(dissenting):
I dissent.
I regret that, as in United States v Heilman, 12 USCMA 648, 31 CMR 234, this day decided, I must disagree with my brothers’ conclusion that it is unnecessary to reach the issue upon which we granted accused’s petition for review. It seems clear to me that this record solidly presents a controversy between two highly qualified expert witnesses on a vital issue — the mental responsibility of the accused — and that, with regard to a decisive point, the Government’s psychiatrist was permitted to testify to an opinion based upon an electroencephalogram which had been interpreted for him by another expert and which he could not himself read.
The accused was found guilty of assault with intent to commit rape, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934, and sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for five years, and reduction to the lowest enlisted grade. The findings and sentence have been affirmed. In view of the issue, it is not necessary to refer to the sordid facts recounted in the transcript other than to note that the offense occurred in a darkened alley and there was evidence that accused was severely intoxicated.
At the trial, Dr. Richard Wolf appeared on behalf of the defense. After being qualified as an expert, he testified that he had examined the accused. On the basis of this examination, a stipulation concerning accused’s physical condition, and hypothetically stated facts, he expressed the view that, at the time of the offense, accused “was in ill condition with a loss of consciousness, or absence of consciousness, with automatic reactions.” In Dr. Wolf’s opinion, accused was not responsible for the offense with which he was charged, as he suffered from a state of pathological intoxication. Following cross-examination, the questions put to the witness by the law officer clarified his former testimony and demonstrated the exact nature and basis of the diagnosis:
“Questions by the Law Officer:
“LO: Doctor, I gather that the term you give his condition is ‘pathological intoxication’, is that correct?
“DOCTOR Wole: May I speak in English ?
“Law OFFICER: You may testify in English if you can.
“DOCTOR Wolf: Pathological intoxication is not the same. Pathological intoxication is not quite the same as the German daemmerzu-stand. Daemmerzustand would mean its a state of unconsciousness who is a man near dreaming. He does not really dream, but he has a state of dreaming and he is therefore, I say, automatic actions. He is a person acting, but he does not know what he will or doesn’t know what — he is not able to plan something and therefore, he is in a form of dreaming stage. That is the special form of unconsciousness, but daemmerzu-stand in alcohol intoxication is therefore pathological because this state comes suddenly and is therefore— he comes in a state wherefore he forgets all what he do. He is not in such case responsible what he did there— he is not responsible for what he is doing. That is in all such cases, in Germany or French, England and Norway, because this state comes suddenly and a person is not — not self-control. That is not the same in ordinary state of intoxication — alcohol intoxication. This form of intoxication increases slowly — it becomes slowly — it comes slowly to the state of effectiveness, but the pathological alcohol intoxication is quite so normal and then suddenly the per*664son — ordinary, slowly increases and therefore they say such persons have no possibility of self-control and therefore they are not responsible for their doings.
“Do you understand?
“Law OFFICER: In other words, pathological intoxication, before you can have that, you have to have something wrong with the individual, other than the fact he has been drinking, is that correct?
“DOCTOR Wolf: Yes. .These conditions that you observe, almost only in cases of epilepsy heredity and to a large extent they are similar to epileptic seizures or fits. I have made a record of each sheet and I have found here that the potentials of brain are slowly, more slowly, than normal — more slowly than some forms of pathological judgment.
“Law OfficeR: Now, those sheets that you refer to, are they of the accused or just in general?
“A: (Interpreter) I have made those of Mr. Walker.
“LO: And does your ‘EKG’ show a pattern with Mr. Walker that would go along with this opinion of yours?
“A: ‘EEG,’not‘EKG’. This form of ‘EEG’ produced forms of dis-rhythm and this is actually no proof, but is found frequently with epileptics.
“Q: Was it found on the ‘EEG’ of Specialist Walker?
“A. Yes.
“Q: As I understand it, the taking of intoxicants will set this condition off, is that correct?
“A: Yes.
“Q: Is it possible to have this condition without the taking of alcohol?
“A: This very, rarely happens, but is possible. We call these stages ‘episodic’.
“Q: A person who is in this state, does he have any control over his mental faculties?
“A: In such an abnormal condition?
“Q: Yes.
“A: No.
“Q: I gather then from such a condition, he is not able to tell the difference from right and wrong, is that correct ?
“A: Yes, that’s right.
“Q: Is there any — are there any degrees to this condition? Can, on some ocassions [sic], a person be in sort of a haze, but still have some knowledge of what he is doing?
“A: No, and in this condition, it is everything or nothing. The difference is only a time period.” [Emphasis supplied.]
In addition, Dr. Wolf testified that accused was left-handed, a frequently appearing characteristic of persons with a history of epilepsy.
In rebuttal, the prosecution adduced the testimony of Dr. Sanford Weis-blatt, also an eminently qualified alienist. Concerning the scope of his examination, he noted that accused had stated that he was amnesic with respect to the incident giving rise to the charges. He then testified:
“. . . In instances, where a patient alleges amnesia, one must take steps to attempt to rule out, as best one can, the known medical and psychiatric causes for amnesia. With this in mind, I ordered an electroencephalogram and skull x-rays on an out-patient basis. A few days later, when these were obtained, I re-interviewed him on an out-patient basis, and at that time felt it would be wise to admit him to the hospital for further interviews and clinical psychological testing.” [Emphasis supplied.]
In addition, Dr. Weisblatt was questioned concerning the possible existence of a state of pathological intoxication on accused’s part:
“TC: In your interviews and examinations, did you at any time consider a condition known as pathological intoxication?
“A: Yes.
“Q: Would you tell the court what opinions you have formed as to that condition?
*665“A: I think that this will clear this up and will help the court understand how we proceed. The second entity, which I have mentioned before, that of psychomotor epilepsy, became a possibility — becomes a possibility always in situations like this, even more so in the sihiation of the accused because he had stated his mother had had epilepsy. We know that patients who have epilepsy in their family are somewhat more likely than other people to have epilepsy. Establishing this diagnosis requires not only a compatible history of observed behavior, which might occur with this condition, but also a characteristic electro-encephalo graphic picture. In the instance of Specialist Walker, the kinds of temporal brain wave activity, which are seen in instances of valid psychomotor epilepsy, were not found. We know that these can be missed if a drousy [sic] tracing is not obtained. For example, with a wake record, without any sleeping, or any electrical activity evidencing drowsyness [sic], it is possible to miss this. So, in conjunction with the Staff Neurologist, we went back over the tracing, to satisfy ourselves that there were adequate periods of drowsyness [sic] and whether there were temporal lobe spikes or not, on the tracing. There were none. We then dismissed this as a second possibility. The condition of pathological intoxication is one that is confused and disputed. Generally, what is meant by this, so far as my understanding goes, is a situation—
“A: What is meant by this term is this: when an individual, after taking a very minimal amount of alcohol, behaves inappropriately for him, this is called pathological intoxication. In order to establish this as an entity, one must first establish the minimal amount of alcohol, that amount which would not ordinarily affect a normal person to any significant degree, affected the individual involved to a very striking degree. It is common, if I may speak this way, to talk of people who just can’t drink; that one ‘wiff’ [sic] of alcohol and they aren’t themselves. This is what is intended by this term. People who behave in a manner not consonant or not appropriate to their normal behavior following very minimal amounts of alcohol. In Specialist Walker’s case, it seems apparent from his description of his behavior, his activities, during the afternoon preceeding [sic] this alleged act, that he had probably had eight to ten beers. This being the case, the possibility of pathological intoxication, namely, an excessive response to a very minimum amount of alcohol, is ruled out. Eight to ten beers is not the minimum kind of alcohol that is intended by this term.” [Emphasis supplied.]
During cross-examination, the prosecution expert admitted that he, as a psychiatrist, did not believe in the term “pathological intoxication,” because of “the implication that the name carries with it.” He admitted that a possibility of its presence “could certainly exist” in the sense “of creating a state of unconsciousness due not only to a small amount of liquor but also due to a number of other factors.” Further questioning elicited the following information :
“Q The activity as recorded on Dr. Wolf’s electro-encephalogram, indicated that it was the type of activity commonly found in epileptics. Now, I take it that this electro-encephalo-graph that you performed reached a different conclusion?
“A Yes
“Q You are in no way suggesting that Dr. Wolf could have performed a test and not reached his conclusions validly merely because your test came off the other way, I take it?
“A I have done no suggesting—
“Q No, I say you are not suggesting.
“A Might I perhaps give a word of clarification?
“Q Go ahead.
“A With regard to the reading of electro-encephalograms, there are always some differences of opinion. There exists certain patterns which *666are commonly recognized by competent people throughout the world as meaning something — something rather definite and clear-cut. There are other 'patterns which would be read by one relatively competent neurologist as probably normal, another as borderline, another as probably abnormal — the same tracing. All of these men could be competent. In general, the kind of epilepsy which is pertinent to what we are considering today — psychomotor seizures — is reflected by relatively clear-cut electroencephalographic findings having reference to a certain part of the brain. Now, though it is possible that Dr. Wolf’s tracing showed evidences of activity in this part of the brain, I would think it unlikely. I can’t deny that this was the case and certainly don’t intend to. Just that we didn’t see it. That is all I can say.
“A With regard to this particular tracing, I myself did not read it.
“Q Which one?
“A The one taken at our hospital. I didn’t read it, and I don’t consider myself qualified to do so. It was read by our hospital Staff Neurologist, who I feel is quite competent to do so.
“Indiv Counsel: I ask at this time that any statements made—
“A I can tell you—
“Indiv Counsel: I ask at this time that any statements made by this Doctor as conclusions reached by another be stricken from the record.
“Law OFFICER: What statements do you have reference to?
“Indiv Counsel: Conclusions regarding the electro-encephalogram. I was unaware of this.
“Law OFFICER: Trial counsel?
“TRIAL Counsel: Doctor, was this electro-encephalogram result used in the determination of the accused’s sanity or mental condition?
“Witness: It was used with reference to trying to rule in or rule out the possibility of psychomotor epilepsy, which I mentioned before to the court was pertinent to our ultimate findings.
“TRIAL Counsel: Was it used by the board of officers you were a member of?
“Witness : It was.
“Law OFFICER: Well, the facts have been brought out to the court. It only goes to the weight. It is apparent that the Doctor, in giving his opinion, must base it on other things —other examination by other people. The fact that this was done by somebody else, the court will certainly take into consideration the weight to be given.” [Emphasis supplied.]
From the foregoing, it would appear that the major difference in much of the two experts’ testimony was seman-tical. Dr. Wolf spoke in terms of the accused being pathologically intoxicated. Dr. Weisblatt, expressing disbelief in some of the effects of intoxication, per se, preferred to refer to the condition as psychomotor epilepsy. The important fact, however, is that — regardless of nomenclature — he excluded the existence of the condition by relying on a report to him by another person concerning the interpretation of an electroencephalogram recording the pattern of electrical discharges in the accused’s brain. On the other hand, Dr. Wolf’s contrary diagnosis was premised upon his personal recording and interpretation of an electroencephalogram. In short, accused’s whole defense of insanity turned largely upon the proper expert conclusions being drawn from the two electroencephalographic studies. Nonetheless, Weisblatt was permitted to exclude the possibility of support for Dr. Wolf’s opinion by reliance exclusively upon the interpretation given him by a witness never called to testify. In short, the critical part of his views was based upon hearsay to which prompt objection was made.
I emphasize the foregoing matters to demonstrate the pertinency of the hearsay to the narrow issue before the court-martial. The defense expert testified to a particular and unusual sort of psychic seizure. Dr. Weisblatt ex-*667eluded the possibility of this illness by testifying that, in another doctor’s opinion, accused’s electroencephalogram was normal. In light of his testimony, and quite regardless of his interviews of the accused and other testing, a foundation was neatly provided for the ultimate rejection of the accused’s defense. Accordingly, I am convinced we should reach and decide the question whether the law officer should have stricken Weisblatt’s hearsay declarations regarding the results of the electroencephalographic examination and his consequent exclusion of the existence of pathological intoxication.
Having reached the issue, I would, for the reasons which I have extensively set forth in my opinion in United States v Heilman, supra, hold that the law officer erred prejudicially in denying the defense motion to strike. The rule which I deem applicable is simply that psychiatric opinions must be based upon evidence properly presented in the record of the trial in which the expert witness testifies. If such expert opinions are based, in whole or in part, upon hearsay, they cannot be received. I would, therefore, reverse the decision of the board of review and order a rehearing.