(concurring in the result) :
I concur in the result.
I agree with the result reached by my brothers. However, my conclusion is reached by a route so different from theirs that I find it necessary to state my view.
I do not agree with the Government’s contention that the accused was not denied an out-of-court hearing on volun-tariness as defense counsel indicated his desire to present evidence touching voluntariness before the court-martial; nor that the comments of counsel and the law officer, regarding an out-of-court hearing, related to the direct testimony of a Government witness, and could not reasonably be construed as depriving the accused of an opportunity to present his own evidence in camera. Neither do I agree with the conclusion reached in the majority opinion that defense counsel “abandoned his initial request.”
The colloquy quoted by my associates shows clearly that defense counsel requested an out-of-court hearing. There is no indication in the colloquy that the law officer construed the request in the narrow light contended for by the Government, nor does it support the majority’s conclusion of abandonment of the request. The law officer stated clearly that he understood defense counsel desired to examine into the question of voluntariness out of the presence of the court-martial.
A request for an out-of-court hearing should not be considered on such a restricted and technical basis. The language of the request is not to be construed in the narrow or technical manner in which a common-law indictment might be construed. In asking for an interlocutory hearing, defense counsel — for reasons of which seasoned trial lawyers are well aware- — -seemed to be following a prudent course in seeing that the existence of a pretrial statement by accused was not highlighted for the court members. It seems clear that the subsequent course of the colloquy may have been determined by the remarks of the law officer.
Upon the request being made by defense counsel, the law officer should have granted the out-of-court hearing and his failure to do so is error. United States v Young, 10 USCMA 249, 27 CMR 323; United States v Cates, 9 USCMA 480, 26 CMR 260; United States v Dicario, 8 USCMA 353, 24 CMR 163. See also United States v Cooper, 2 USCMA 333, 8 CMR 133; United States v Jones, 7 USCMA 623, 23 CMR 87. Being of the view that the failure of the law officer to hold an out-of-court hearing on the voluntariness of accused’s out-of-court statement is an error of law, I proceed with an evaluation of whether such error materially prejudiced the substantial rights of the accused. Article 59, Uniform Code of Military Justice, 10 USC § 859.
After the colloquy quoted in the majority opinion, defense counsel, in open court, proceeded to a thorough cross-examination of the agent to whom the out-of-court statement had been made. In this cross-examination defense counsel inquired into aspects of alleged coercion, unlawful influence, and undue or improper inducement. Among other items, these included questions as to alleged threats of pretrial confinement, and threats that accused must either make a statement of denial or admission, or subject himself to a lie detector test.
At the conclusion of the examination of the agent, the accused elected to testify to the limited extent- of the question of voluntariness of the statement. Under direct and cross-examination, accused testified at length as to all of the circumstances surrounding the giving of his statement and as to the area of duress, coercion, unlawful influence, and undue and improper inducement, including alleged threats of pretrial confinement and that accused must either make a statement of denial or admission or submit to polygraph examination. He stated that, as a result of such im-portunities and pressures, he did submit to a lie detector test and, as a result thereof, accused made his extrajudicial *617statement. The defense also produced other witnesses in connection with the inquiry into voluntariness. It should be observed that this question was fully and thoroughly developed, and sharp conflicts exist between the facts as stated by the agent and the accused. No contention is raised that additional facts could be developed on a rehearing of this issue. Cf. United States v Dicario, supra.
In view of the development of the issue at trial, as outlined above, it is to be noted that, both at the time of the admission of accused’s statement, and again in his final instructions to the court-martial, the law officer fully and correctly instructed on voluntariness.
Under those circumstances, it would appear this record presents the same question as that posed in United States v Evans, 13 USCMA 598, 33 CMR 130, this day decided. My views on the subject may be found in that opinion. In light thereof, I would hold in this case that the denial of an out-of-court hearing did not materially prejudice the substantial rights of the accused.
Further, I desire to disassociate myself from any decision of the hypothetical cases posed by my colleagues. I shall pretermit my determination thereof until such questions may hereafter be properly presented to us.
Nevertheless, and for the reasons set forth above, I conclude the certified question should be answered in the negative. I, therefore, join my brothers in reversing the decision of the board of review.