(dissenting) :
The victim’s testimony established rape. The accused’s pretrial statements were primarily exculpatory; without them, therefore, the accused had no defense. The in-court testimony was substantially the same as the pretrial statements. Under these circumstances, I am satisfied that the accused’s failure to object to the admission in evidence of the pretrial statements; their affirmative use of these statements to aid the defense; and their testimony at trial in substantial reiteration of the pretrial assertions, constitute waiver of any infirmity in the procedure by which the statements were obtained. United States v Gustafson, 17 USCMA 150, 37 CMR 414. In my opinion, therefore, the admission in evidence of the pretrial statements did not compel the accused to testify, and their testimony may be considered within the rule of United States v Trojanowski, 5 USCMA 305, 17 CMR 305. See also my dissent in United States v Bearchild, 17 USCMA 598, 38 CMR 396.