concurring in part and dissenting in part:
I concur with the majority on the issues of speedy trial and pretrial identification. However, I do not agree that the appellant’s pretrial statements were voluntary. I agree generally with the facts set forth by the majority concerning the statements. However, in order to place the legal question in the proper perspective it is appropriate to set forth additional facts bearing on this issue.
As correctly noted by the majority, the testimony concerning the confessions is in conflict in several significant areas. The appellant testified that he was arrested at 0500 hours on 2 February 1973 by the Japanese authorities. On the same afternoon, according to the appellant, he was informed by the Japanese authorities that he had a right to a lawyer. When he attempted to obtain military counsel, however, he was told by Mr. Medoruma, the Japanese interpreter, that he had no such right because he was under Japanese jurisdiction. A similar statement was made to the appellant by a Mr. Eisenstein who was apparently employed by the American authorities in Okinawa. Instead, according to the appellant, Mr. Eisenstein gave the appellant a list of Japanese attorneys. The appellant stated that on the third day following his arrest— presumably 5 February — he indicated that he wished to be represented by Mr. Uechi, one of the lawyers on the list. The request *805was made before he made his first incriminating statement later on that day. The appellant stated that the Japanese authorities wouldn’t permit him to use the telephone to obtain counsel. He did not get to see Mr. Uechi, however, until “after his confession.”1
The testimony of the Japanese policemen was somewhat vague concerning the appellant’s request for counsel. Mr. Ikemuya, the interrogating officer, testified that he did not remember if he advised the appellant of his right to counsel or if the appellant requested counsel. Mr. Medoruma, who acted as interpreter during the interrogations, testified that the appellant was advised of his right to counsel. He testified further that he did not recall if the appellant asked to see a lawyer but he did know that at some unspecified time Mr. Uechi became the appellant’s counsel.
Four psychiatrists also testified at the trial — one for the defense, one in rebuttal for the Government, and two who examined the appellant as a result of a court-directed sanity board. The thrust of the psychiatric testimony is that the appellant was legally sane at the time he committed the acts in question. More to the point presently under consideration, however, is that three of these witnesses concluded that because of his passive personality, the appellant’s ability to adhere to the right was impaired to a greater or lesser extent. Only the psychiatrist testifying for the Government concluded that the appellant could adhere to the right without impairment. Of particular interest is the conclusion of Dr. Martin Blinder, a civilian psychiatrist who testified for the defense, that the appellant is a “passive, impulse-ridden, psychologically defective and helpless individual, hungry for shreds of recognition and self-esteem and easily led by others either for good or evil.”
To be admissible against an accused, a statement must be voluntary. That is to say, it must be the product of free choice. A statement is not voluntary if it was obtained through coercion, unlawful influence or unlawful inducement or if it was otherwise not the product of the free will of the accused. Article 31(d), Uniform Code of Military Justice, 10 U.S.C. § 831(d).
In determining voluntariness, consideration must be given to the totality of the circumstances surrounding the taking of the questioned statement. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L. Ed.2d 1037 (1961); United States v. O’Such, 16 U.S.C.M.A. 537, 37 C.M.R. 157 (1967). Some of the factors taken into account are the duration of the interrogation, e. g., Stein v. New York, 346 U.S. 156, 184, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953), United States v. Houston, 15 U.S.C.M.A. 239, 245, 35 C.M.R. 211, 217 (1965); the nature of the restraint, e. g., Chambers v. Florida, 309 U.S. 227, 238-39, 60 S.Ct. 472, 84 L.Ed. 716 (1943), United States v. O’Such, supra; the methods employed by the interrogators, e. g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), United States v. Walker, 9 U.S.C. M. A. 186, 25 C.M.R. 449 (1958), the physical and mental conditions of the suspect, e. g., Fikes v. Alabama, 352 U.S. 191, 197-98, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957), Stein v. New York, supra, 346 U.S. at 185, 73 S.Ct. 1077, United States v. Michaud, 2 M.J. 428 (A.C.M.R. 20 November 1975); and the presence or absence of counsel, e. g., Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), Crooker v. California, 357 U.S. 433, 437-38, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958).
Although there is a conflict in the testimony as to the duration of the interrogation, there is no question that the appellant was held in the Japanese jail from 2 to 26 February and that the disputed statements were made between 5 and 14 February. Not only was the appellant incarcerated in a foreign jail, but he was being held incommunicado, without counsel.2 Moreover, *806there is no indication that while he was being held by the Japanese any formal charges were filed by the civilian authorities.
As with most of the salient issues, the testimony is in conflict with respect to the methods employed by the Japanese interrogators. For example, the Japanese witnesses deny the appellant’s contention that he was led to believe he would be accorded leniency if he cooperated. The appellant’s testimony in this regard, however, is corroborated to a degree by his handwritten statement of 5 February in which he stated that he was confessing, among other reasons, “so that this killing of a soldier will not put to [sic] much on my sentence when I go to court.”
As to several points concerning the methods employed by the Japanese police, however, there is no dispute. Thus, the questioning lasted approximately six hours each day for at least ten days, excluding a recess for lunch and brief breaks in the afternoon. Moreover, the language barrier certainly must be considered in determining the state of mind of the appellant. The interrogator questioned the appellant in Japanese. This was translated into English by another member of the Japanese police force. The appellant answered in English. This in turn was translated orally into Japanese and reduced to writing in Japanese. The written statement, when completed, was then translated back into English for the appellant to sign.
Although the testimony concerning the appellant’s physical condition at the time of the statement is in dispute, there is little if any dispute as to his mental condition. He has a passive personality and is easily led by persons with stronger personalities. His ability to adhere to the right is impaired to a greater or lesser extent, according to three of the psychiatrists. While the evidence concerning the appellant’s mental condition was offered in the context of his mental responsibility for the acts charged, it has a distinct bearing on whether his statements to the Japanese authorities were voluntary. As the Supreme Court noted in Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093 (1953):
“The limits [of permissible interrogation] in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”
Turning finally to the question of counsel, the appellant admits that the Japanese police advised him of his right to remain silent and of his right to a lawyer. Those rights, however, were of little value to the appellant. Under Japanese law — at least as it was applied in this case by the Japanese police — an accused has the right to remain silent only as to particular questions. Accordingly, the police continued questioning the appellant after he refused to answer individual questions — indeed after he initially indicated he wished to make no statement at all. The appellant’s right to an attorney was also less than complete. Under Japanese law, the right does not extend to the presence of a lawyer during the interrogation. My reading of the record convinces me that the appellant, although requesting counsel, was denied the services of a lawyer until after he had confessed.
Viewing the totality of the circumstances and evaluating the conflicting testimony, I conclude that the appellant’s statements were involuntary. Without isolating any single factor, the essential ingredients leading to this conclusion include the lengthy interrogation of a soldier with a markedly weakened mental condition, conducted incommunicado in a foreign jail; the practice of the interrogators of continued questioning in the face of a desire to remain silent; the belief of the appellant that if he confessed he would obtain leniency; and the denial of the appellant’s request for counsel.
*807One further matter requires discussion. The military judge in submitting the question of voluntariness to the jury, did not instruct them on the legal significance of the medical testimony or the effect of a denial of counsel. These matters were in dispute and should have been presented to the jury so that they could make an informed decision as to the voluntariness of the confession. The failure of the judge to do so, in my opinion, constituted reversible error. See United States v. Keller, 17 U.S. C.M.A. 507, 38 C.M.R. 305 (1968).
For the reasons discussed in this dissenting opinion, I would reverse and order a rehearing.
. The appellant did not specify which confession. It would appear, however, that he was referring to his statement of 5 February.
. See Haynes v. Washington, 373 U.S. 503, 513-15, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), *806and Chambers v. Florida, 309 U.S. 227, 239, 60 S.Ct. 472, 84 L.Ed. 716 (1940), for a discussion of the coercive effect of incommunicado detention.