(dissenting):
I dissent.
Neither the Uniform Code of Military Justice nor the Manual for Courts-Martial, United States, 1951, makes specific reference to the admissibility of Article 32 testimony at trial. Articles 49(d)1 and 50(a),2 Code, supra, 10 *366USC §§ 849, 850, respectively, provide for the use of depositions and testimony before a court of inquiry, under certain conditions. Paragraph 1456,3 Manual, supra, sets forth the conditions under which former trial testimony may be admitted.
The question is not new, however, as it was before us as long ago as United States v Eggers, 3 USCMA 191, 11 CMR 191. There, we. held that verbatim testimony of a witness, taken at an Article 32 pretrial hearing at which the accused was represented by counsel and had the opportunity to cross-examine, could be used at the court-martial trial of the accused when the witness was unavailable to appear and. testify in person. In Eggers, the witness had died before trial. And in United States v Burrow, 16 USCMA 94, 36 CMR 250, we approved the use of such testimony where the witnesses were not present at trial, they were foreign nationals and not amenable to process by United States authorities and where the prosecution had made a good faith effort to secure their voluntary appearance.
The admission of Article 32 testimony was held to be error in United States v Obligación, 17 USCMA 36, 37 CMR 300, where, although the witness was more than one hundred miles away from the place of the trial, the prosecution had made no effort to secure her appearance. And in United States v Ledbetter, 18 USCMA 67, 39 CMR 67, we also rejected the use of such testimony on the ground that the pretrial investigation, at which this evidence was secured, did not meet the requirements of a “full-fledged hearing” as described in Pointer v Texas, 380 US 400, 407, 13 L Ed 2d 923, 928, 85 S Ct 1065 (1965). Cf. United States v Tomaszewski, 8 USCMA 266, 24 CMR 76, where the accused did not have counsel at the Article 32 investigation.
In Ledbetter, as in this case, the witness was present but refused to testify. Since we reversed on other grounds, the Chief Judge and I reserved the question of whether a witness who refuses to testify is unavailable for the purpose of admitting into evidence his former testimony. My brothers now answer the question in the affirmative. I disagree.
Were it not for the fact that in United States v Barcomb, 2 USCMA 92, 6 CMR 92, we dealt with the admissibility of a deposition and not Article 32 testimony, the decision in that case would be dispositive of the issue. There, as here, the witness was present but, ex*367cept for a few answers; refused to reply to trial counsel’s interrogation. The deposition had been previously obtained in the belief that she would be physically unavailable to testify. After repeated efforts to persuade her to testify, the law officer held her in contempt and excused her as a witness. Thereupon, her deposition was received in evidence over defense counsel’s objection. We reversed on the grounds that her refusal to testify did not fit any of the special circumstances, listed in Article 49(d), under which deposition testimony is admissible.
It was on the basis of our opinion in Barcomb, and the reference to Article 49(d) by the Chief Judge in his separate concurrence in United States v Burrow, supra, that the board of review, in this case, held inadmissible the Article 32 testimony of the witnesses, who, relying on their right to silence under Article 31, refused to testify. The board, in its opinion, perceived no reason to distinguish between the rules concerning use of deposition testimony and the corresponding rationale under which the admissibility of Article 32 testimony is governed.
We specifically rejected this view when urged upon us by the Government in United States v Obligación, supra. As we there said, at page 38:
“. . . The taking of depositions necessarily contemplates their use in evidence at trial in lieu of an unavailable witness, whereas, as we have noted, testimony taken at the pretrial investigation is not normally recorded for evidentiary purposes.” [Emphasis supplied.]
It is because Article 32 testimony “is not normally recorded for evidenti-ary purposes,” that I believe my brothers err in this case. It is a fact, well-known by lawyers and judges, that at a preliminary hearing, the civil counterpart of the military investigation conducted under Article 32, the main issue is the establishment by the Government of probable cause sufficient to hold a defendant for trial. When that is shown, cross-examination is seldom, if ever, used by the defense attorney. He purposefully withholds his questioning until the witness takes the stand and testifies before the triers of fact. A preliminary hearing, therefore, is not, in my opinion, the meaningful confrontation envisioned in Pointer v Texas, supra. The situation in Pointer was similar to that which pertained in United States v Tomas-zewski, supra, where we reversed because that accused was not afforded lawyer counsel at the Article 32.
The right to effective confrontation is not to be lightly regarded. It is a right guaranteed by the Sixth Amendment to the Constitution. Pointer v Texas, supra. In the case at bar, defense counsel had every reason to believe that the witnesses would testify at trial for prior to their testimony at the pretrial hearing they were informed of their right to silence under Article 31. They, at that time, declined to assert that right. Defense counsel undoubtedly was surprised by their claim at trial. The use of the Article 32 testimony not only foreclosed any further and more searching cross-examination, but deprived the triers of fact of the opportunity to observe the demeanor of the witnesses on the stand, a factor to be considered in assessing credibility.
Use of the Article 32 testimony was not the only avenue of recourse open to the Government. The convening authority could have granted one or more of the witnesses immunity from prosecution and thereby secured their testimony at trial. United States v Kirsch, 15 USCMA 84, 35 CMR 56. While I dissented in Kirsch, that holding is the law of this Court. Had immunity been granted to one or more of the witnesses, they could not then have refused to testify. Refusal under such circumstances would have subjected them to punishment under the Code. United States v Kirsch, supra.
Where it is within the power of the Government to eliminate the reason for the unavailability of the testimony of the witness, I would not allow the Article 32 testimony to be admitted *368into evidence. In my view, the Government, in this case, did not make a good faith effort to secure the trial testimony of the witnesses. The Government’s good faith effort was the basis for our holding in United States v Burrow, supra. The requirement to make such an effort is, in my opinion, the import of the Chief Judge’s separate concurrence in Burrow, where he said, at page 100:
. 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.”
Cf. United States v Obligación, supra.
I would affirm the decision of the board of review.
“Art. 49. Depositions
“(d) A duly authenticated deposition taken upon reasonable notice to the other parties, so far as otherwise admissible under the rules of evidence, may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or military board, if it appears—
(1) that the witness resides or is beyond the State, Territory, Commonwealth, or District of Columbia in which the court, commission, or board is ordered to sit, or beyond 100 miles from the place of trial or hearing;
(2) that the witness by reason of death, age, sickness, bodily infirmity, imprisonment, military necessity, nonamenability to process, or other reasonable cause, is unable or refuses to appear and testify in per*366son at the place of trial or hearing; or
(3) that the present whereabouts of the witness is unknown.”
“Art. 50. Admissibility of records of courts of inquiry
“ (a) In any case not capital and not extending to the dismissal of a commissioned officer, the sworn testimony, contained in the duly authenticated record of proceedings of a court of inquiry, of a person whose oral testimony cannot be obtained, may, if otherwise admissible under the rules of evidence, be read in evidence by any party before a court-martial or military commission if the accused was a party before the court of inquiry and if the same issue was involved or if the accused consents to the introduction of such evidence.”
“145. DEPOSITIONS; FORMER TESTIMONY.
“b. Former Testimony — When at any trial by court-martial including a rehearing or new trial, it appears that a witness who has testified in either a civil or military court at a former trial of the accused in which the issues were substantially the same (except a former trial shown by the objecting party to be void because of lack of jurisdiction) is dead, insane, too ill or infirm to attend the trial, beyond the reach of process, more than one hundred miles from the place where the trial is held, or cannot be found, his testimony in the former trial, if properly proved, may be received by the court if otherwise admissible, except that the prosecution may not introduce such former testimony of a witness unless the accused was confronted with the witness and afforded the right of cross-examination at the former trial and unless, in a capital case, the witness is dead, insane, or beyond the reach of process,”