(concurring):
With our armed forces serving in many foreign countries, it is, in my opinion, not enough to say merely that the Article 32 testimony of a civilian witness is admissible at the trial because he is not amenable to process to compel him to appear at the trial. The argument is especially hollow if the circumstances which led to the witness’ appearance at the Article 32 remain unchanged at the time of trial. I would, therefore, require, and we have in fact held, that the party offering the Article 32 testimony establish that the circumstances in the interim between the investigation and the trial have changed and all available means, compulsory or voluntary, for obtaining the presence of the witness were tried and proved fruitless. United States v Stringer, 5 USCMA 122, 17 CMR 122.
In a situation such as this, where the United States has a Status of Forces Agreement with the host nation, I would, at the very least, require a positive showing that the moving party applied to the appropriate authorities of the host nation for assistance in securing the attendance of the witness, and that the cooperation provided for by the Agreement was either denied, or proved unsuccessful in inducing the witness to appear voluntarily.
Even tested by my standards, however, the law officer had sufficient evidence before him from which to fairly conclude that the witness was unavailable, within the meaning of Article 49, Uniform Code of Military Justice, 10 USC § 849. Accordingly, I join in the affirmance of the decision of the board of review.