objected to his denial of cross-examination stating that the only way he could ascertain the identity of other desired witnesses was to be permitted to fully cross-examine these two.
We granted upon three issues: (1) whether the accused had been granted any immunity; (2) whether the convicting evidence was admissible; and (3) whether accused’s substantial rights were prejudiced by refusal of the court to receive any evidence showing the circumstances surrounding discovery of the offenses and the evidence. For reasons which will appear subsequently we are not presently concerned with the question of immunity as reversal is required by the second and third granted issues.
An accused is to be granted full opportunity to question all witnesses; to question witnesses to ascertain the identity of other desired witnesses; and to be granted such continuances as may be necessary from time to time to locate them. See Alford v United States, 282 US 687, 51 S Ct 218, 75 L ed 624.
We are interested primarily in the propriety of the Government’s action in the present case. Obviously, accused’s statements would be inadmissible in evidence because of the alleged promises of confidentiality. United States v Washington, 9 USCMA 131, 25 CMR 393. However, as noted supra, the Government chose to rest its case upon the testimony of witnesses whom the defense argued were procured through such statements.
The ramifications of permitting the use of evidence under these circumstances are dire in the extreme. It would in effect be permitting the Government to do indirectly what it is forbidden by Article 31(a), Uniform Code of Military Justice, 10 USC § 831, to do directly. If such receive our sanction there would be nothing to prevent Government agents from procuring information — such as the identity of hostile witnesses, or the location of incriminating property — from the accused by the use of force or other unlawful means and then simply rest the prosecution’s case upon the evidence procured through those statements without introducing the statements themselves into evidence at all.
Under the present state of the record, we find the convicting evidence inadmissible. While the issues in the cases from which we quote, infra, were not precisely the same as in the present case, the underlying judicial principle is identical. In Sherman v United States, 356 US 369, 78 S Ct 819, 2 L ed 2d 848, concurring opinion, it was stated:
“The courts refuse to convict ap *795entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. As Mr. Justice Holmes said in Olmstead v United States, 277 US 438, 470 (dissenting), in another connection, ‘it is desirable that criminals should be detected, and to that end that all available evidence should be used. It is also desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. . . . [F]or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.’ Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply ‘proper standards for the enforcement of the federal criminal law in the federal courts,’ McNabb v United States, 318 US 332, 341, an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.
“As Mr. Justice Eoberts convincingly urged in the Sorrells case, such a judgment, aimed at blocking off areas of impermissible police conduct, is appropriate for the court and not the jury. ‘The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal laiu. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention.’ 287 US, at 457 (separate opinion)[Emphasis partially supplied.]
In Silverthorne Lumber Co. v United States, 251 US 385, 40 S Ct 182, 64 L ed 319, it was said:
“ . . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall .not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.” [Emphasis supplied.]
And in Coplon v United States, 191 F 2d 749 (CA DC Cir) (1951), cert den 342 US 926, 72 S Ct 363, 96 L ed 690, the court stressed that:
“ . . . ‘Leads’ obtained by wiretapping may not be utilized by the prosecution, but the fact that wires were tapped does not vitiate a criminal prosecution if the government can establish to the court’s satisfaction that its proof at the trial had an origin independent of wiretapping.”
See also the language in Cash v United States, February 28, 1958 (CA DC Cir), to the effect that “evidence obtained through a coerced confession is tainted.”
We further find that accused’s substantial rights were prejudiced by the court’s refusal to allow the the defense to develop its contention that the prosecution’s case saw its inception in the accused’s alleged statements to Government interrogators.
“ . . . The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully *796employed. Once that is established— as was plainly done here — the trial judge must give oportunity, how ever closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.” [Emphasis supplied.] [Nardone v United States, 308 US 338, 60 S Ct 266, 84 L ed 307.]
Our dictum in United States v Fair, 2 USCMA 521, 10 CMR 19, to the effect that even if the admission as to the location of a lethal weapon be deemed involuntary, the gun itself would be admissible in evidence, is not controlling and does not express a sound legal principle. Likewise, paragraph 140a of the Manual for Courts-Martial, United States, 1951, is declared incorrect insofar as it states, that evidence found by means of an inadmissible confession or admission is itself admissible.
The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Air Force for action not inconsistent with his opinion. A rehearing may be ordered.
Chief Judge Quinn concurs in the result.