(dissenting):
I dissent.
While I agree with the majority opinion that the law officer placed no unreasonable limitation on defense counsel’s examination of his client in connection with the subject of voluntar-iness, I am unable to join them in their conclusion that the law officer’s instructions on the same matter were not prejudicially erroneous. In my view, he threw the weight of his ruling on admissibility into the balance against the accused, and the fact that he subsequently gave a proper advice to the military jury did not expunge the harm which had been done.
We have all concluded that an issue was raised by the evidence in this record concerning the voluntariness of accused’s confession, for it reflects his testimonial claims that he did not understand his right to remain silent under the provisions of Uniform Code of Military Justice, Article 31, 10 USC § 831; that he was continuously interrogated for six hours; that he was denied access to counsel; and that he was informed it would be better for him to confess. While there is also proof which countervails each of these contentions, a factual issue was clearly presented for resolution by the court members.
In submitting the controversy to the fact finders, the law officer gave the following instructions:
“You are advised that my ruling, receiving in evidence Prosecution Exhibits 2 and 3, the out of Court statements of the accused with respect to the offenses of larceny as alleged in Specifications 1, 2, 3 and 4, is final only on the question of admissibility. My ruling merely places the statements before the Court; it did not conclusively establish the voluntary nature of the statements. Each of you, in your deliberations upon the findings of guilt or innocence, must come to your own conclusion as to the voluntary nature of the statements. If you determine these statements were involuntary, you must refuse to consider them as evidence. You may accept the statements as evidence only if you determine that they were voluntary. You are also advised that if you find the statements were voluntary, any evidence introduced as to the voluntary or involuntary nature of the statements may be considered by you in determining the weight that you will give to the statements.” [Emphasis supplied.]
The necessary inference from the emphasized statement of the law officer regarding the effect of his admission *182of the confession is the conclusion that his ruling, while subject to being overturned by the court members in their deliberations on accused’s guilt or innocence, might properly be weighed by them as a factor in finally determining voluntariness. Phrased in other language, the instruction effectively says:
“Gentlemen, I have admitted this confession in evidence. My action should be taken into consideration by you in determining whether the confession was voluntary. However, it is not a conclusive consideration, and you must ultimately come to your own decision on the matter.”
Permitting the fact finders to weigh the law officer’s determination as evidence in deciding a factual issue whose final resolution -clearly lies only within their competence brings to bear against the accused a consideration which he can in no way overcome. It leaves the military jury in the position of concluding only whether to review and overturn the ruling of one whose authoritative position and legal training are known to them and to which they normally accord great deference. And that the members would so construe the instruction is made more likely by their well-settled authority to upset the law officer’s decisions in other areas. Code, supra, Article 51, 10 USC § 851.
It was for this reason that we paused to criticize the use of the questioned phrase in United States v Acfalle, 12 USCMA 465, 81 CMR 51, although we went on to order reversal in that case because of the law officer’s failure meaningfully to submit an issue of volun-tariness to the court-martial. Indeed, as early as 1955, in United States v Higgins, 6 USCMA 308, 20 CMR 24, at page 315, we flatly stated:
. . As we observed in United States v Dykes, 5 USCMA 735, 19 CMR 31, the law officer’s ruling that a statement was voluntarily made should not be relied on by court members as a predicate for a determination. . . . Instead, they are required to compute individually the extent to which testimony [indicates] that the statement was involuntary, , ,
The decision in Higgins, supra, expressly establishes that the law officer’s ruling plays no part in the military jury’s consideration of the issue of voluntariness. The propriety of that decision is unquestionable. The ruling of the military judge on admissibility at the most establishes only that there is a conflict in the evidence which the fact finders themselves must resolve. In effect, it means that the United States has presented evidence which tends to indicate the statement was in fact voluntary, while the accused has presented proof which indicates the contrary. The ruling itself merely establishes that there is enough to permit the court members to decide the issue, which is one solely and exclusively for their resolution. Thus, the law officer’s decision has no value as evidence itself, and it is grossly unfair to lead the fact finders to believe that, because of his legal expertise, it should be so weighed.
Indeed, the Air Force itself has recognized that the instruction before us may be so interpreted by court members. On oral argument, we were informed that the objectionable advice is no longer a part of its suggested instructions. While it is, of course, eminently proper to eliminate portions of a form solely to avoid any possible question of its validity, I suggest that the fact such action was taken is also indicative of the probability that the instruction is misleading.
As I read my brothers’ opinion, however, there does not appear to be any serious disagreement between us concerning whether the quoted portion of the law officer’s advice is erroneous. They speak in terms of imprecision of language and the doubtful nature of the advice’s phrasing, whereas I prefer to meet the problem head on by according the instruction what I believe to be its fair meaning. In short, I part company with their final conclusion that the advice, as a whole, informed the court that it was the ultimate, unfettered judge of the confession’s voluntary nature.
In this connection, my brothers rely upon language in the instruction which advised the members that the law of-*183fleer’s ruling “merely place [d] . . . the statements before the Court” and that each member must individually “come to your own conclusion as to the voluntary nature of the statements.” The difficulty which I encounter with this rationale is that, at most, the court is advised in one breath that it may consider the law officer’s ruling as evidence of voluntariness and, in the next, that the ruling merely serves to place the confessions before them. Thus, on the whole, rather than to furnish the members with one definite standard by which their deliberations are to be guided, two measures — one proper and one erroneous — are provided. In such instances, we have uniformly refused to apply the doctrine of construing instructions as an entity.
In United States v Noe, 7 USCMA 408, 22 CMR 198, at page 410, a unanimous Court declared:
“The Government argues that taken as a whole the instruction did not prejudice the accused . . . . The law is well settled that the ‘instruction as a whole’ test is inapplicable where the court has been instructed both rightly and wrongly on a material issue. The correct instruction does not cancel out the prejudicial taint of the erroneous one. If two instructions are in direct conflict and one is clearly prejudicial the rule of the correct instruction as a whole does not apply.”
To the same effect, see United States v Morphis, 7 USCMA 748, 23 CMR 212; United States v Alberico, 7 USCMA 757, 23 CMR 221; United States v Skonberg, 10 USCMA 57, 27 CMR 131; United States v Holloway, 10 USCMA 595, 28 CMR 161; United States v Walters, 10 USCMA 598, 28 CMR 164; and United States v McIntosh, 12 USCMA 474, 31 CMR 60.
This case presents an excellent example of why we have heretofore refused to apply the “instructions as a whole” concept when inconsistent rules are given to the fact finders. On the one hand, the law officer advises them that his ruling of admissibility may be considered as proof of voluntariness. On the other, he informs them that his ruling merely places the statements before the court. The question which we must answer is whether each member applied only the latter advice. And there is no way of ascertaining that they did so. In consequence, there is a fair risk that the court assumed vol-untariness in part from the ruling on admissibility and, accordingly, reversal should be ordered. United States v Higgins, supra; United States v Noe, supra.
In sum, then, I would conclude that the law officer’s instructions on volun-tariness were prejudicially erroneous. My brothers’ contrary belief leaves us in the position of determining in each future case whether the deficiency which we all recognize is deprived of harmful effect by consideration of the advice “as a whole.” This ad hoc approach provides at best but slippery ground upon which to rest the legal efficacy of the instruction here involved. All ought to remember that the law officer’s advice is designed to provide the legal framework upon which laymen are to reach their verdict in accordance with the facts which they alone determine to exist. As such, they should be precise, definite, and unambiguous. I suggest, therefore, that the other services would be well advised to follow the example of the Department of the Air Force and modify their form instructions in order to obviate the possibility of reversible action in future cases.
I would reverse the decision of the board of review.