(dissenting):
I dissent.
While, in view of our differing positions, no law is made here, I believe that in sustaining the arbitrary and capricious action of the law officer in this case, the principal opinion not only ignores the salutary holdings of this Court in United States v Cates, 9 USCMA 480, 26 CMR 260; United States v Young, 10 USCMA 249, 27 CMR 323; and United States v Lock, 13 USCMA 611, 33 CMR 143, but does so by placing a premium on the ability of a defense counsel to deceive and outface the law officer in order to obtain a later reversal, when he may in fact have been completely unable to raise any issue concerning the confession in an out-of-court hearing. These considerations may serve to satisfy others, but I find the arguments which led us in our earlier decisions to .reject the proposition now advanced 1 still suffi*608ciently rational to adhere to the principle enunciated therein.
As the majority indicates, the evidence raises an issue concerning whether accused’s confession was admissible. On cross-examination, Agent Casaus admitted that the accused asked “if he could have legal counsel in a case like this and I answered, ‘Yes.’ ” Casaus went on to declare, however, that “this affirmative answer apparently satisfied” accused “and we proceeded with the interview.” According to accused, he twice requested counsel. The initial occasion was during an authorized search of his room, at which time — in the presence of his Commanding Officer, Major Long, and his First Sergeant, Sergeant Chitty- — accused “asked him if I could have legal counsel .. . immediately after he read Article 31 to me.” There wasn’t any reply to this,” and Agent Casaus simply continued to examine the contents of the room.
After the search was completed, accused was taken to OSI headquarters. There, Casaus again advised him of his rights under Code, supra, Article 31, and asked that he write out a statement. Accused “told him . . . that I couldn’t write anything for him without the help of a lawyer.” Casaus “brushed over” it, saying, “ ‘It wasn’t needed,’ or something, and we continued on talking.” Accused’s “intent in asking was for counsel.”
That such testimony places before the court-martial the question whether accused was denied his right to counsel is clearly established. As was stated in United States v Brown, 13 USCMA 14, 32 CMR 14, at page 17:
“The law is clear under the cases previously cited that when an accused or suspect requests such information it is error to misadvise him of his right to consult with an attorney and ‘force him to submit to questioning . . . without a lawyer.’ Gunnels, supra, at page 135. If the accused seeks to exercise his right to consult with counsel during interrogation he must be afforded the opportunity to do so.” [Emphasis partially supplied.]
Simply ignoring accused’s request or passing it off as unnecessary surely does not afford the opportunity for consultation which we declared he must have. There is no need for him “to prate some magic formula.” United States v Powell, 13 USCMA 364, 367, 32 CMR 364, 367. We “look to the substance of the matter and determine whether he made known his inclination.” Powell, supra, at page 367. So viewed, accused’s testimony makes apparent his communication of a desire to seek legal advice, and denial of that right. Indeed, even Casaus’ own statement admits that accused inquired concerning his entitlement to counsel, although he goes on to declare “this affirmative answer apparently satisfied him.”
In like manner, as the principal opinion concedes, there is no doubt that the law officer, Major Shank, arbitrarily refused to accord the accused an out-of-court hearing on this issue and, in practical effect, compelled him to choose either to have the question heard before the jury or not at all. The prosecution itself joined the defense in attempting to have it granted the right to be heard before the law officer alone but was even refused the opportunity to obtain and present legal authorities in support of that position.
That the accused is entitled to such a hearing when an issue is raised concerning the admissibility of his pretrial statement is established beyond cavil by our prior cases, to which I now turn.
In United States v Cates, supra, we were faced with the refusal of a law officer to permit counsel to be heard out-of-court on the issue whether accused had been denied the right to consult with counsel during his interrogation by criminal investigators. Considering the contention that this was prejudicially erroneous, the Chief Judge and I declared, at page 482:
“There are some decisions to the effect that the failure to hold the preliminary hearing outside the hearing of the jury is not prejudicial if the evidence is sufficient to support the trial judge’s ruling admitting the pretrial statement into evidence. *609Tyler v United States, 193 F2d 24 (CA DC Cir) (1951); Tooisgah v United States, 137 F2d 713 (CA10th Cir) (1943); Ramsey v United States, 33 F2d 699 (CA8th Cir) (1929). But the later and better rule is that the duty to hold such a hearing is mandatory and the refusal to hold it when requested is reversible error. United States v Carignan, 342 US 36, 72 S Ct 97, 96 L ed 48; Wright v United States, 250 F2d 4 (CA DC Cir) (1957); Schaffer v United States, 221 F2d 17 (CA 5th Cir) (1955); Brown v United States, 228 F2d 286 (CA5th Cir) (1955).” [Emphasis supplied.]
In United States v Young, supra, the same question was before us. There, the law officer refused to allow the defense in an out-of-court hearing to complete presentation of evidence designed to establish that accused’s confession was obtained without proper warning in a military investigation. Nevertheless, the defense continued before the jury and presented all the evidence he had on the question to the fact finders. Once more, we reversed, the Chief Judge stating, at page 251:
“In United States v Cates, 9 USCMA 480, 26 CMR 260, we held it is error to deny the accused’s request for a preliminary out-of-court hearing to determine the admissibility of a pretrial statement made by him. See also United States v Carignan, 342 US 36, 38, 72 S Ct 97, 96 L ed 48; United States v Cooper, 2 USCMA 333, 8 CMR 133. The question then is whether an issue of admissibility is presented by the record of trial. If there is none, the accused obviously was not harmed by the failure to hold the preliminary hearing. In our opinion, there is an issue of admissibility.” [Emphasis supplied.]
Most recently, in United States v Lock, supra, we re-examined the problem and further discussed the Young case. Of it, we said:
“In the Young case we said that if there was no ‘issue of admissibility’ as to the pretrial • statement, ‘the accused obviously was not harmed’ by the law officer’s denial of his request for an out-of-court hearing. The statement was made after a recital of the evidence, from which it clearly appeared that, other than a difference between the accused’s version of the circumstances immediately surrounding his interrogation and that of the agents, nothing was adduced which could prejudice the court-martial against the accused. Consequently, unless the difference in the two accounts of the interrogation presented what we described as an ‘issue of admissibility,’ the accused was not harmed by the denial of his request for an out-of-court hearing. We concluded that such an issue was present. Had that isstie been decided by the law officer in an out-of-court hearing, the defense might have elected not to re-present the issue before the cotirt-martial. The law officer’s ruling prevented the defense from malcing that election. Accordingly, we held that denial of the requested out-of-court hearing was prejudicial error.” [Emphasis partially supplied.]
From the foregoing, it will be seen that we have heretofore held it prejudicial error to deny an accused the right to present evidence and contest the admissibility of his confession in an out-of-court hearing if, as in this case, an issue is raised concerning its being received. As we noted in Cates, supra, which involved, as here, a contest over whether accused was denied counsel, “the duty to hold such a hearing is mandatory and the refusal to hold it when requested is reversible error.” (Emphasis supplied.) The defense may wish to follow this course in order “to keep evidence material to the issue of voluntariness, but of possible disadvantage to him, away from the court members.” United States v Dicario, 8 USCMA 353, 359, 24 CMR 163, 169. Indeed, the Court commended counsel for doing just that in United States v Goard, 13 USCMA 588, 33 CMR 120, when it was necessary to launch a strong attack upon accused’s commander in connection with contesting the voluntariness of his confession. And if accused succeeds in having, the *610law officer rule in his favor, he of course will have prevented the court members from ever learning of the existence of the confession. The principle, therefore, is founded on reason, causes no extended delay in the proceedings, and permits a resolution of the confession problem by which the rights of all parties may be satisfactorily resolved.
The facts of this case demand application of the rule. They are precisely the same as in United States v Cates, supra, for here, too, a strong issue was raised concerning whether accused was denied counsel. Yet, the law officer would not entertain the defense request for the necessary hearing, even though counsel fully disclosed what he had in mind and indicated a desire to raise the question before the law officer alone. Indeed, even the prosecution sought to have the defense request granted but was summarily brushed aside. Thus, the accused was clearly denied the opportunity to litigate the issue before the law officer alone and was required to adduce proof and argue before the court-martial the question whether Casaus had ignored his demand for counsel. And, as recently as Lock, supra, we noted that failure to allow the defendant the right so to elect his forum was prejudicial error.
Turning to the rationale of the principal opinion, it is obvious that its reasoning at once goes astray in relying on those Federal cases whose holdings we expressly rejected in United States v Cates, supra, in favor of “the later and better rule,” as evidenced by the following language in United States v Carignan, 342 US 36, 96 L ed 48, 72 S Ct 97, at page 38:
“The United States concedes . . . that the better practice, when admissibility of a confession is in issue, is for the judge to hear a defendant’s offered testimony in the absence of the jury as to the surrounding facts. ... We think it clear that this defendant was entitled to such an opportunity to testify. . . . Such evidence would be pertinent to the inquiry on admissibility and might be material and determinative. The refusal to admit the testimony was reversible error.” [Emphasis supplied.]
True it is that Tyler v United States, 193 F2d 24 (CA DC Cir) (1951), supports the result which the Court now reaches, but that case is not only contrary to United States v Carignan, supra, but was deliberately noted and discarded by us as authority in favor of the Carignan rule. And, contrary to the implication in the principal opinion, we were and are sufficiently acquainted with Tyler to be aware that it opposed the position which we took in Cates, supra. We did not “inadvis-ably” include it in “that list” set forth in our opinion.
After relying on a principle which the Court has thrice weighed and found wanting, it is amazingly declared that the Court nevertheless fully adheres to our decisions in the Cates and Young cases. Nothing is really said as to the former, but it is sought to explain the latter away on the facts by declaring that, in it, “the law officer interrupted the testimony of the accused; refused to permit him to complete his testimony [out-of-court]; and, over objection of accused, the hearing was conducted in the court members’ presence.” In the instant case, of course, the accused was, despite proper request, not permitted to testify out-of-court at all, and the train of thought which would find prejudicial error when a law officer interrupts his testimony but none when he refuses to hear the evidence at all simply escapes me. Rather, under the latter circumstance, I would conclude that a stronger case for reversal is made out.
The truth of the matter is that the case now before us cannot be affirmed without totally impugning our former holdings. The arguments for overturning Cates, Young, and Lock, all supra, are little more than a rehash of those which were presented in the separate opinions of Judge Latimer in the first two cases. They seem no more persuasive to me now than when we rejected them before. But, even if the rule be now adopted that denial of an out-of-court hearing on the admissibility of a confession is not prejudi-cially erroneous if all the evidence is *611actually presented before the court-martial, this case still must be reversed.
As the principal opinion states, accused’s Commander, Major Long, and bis First Sergeant, Sergeant Chitty, were both present when accused allegedly requested counsel. Although each could have shed light on the transaction, neither was called as a witness before the court-martial. In view of the fact that Long was the accuser and Chitty his enlisted alter ego, it is understandable that reasons may have existed which justified defense counsel in refusing to risk their testimony before the fact finders, while he may have been willing to do so before the law officer alone. Thus, contrary to the assertion of the principal opinion, “all the evidence” on the question was not presented in open court and, under its holding on the law, a rehearing should still be ordered. I would, however, do so solely on the basis of the rule which we have uniformly heretofore followed.
In sum, then, I believe the correct principle to be that an accused is entitled as a matter of right to an out-of-court hearing regarding his confession if, as in this case, an issue is raised concerning its admissibility. And despite the position taken in the concurring opinion, prejudice follows when he is made to testify in open court, to argue the issues there, and to be deprived of his privilege of having the military judge alone rule finally on the question. Cf. United States v Cates, supra; United States v Young, supra. In this case, he satisfied these conditions and made known in every possible way to the law officer his desires. Yet, that personage in the most capricious manner refused to listen either to him or to the trial counsel who, undoubtedly seeking to protect his record, likewise solicited the hearing. In good conscience, I cannot join in a position which shows such cavalier disregard for our precedents and stamps with approval the unjudicial action of this Air Force officer.
I would reverse the board of review and order a rehearing.