(concurring in result):
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.” Reflecting a preference for face-to-face confrontation at trial and a concern for the right of cross-examination, the Confrontation Clause of the Sixth Amendment contemplates:
“a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.”
See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980), quoting from Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895).
If read literally, the Confrontation Clause “would require, on objection, the exclusion of any statement made by a declarant not present at trial.” 100 S.Ct. at 2537. However, just as the hearsay rule has many exceptions, there are many exceptions to literal application of this Clause. Thus, in Mattox v. United States, 146 U.S. 140, 151, 13 S.Ct. 50, 53, 36 L.Ed. 917, 921 (1892), the Supreme Court stated that “[djying declarations are admissible” against a defendant in a federal criminal trial-although, of course, the declarant is not available to confront the defendant at trial or to be cross-examined by his counsel. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court upheld the admissibility, as substantive evidence against the defendant, of testimony that had been given previously by a prosecution witness at a preliminary hearing.1 Similarly, the Supreme Court ruled in Ohio v. Roberts, supra, that an Ohio state court had properly admitted in evidence the transcript of testimony given at a preliminary hearing by a witness who was unavailable at trial.2
Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), concerned the admissibility of testimony by a prosecution witness that an alleged accomplice of the defendant had told the witness about an *74incriminating statement made to him by the defendant. The evidence had been received pursuant to provisions of a Georgia statute which, as interpreted by the state courts, went beyond the usual scope of the hearsay exception for statements by co-conspirators; it not only allowed reception of statements made in the course of and in furtherance of the conspiracy but also those made during a subsequent period when the conspirators were engaged only in concealment of the criminal enterprise.
In seeking to explain the exceptions to literal application of the Confrontation Clause of the Sixth Amendment, the Supreme Court reiterated in Ohio v. Roberts, supra 100 S.Ct. at 2539:
“The focus of the Court’s concern has been to insure that there ‘are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant,’ Dutton v. Evans, supra, at 89 [91 S.Ct. at 220], and to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,’ California v. Green, supra, 399 U.S., at 161, [90 S.Ct. at 1936]. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these ‘indicia of reliability.’ ” [Mancusi v. Stubbs,] 408 U.S. [204], at 213, 92 S.Ct. 2308 at 2313, 33 L.Ed.2d 293]. [1972].
Moreover, as further explained in Ohio v. Roberts, supra:
The Court has applied this “indicia of reliability” requirement principally by concluding that certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the “substance of the constitutional protection.” Mattox v. United States, 156 U.S., at 244, 15 S.Ct. at 340, 39 L.Ed. 409.[3] This reflects the truism that “hearsay rules and the Confrontation Clause are generally designed to protect similar values,” California v. Green, 399 U.S. at 155, 90 S.Ct. at 1933, 26 L.Ed.2d 489, and “stem from the same roots,” Dutton v. Evans, [supra 400 U.S. at] 86, 91 S.Ct. at 218, 27 L.Ed.2d 213. It also responds to the need for certainty in the workday world of conducting criminal trials.
Since 1960, this Court has held that the right of confrontation applies to service personnel. United States v. Jacoby, 11 U.S. C.M.A. 428, 29 C.M.R. 244 (1960). Moreover, like the Supreme Court, we have recognized that there are many exceptions to the literal application of this right-many of those exceptions conforming substantially to well-recognized hearsay exceptions. On several occasions, we have ruled that laboratory reports, like the one involved in the case at hand, are admissible, even though no witness is called to testify concerning the laboratory tests which are reported. United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979); United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974); United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972).
In light of these precedents, the answer to the specified issue is obvious. That issue is: “Whether the Government failed to meet its burden of proof in establishing that the substance taken from the appellant was a controlled substance because it failed to produce the examining chemist?” 5 M.J. 254 (1978). Of course, the Government met its burden of proof since, even over defense objection, the laboratory report offered was admissible as a business record, without *75calling as a witness the person who had performed the tests.4
The real issue in the case concerns the possible violation of another of the accused’s Sixth Amendment rights-“the right ... to have compulsory process for obtaining witnesses in his favor.” This right is also recognized in the Uniform Code-at least, implicitly-by the provisions of Article 46, Uniform Code of Military Justice, 10 U.S.C. § 846, concerning “opportunity to obtain witnesses and other evidence.”
The right to compulsory process has been discussed extensively by Professor Westen in several landmark articles. See Westen, The Compulsory Process Clause, 73 Mich.L. Rev. 71 (1974); Compulsory Process II, 74 Mich.L.Rev. 192 (1975); Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L. Rev. 567 (1978). As he points out, the Compulsory Process Clause had become almost a dead letter after 170 years of desuetude, before it was given new life in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). There, in a murder trial, defendant Washington had proposed to call as a defense witness an alleged accomplice, who would have testified that he, rather than Washington had fired the fatal shot, and that this had been done against the defendant’s wishes. He was prevented from doing so by a Texas statute which rendered “accomplices” incompetent to testify for one another. In reversing the conviction, the Supreme Court ruled that the right to compulsory process includes not only the right to compel a witness’s attendance in court but also to have the benefit of that witness’s testimony unrestricted by any such statutory disqualification of the witness.
From his analysis of Washington v. Texas, supra, and other cases concerning compulsory process, Professor Westen reaches this conclusion:
Compulsory process is more important to the accused than confrontation because in most cases it can substitute for confrontation, while confrontation cannot replace the functions served by compulsory process. The essential difference between the two is their allocation of the burden of producing witnesses. Confrontation allocates to the prosecution the burden of producing witnesses against the accused, while compulsory process allocates to the accused the burden (and the means) of producing witnesses in his favor. Thus, unless a prosecution witness has become unavailable, the right of confrontation only relieves the defendant of the burden of issuing subpoenas for the witnesses whose out-of-court statements are introduced against him. Abolition of the right of confrontation would not automatically result in trials by affidavit and hearsay; it would simply shift to the defendant the administrative burden of producing the adverse declarants for cross-examinations, along with producing the separate witnesses in his favor. Abolition of compulsory process, on the other hand, would be more drastic: It would leave the defendant face to face with the witnesses against him, but with no means to produce the witnesses in his favor.
The compulsory process clause is also broader than the confrontation clause. Confrontation is exclusively a trial right. It has nothing to do with the manner in which the defendant gathers, preserves, or produces evidence. It merely guarantees him the right to insist that evidence *76against him be presented at trial through direct testimony or its equivalent. Compulsory process, on the other hand, is more than a trial right. It gives the defendant the right to discover the existence of witnesses in his favor, to produce them in court, to introduce their statements into evidence, and, if necessary, to compel them to testify over claims of privilege. In sum, it constitutionalizes the defendant’s right to be heard in his defense.
73 Mich.L.Rev. at 183-84 (emphasis added).
One example of the breadth of the right to compulsory process is adverted to in footnote 12 of the Opinion of the Court in United States v. Strangstalien, supra, 7 M.J. at 229, as follows:
12. See Flores v. State, 491 S.W.2d 144 (Tex.Cr.App.1973), where the director of a crime laboratory which had performed an examination refused to testify for the defense unless retained as an expert. Citing the Sixth Amendment right to compulsory process of witnesses, the Texas Court of Criminal Appeals held the trial judge erred in failing to instruct the witness to testify about the previously conducted examination. Cf. Westen Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567, 619 n.143 (1978).
Professor Westen suggests, “What distinguishes a witness ‘against’ the accused from a witness ‘in his favor’ is not the content of the witness’ testimony but the identity of the party relying on his evidence.” Thus, “witnesses ‘in his favor’ are all the remaining witnesses whom a defendant wishes to examine after the prosecution has confronted him with its witnesses.” 91 Harv.L.Rev. 604-05. Accordingly, the business records exception to the hearsay rule-and to the Confrontation Clause-allows the records to be introduced in evidence by the prosecution, even though the defense may then have the declarant subpoenaed as a witness to testify about preparation of the documents. See id. at 618-19. In that event, the witness being called by the defense may be examined with leading questions and impeached. To deny defense counsel such latitude in cross-examination would tend to infringe on the accused’s right to compulsory process. See 74 Mich.L.Rev. 232-33. Cf. Fed.R.Evid. 806; Mil.R.Evid. 806.
Of course, an accused “has no constitutional right to subpoena witnesses whose testimony is immaterial to his defense.” 74 Mieh.L.Rev. at 213; see id. at 213-18. Presumably the burden falls on the defense to show the materiality of a witness whom it has requested. However, the Court already has taken a firm position that a person who has prepared a laboratory report that is introduced in evidence by the prosecution is a material witness for the defense. Otherwise, I cannot explain these unequivocal statements by the Court:
(a)
Although we allow the entry into evidence as a properly authenticated business entry, this does not stop the introduction of evidence regarding inaccuracy of procedures or incompetency of the examiner. Upon affirmative request, the analyst may be summoned for cross-examination on his statement. There was no affirmative request, in this case; lack of objection to introduction of Exhibit 5 waived the contest.
United States v. Strangstalien, 7 M.J. at 229.
(b)
In Evans, we emphasized that the admission into evidence of a laboratory report as a business entry does not bar the accused from attacking its accuracy. We said that if the accused “wishes to do so, he may have the analyst summoned ” to examine him as to his competency and as to the regularity of the procedure employed. 21 USCMA at 582, 45 CMR at 356 (emphasis added). The point of the statement is that as the business entry is admissible without the in-person testimony of the declarant, the accused can assert his right to cross-examination by *77calling the declarant as a witness and, as provided in rule 806 of the proposed Federal Rules of Evidence, “examine him on the statement as if under cross-examination.” 56 F.R.D. at 329.
United States v. Miller, 23 U.S.C.M.A. at 250, 49 C.M.R. at 383.
(c)
If he wishes to do so he may have the analyst summoned and “attack the regularity of the test procedure and the competency of the ... [person] who ran the test ... But these factors ... ‘go to the weight of the evidence rather than to (its) initial admissibility.’ ” Thomas v. Hogan, supra at page 361. In the present case, the accused not only made no effort to attack the analysis of the pills, but twice stated that he had no objection to receipt of the exhibit in evidence. Under the circumstances, we find the laboratory report was properly admitted in evidence.
United States v. Evans, 21 U.S.C.M.A. at 582, 45 C.M.R. at 356.
Paragraph 115a of the Manual for Courts-Martial requires that a request for the personal appearance of a witness be made in writing and contain “(1) a synopsis of the testimony that it is expected the witness will give, (2) full reasons which necessitate the personal appearance of the witness, and (3) any other matter showing that the expected testimony is necessary to the ends of justice.” Under some circumstances a rigid application of these requirements would produce a conflict with an accused’s statutory and constitutional right to compulsory process. For example, with hostile witnesses, it is often impossible to foresee what testimony will be given by the witness before he has been exposed to cross-examination. Thus, such a witness could not be compelled by the defense to appear in court against his will because it would be impossible to meet the literal requirements of paragraph 115a. However, under my reading of the Court’s language in Strangstalien, Evans, and Miller, the very circumstance that a laboratory report like that in the case at hand will be offered in evidence establishes the materiality of the witness who prepared that report; and the accused’s right to his presence in court cannot be defeated by invoking the language of paragraph 115a.
On the other hand, I consider that paragraph 115a embodies some legitimate policy determinations made by the President in the proper exercise of the authority conferred on him by Article 36, UCMJ, 10 U.S.C. § 836. For one thing, the requirement that a written request for a witness be made in advance of trial enables the Government to consider alternatives that it may wish to pursue. Conceivably, the Government might choose to proceed to trial without relying on a laboratory report. In that event, there would remain no basis for the defense to compel attendance of the requested witness, since his testimony promises to be material only if the laboratory report is introduced by the prosecution.5 Secondly, the Government might be able to make arrangements for a second test of the questioned substance to be made-this time at a laboratory where the person performing the test would be readily available to testify at the trial. Thirdly, arrangements might be made for the witness to be brought from the place where the test was performed to testify at the court-martial.6 Finally, there may be some other means for satisfying the accused’s right to have the testimony of the witness produced at trial.7 The important point is that the Government is entitled to prescribe reasonable rules whereunder it will have adequate opportu*78nity either to arrange for the presence of the witness or to explore any legally permissible alternative to the presence of the witness.
A second concern may also have motivated the promulgation of paragraph 115a of the Manual. As an advocate for his client, a defense counsel may sometimes anticipate that cost and difficulty to the Government in proving its case might lead either to dismissal of charges or the offer of an attractive plea bargain. Thus, there is a temptation to require the prosecution to arrange for the attendance of witnesses even when the defense counsel does not have any good faith belief that their testimony will benefit his client. It is not unreasonable to require that a defense counsel make some effort prior to trial to communicate with witnesses-even hostile witnesses-whose attendance at trial he is requesting. Discovery rights are broad in military law; and the contact with the witness may be made by letter, by telephone, in person, through associate defense counsel in the place where the witness is located, by deposition, or otherwise. See United States v. Killebrew, 9 M.J. 154 (C.M.A.1980). In any event, an effort should be required of defense counsel to discover before trial the expected testimony of a witness, so that the request for presence of the witness at trial will not appear to be merely a tactic intended to harass the Government into dismissal of charges or the offer of a favorable pretrial agreement.
Applying the foregoing observations to the case at hand, I conclude that the defense counsel was remiss in making a last-minute request for counsel without previously attempting to communicate with the witness. However, in line with the wording of Manual paragraph 115a, the trial counsel and military judge attempted to impose upon the appellant an undue burden of demonstrating the contents of the expected testimony. Where the defense seeks to have produced for purposes of cross-examination as a hostile witness a chemist who has prepared the laboratory report on which the Government relies to prove its case, the materiality of his testimony need not be demonstrated in detail. Furthermore, I would not apply a defense waiver in this case since the unqualified language of this Court’s prior opinions might reasonably have led to the course pursued by defense counsel. Especially is this true since the Manual in paragraph 115a prescribes rules which, if literally applied in the present context, would unduly restrict an important right of the appellant.
Of course, we do not know what the testimony of the requested witness might have been. Thus, on the present record it is impossible to determine beyond reasonable doubt whether the failure to produce this witness was prejudicial to appellant.8 However, in the present case, since defense omissions helped induce the error, the Government should have an opportunity to demonstrate beyond reasonable doubt that testimony adduced from the witness by cross-examination would not have induced the trier of fact to make findings more favorable to the appellant. To provide such an opportunity, a limited hearing is now appropriate, wherein the requested witness can be cross-examined in detail as to his qualifications, the test procedures employed, the test results, and any other matter relevant in any way to the subject of the laboratory report introduced by the Government. See United States v. Killebrew, supra; United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
Accordingly, I join with Judge Cook in ordering the disposition of this case.
. Of course, in that case the witness was testifying at trial and so was subject to cross-examination about his earlier statements.
. A dissent questioned whether unavailability had been adequately established by the prosecution.
. At this point in the text appears footnote 8 to the Opinion of the Court which states:
See, e.g., Pointer v. Texas, 380 U.S., at 407, 85 S.Ct. at 1069, 13 L.Ed.2d 923 (dying declarations); Mattox v. United States, 156 U.S. 237, 243-244, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895) (same); Mancusi v. Stubbs, 408 U.S. 204, 213-216, 92 S.Ct. 2308, 2313-2315, 33 L.Ed.2d 293 (1972) (cross-examined pri- or-trial testimony); Comment, 30 La.L.Rev. 651, 668 (1970) (“Properly administered the business and public records exceptions would seem to be among the safest of the hearsay exceptions”).
. In its previous decisions the Court has ruled that laboratory reports like the one involved in the case at hand are business records within a well-recognized exception to the hearsay rule. United States v. Strangstalien, 7 M.J. 225 (C.M.A.1979); United States v. Miller, 23 U.S.C.M.A. 247, 49 C.M.R. 380 (1974); United States v. Evans, 21 U.S.C.M.A. 579, 45 C.M.R. 353 (1972). While the argument advanced in the dissent is directed to laboratory reports, it would apply equally to any other business record. Accordingly, even the most routine business record could not be introduced over defense objection without offering the testimony in court of every person who prepared any entry contained in that record or, in the alternative, demonstrating that any such person was “unavailable”-as that concept is described in the dissent. I cannot find anything in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), that requires such drastic consequences.
. Of course, the situation would be quite different if the defense were seeking production of a witness who made tests whose results were favorable to the accused.
. If the witness has died or for other reasons is unavailable to testify at the trial, that circumstance will not affect the admissibility of 'the laboratory test results when properly offered under the business records exception to the hearsay rule, since the evidence also falls within an exception to the Confrontation Clause, as discussed earlier in this opinion.
. Videotaped depositions taken on oral examination may be one means whereby the witness can be cross-examined extensively and his demeanor can be observed by the trier of fact.
. Since the right involved has a constitutional basis, the Government should prove beyond reasonable doubt that the error was not prejudicial. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Ward, 1 M.J. 176 (C.M.A.1975).