(dissenting) :
I dissent.
In United States v Cotton, 13 USCMA 176, 32 CMR 176, I set forth at length my reasons for concluding that an instruction to the effect that the law officer’s ruling “does not conclusively establish” the voluntary nature of an accused’s pretrial statement was prejudicially erroneous. There I declared :
“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.”
In this case, the risk that the court members so read the law officer’s advice is made doubly apparent by the fact that they were instructed only that “Each of you, in your deliberation upon the findings of guilt or innocence, may come to your own conclusion as to the voluntary nature of this statement,” whereas, in Cotton, supra, the law officer stated that each court member “must come to your own conclusion” concerning the same subject. (Emphasis supplied.) By his use of permissive language alone, the law officer issued an open invitation to the court members to consider his ruling as positive evidence that the confession was in fact voluntary and to vote only on whether that ruling should be overturned. Thus, it is even clearer here that we should reverse and order a rehearing, and I must, therefore, express my continued disagreement with my brothers’ conclusion that the law officer’s advice was not prejudicially erroneous.
As I would reverse on the basis of the instruction on voluntariness, I need express no view with respect to the remainder of the issues before us.