dissenting:
Although I agree with a substantial portion of the majority’s opinion, I must dissent from their analysis of the first two issues — ineffective assistance of counsel and the admission of the “Life Story.”
In our prior review of this case, we were required to address the issue of ineffectiveness of counsel at appellant’s first trial. Seeking adequate facts to decide the issue, we remanded the case for a DuBay-type evidentiary hearing. Our remanding order listed the issues on which we needed further information. The military judge who presided at the evidentiary hearing mistook our order as a warrant to compel surrender of any attorney-client communications between appellant and his original defense counsel. Among the communications he directed released was a detailed “Life Story” appellant wrote at his counsel's request. This hand-written statement was a complete confession of the circumstances surrounding the death of Yang.
At appellant’s second trial, the military judge’s rulings aggravated the erroneously compelled disclosure of the “Life Story” at the evidentiary hearing. Despite strenuous defense objections every step of the way, the military judge ruled the “Life Story” had to be disclosed to trial counsel, allowed trial counsel to read it to the court members under a pretense of cross-examination, and finally admitted it into evidence as appellant’s confession.
I agree with appellant’s contention that the compelled release of the “Life Story” and the rulings of the military judge at the second trial combined to deprive him of a fair trial. The only viable remedy is to set aside appellant’s second conviction.
FACTS
Mansfield prepared prosecution exhibit 65 — “Life Story” — prior to his first trial at the request of one of his defense counsel. This counsel directed Mansfield to write a narrative statement detailing his recollection of the confrontation with Yang in Korea and the events leading up to it. In his own writing, Mansfield prepared a 58-page statement that counsel later copied in a 23-*999page typed version.4 Mansfield’s lawyers treated both the handwritten and typed versions of this statement as “attorney work product” and kept them in their case files. The narrative statement told of efforts to hire a “hit man” in Korea and of the purchase of a knife by Mansfield before his meeting with Yang.
After Mansfield told his counsel the statement contained many falsities he added to try to convince them of his believability, counsel continued to press him for the true facts. Because they did not think they knew the truth, Mansfield's counsel advised him not to cooperate with the first sanity examination scheduled by the government at Yokota Air Base, Japan. However, the more counsel probed Mansfield, the more they became aware of his “preoccupations and obsessions.” Finally, Mansfield’s counsel requested a E.C.M. 706 mental examination and Doctor Vosburg convened a one-member board on 25 June 1984. He found Mansfield had a mental disorder that caused a diminished capacity to appreciate the criminality of the offense and an inability to conform his conduct to the requirements of the law. The defense did not provide Doctor Vosburg the “Life Story” at the time of the mental examination.
When Mansfield related another scenario his counsel believed closer to the truth, they prepared another statement of Mansfield’s recollection of the confrontation with Yang and the events preceding it. They provided this second version to civilian psychiatrists examining Mansfield before his first trial. The second mental examination that occurred at Travis Air Force Base, California in September 1984 also received this version. Missing from the second version was any information about trying to hire a “hit man” or buying a knife before meeting with Yang. However, during his personal interview with a civilian psychiatrist, Doctor Cobum, Mansfield told about considering hiring a “hit man.”
At Mansfield’s first trial, his counsel planned a two-pronged defense. First, they intended to hold the prosecution to its burden of proving beyond a reasonable doubt that Mansfield had killed Yang. Second, they planned to show Mansfield’s lack of mental responsibility. For the second prong, they had arranged for the testimony of Doctor Vosburg and Doctor Cobum. Both psychiatrists were prepared to testify that, at the time of the offense, Mansfield had a diminished capacity to appreciate the criminality of the alleged offense and lacked the capacity to conform his conduct to the requirements of the law.
After the trial began, but before the defense called their witnesses, they discovered, much to their surprise, that Doctor Coburn’s interview notes mentioned Mansfield trying to hire a Korean “hit man” to kill Yang. Doctor Cobum was also surprised and informed the defense that he had not considered the “hit man” information in arriving at his opinion and preparing his report. However, after considering this information, he did not change his opinion.
At this point, Mansfield’s counsel faced a real quandary. The military judge had already ruled that, if the defense called expert witnesses to testify about mental responsibility, the prosecution could discover any of Mansfield’s statements used to arrive at the opinions. The defense team understood this to mean, if Cobum testified, the “hit man” statement would be given to the prosecution for use in their cross-examination. Fearing that this disclosure would devastate their case, Mansfield’s counsel elected not to present a mental responsibility defense.
The appeal from the first trial raised an issue of ineffective assistance of counsel. Part of the claim of ineffectiveness relied upon the failure of Mansfield’s counsel to present a mental responsibility defense. Our response to the claim of error was to order an evidentiary hearing to develop the facts related to the question of Mansfield’s *1000lack of mental responsibility and ineffective assistance of counsel.
When the evidentiary hearing convened, the parties addressed the impact of the claim of ineffectiveness of counsel upon Mansfield’s attorney-client privilege. Defense and government counsel agreed a waiver of the privilege would apply, but that evidence adduced at the hearing could only be used to resolve the issue of ineffective assistance of counsel as it related to the mental responsibility defense. The military judge ruled that communications between Mansfield and his prior counsel would be included in this limited use waiver. Mansfield’s hearing defense counsel maintained a continuing objection to waiver of the attorney-client privilege for any other use and any waiver broader than necessary to resolve the issue.
The “Life Story,” that became prosecution exhibit 65 at the second trial, came to light during the evidentiary hearing testimony of one of Mansfield’s counsel from his first trial. Upon hearing the testimony, government counsel asked for the document. Before producing it, Mansfield’s hearing counsel made it clear that he was providing the statement only because of the military judge’s previous ruling finding waiver of such attorney-client communications. Counsel also restated his objection to any use of the document outside the scope of the evidentiary hearing ordered by the Court. The document that would later become prosecution exhibit 65 was marked as hearing exhibit 7 and provided to the government counsel. The second narrative version was marked as hearing exhibit 8. Both exhibits were appended to the record of the evidentiary hearing.
At Mansfield’s second trial, his counsel contended the government could not use any evidence that they had gained access to, or become aware of, through the limited waiver of attorney-client privilege during the evidentiary hearing. He argued that Mansfield only waived the privilege to show the ineffective assistance of his counsel at the first trial and use of this compelled evidence in the second trial would violate due process.
Both the government and the defense agreed that the evidence introduced at the evidentiary hearing warranted “limited use” protection. However, the parties’ understanding of “limited use” was different. Mansfield’s counsel argued that waiver of the attorney-client privilege only applied to prove ineffective assistance of counsel and the privilege still existed and barred use of the evidence for any other purpose. The government maintained that, once waived, the privilege no longer existed. In their view, only limited admissibility protection under Mil.R.Evid. 105 remained to protect the hearing evidence.
The question of the use of hearing exhibits 7 and 8 arose early in the second trial. Before trial, Mansfield’s counsel requested discovery of mental examination reports of their client held by the government. See R.C.M. 701(a)(2)(B). In return, defense counsel gave the government reports of mental examinations of Mansfield prepared by the defense expert consultants. See R.C.M. 701(b)(4). However, trial counsel wanted more. They asked for any statements of Mansfield related to the reports of the defense experts. Although neither trial counsel participated in the first trial or the evidentiary hearing, they were aware of the existence of certain statements prepared by Mansfield, particularly the “Life Story,” and wanted access to them.5
Defense counsel made a motion in limine to prevent trial counsel from getting either hearing exhibit 7 or 8. Defense counsel relied upon the ruling of the trial judge in Mansfield’s first trial and an analogy with Mil.R.Evid. 302(c) which prohibits release of an accused’s statements given during a R.C.M. 706 compulsory mental examination until the defense first introduces them into evidence.
*1001Trial counsel opposed the motion in limine, taking a position that any statements made by Mansfield to the defense experts were incorporated into the experts’ reports and were discoverable under R.C.M. 701(b)(4). In their view, no compulsion existed in the accused’s interviews with defense experts, and Mil.R.Evid. 302 provisions designed to protect compelled statements were inapplicable.
In disposing of the motion in limine, the military judge limited government’s access to defense experts before trial to the same extent as their access to the members of a sanity board. He ruled, once a defense expert appeared to testify, trial counsel could interview him about the basis for his opinion and review any statements, including those of the accused, the expert relied upon in forming his opinion.
At the close of the government’s case, Mansfield’s counsel stated they were proceeding with an insanity defense. They told the military judge they had provided the government Mansfield’s statements to the defense experts and defense experts were available for interviews by the government. The court-martial then adjourned for a few days to allow the government an opportunity to examine the released documents and interview the defense experts.
When the court-martial reconvened, Mansfield’s defense counsel objected to the government using hearing exhibits 7 and 8 to cross-examine defense experts or for rebuttal. The government opposed any limits on the use of hearing exhibit 7 or 8. The military judge agreed with the government and ruled that both hearing exhibit 7 and 8 could be used by the government in the cross-examination of the defense experts.
Trial counsel used the statements extensively in his cross-examination of the defense experts. Finally, after the last defense expert (Doctor Cobum) testified, trial counsel offered hearing exhibit 7 into evidence as prosecution exhibit 65. Over the objections of defense counsel, the military judge admitted the exhibit as a confession of appellant with no restrictions on its use.
ANALYSIS AND THE LAW
On appeal to us, appellant argues he was denied a fair trial because of knowledge the government gained from the evidentiary hearing and the military judge’s error in admitting prosecution exhibit 65.
The majority’s approach to the asserted errors does not directly address four issues preserved for review and raised before us. These four issues are:
1. Whether the compelled release of hearing exhibit 7 at the evidentiary hearing: entitled the government to use this statement at appellant’s second trial?
2. Whether appellant’s defense counsel at his second trial waived any privilege or other protection entitled hearing exhibit 7?
3. Whether the government was properly permitted to use hearing exhibit 7 during cross-examination of the defense expert witnesses?
4. Whether prosecution exhibit 65 should have been admitted into evidence?
1. Was the Government Allowed to Use Hearing Exhibit 7 Based on the Compelled Release at the Evidentiary Hearing?
In my view, the government could not rely on the compelled release of hearing exhibit 7 at the evidentiary hearing as the basis for using this exhibit at Mansfield’s second trial. Following the evidentiary hearing, the exhibit was still protected by either the attorney-client privilege or a limited use protection.
Appellant contends compelling him to waive the attorney-client privilege and release hearing exhibit 7 to the government at the evidentiary hearing gave the government an unfair advantage from that point forward. He argues the government’s further prosecution of appellant’s case was “tainted” by the government's knowledge of the statement. In support of their argument, they use an analogy to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), which requires the government to show affirmatively that *1002none of its evidence at a subsequent prosecution is derived, directly or indirectly, from previously provided immunized testimony. See United States v. Boyd, 27 M.J. 82, 86 (C.M.A.1988).
I agree with the majority that the Kastigar analogy does not apply to appellant’s situation. However, I do not agree a compelled waiver of the attorney-client privilege to prove ineffective assistance of counsel completely eliminates any privilege for the disclosed matter. When an erroneously compelled disclosure of attorney-client privileged statements occurs, the statements are not admissible against the holder of the privilege. Mil.R.Evid. 511(a). Therefore, the key to whether any privilege remained for appellant’s statements is the correctness of the military judge’s ruling at the evidentiary hearing.
On 5 March 1986, we issued an unpublished order for an evidentiary hearing to resolve factual questions regarding the defense of mental responsibility and appellant’s claim of ineffective assistance of counsel. Our order required the military judge conducting the hearing to make specific findings of fact on the following questions:
What was the extent of trial defense counsel’s pretrial investigation of the facts and law relating to an insanity defense? Was the defense of insanity a “created” defense? If so, ... what role if any, did the appellant have in its creation? What role, if any, did the report of Doctor Yosburg play in preparing an insanity defense? During the course of counsel’s investigation what if any information did they verify about a “hit man?” If so, when? Did counsel instruct appellant to withhold information from Doctor Coburn about a “hit man?” If so, when? Why did counsel wait until after the trial had begun to discuss this information with Doctor Cobum? Why was the 22 page statement by the appellant prepared? When? Why did counsel assert at trial that the military judge’s discovery order regarding the 22 page statement changed the defense strategy? What, if any, advice was given by defense counsel concerning release of the 22 page statement at the trial? Why did counsel assert in their Goode response that the military judge’s ruling regarding the statement was error? When and how did Doctor Coburn learn of the “hit man” information? What impact did this information have on his professional opinions?
The military judge conducting the hearing ruled that our order required the release of any attorney-client privileged communications bearing on the issues of ineffective assistance and the insanity defense. Further, he specifically required the defense to release both versions of appellant’s written narrative statements. Appellant’s counsel made it clear that he was only releasing appellant’s statements because the military judge ordered their release. Counsel maintained that the only portions of these statements arguably relevant to the hearing were any references to use of a “hit man.” He maintained a continuing objection to the release or use of attorney-client privileged communications any broader than necessary to resolve the specific issues this Court referred to the evidentiary hearing. Despite these objections, the military judge directed release of the entire text of both narrative statements to the government representative.
Our order of 5 March 1986 did not require Mansfield or his counsel to surrender any attorney-client privileged documents. Answers to all the questions asked in the order were available from the hearing testimony of appellant’s original defense counsel, Doctor Vosburg, and Doctor Coburn without requiring release of any written statement Mansfield had made to his counsel. The military judge interpreted our order more broadly than necessary and erroneously compelled appellant to reveal the attorney-client communications contained in hearing exhibits 7 and 8. Absent a subsequent voluntary waiver, neither hearing exhibit 7 or 8 should have been admitted against Mansfield at his second trial. Mil.R.Evid. 511(a).
Further, even if the military judge’s ruling were correct, the government agreed, *1003at both the evidentiary hearing and appellant’s second trial, that privileged matters released at the hearing still had limited use protection under Mil.R.Evid. 105. The military judge at the second trial adopted this reasoning and ruled this limited use protection remained in effect at the second trial.
2. Did Appellant’s Counsel at the Second Trial Cause a Waiver of Any Protection Still Accorded Hearing Exhibit 7?
The military judge at the second trial ruled that defense actions during the second trial waived any remaining protection accorded hearing exhibit 7. He found this waiver occurred because the defense expert witnesses had reviewed both versions of appellant’s narrative statements. That ruling contradicted a previous ruling and, under the circumstances of this case, was in error.
Earlier, in response to defense counsel’s motion in limine to prevent disclosure of hearing exhibits 7 and 8, the military judge had ruled the government’s access to defense experts and members of mental examination boards would be the same. He ruled, prior to the defense electing to proceed with a mental responsibility defense, the prosecution could interview the defense experts to the same extent they could interview mental examination board members. He further held, once a defense expert appeared to testify, the government could reinterview the defense experts and review reports and statements of the accused the expert relied upon in arriving at his opinion. At the time of this ruling, the defense had not yet given notice under R.C.M. 705(b)(2) of an intent to rely upon the defense of lack of mental responsibility. Although such notice is normally required before beginning trial on the merits, the military judge had allowed the defense to postpone notice until the close of the government’s case.
According to this ruling, appellant’s statements were not available to the government until the witnesses appeared to testify and then only if the experts were relying upon the statements. The military judge’s ruling in response to the motion m limine was correct with respect to government access to appellant’s statements. Mil.R.Evid. 705 provides an expert may give opinion testimony and give his reasons for the opinion without prior disclosure of the underlying facts or data, unless the military judge requires otherwise. The rule further provides: “The expert may in any event be required to disclose the underlying facts or data on cross-examination.”
The only incorrect aspect of the original ruling was with respect to allowing the government to interview the defense experts before the defense elected a mental responsibility defense.
Up until the point the defense experts identified their experts as potential witnesses for the mental responsibility defense, revealing appellant’s statements to the civilian psychiatrists hired by the defense or to Doctor Vosburg certainly did not waive any protection accorded the statements. The civilian psychiatrists were defense consultants hired with the approval of the convening authority and Doctor Vosburg had conducted a mental examination under R.C.M. 706(b).
Expert consultants act as members of the defense team or defense representatives. United States v. Turner, 28 M.J. 487 (C.M.A.1989); United States v. Langston, 32 M.J. 894 (A.F.C.M.R.1991). Confidential communications by an accused or his attorney to such consultants will not waive the protection accorded such communications. See United States v. Toledo, 25 M.J. 270, 275 (C.M.A.1987), cert. denied, 488 U.S. 889,109 S.Ct. 220,102 L.Ed.2d 211 (1988), aff'd on rehearing, 26 M.J. 104 (C.M.A.1988); Langston, 32 M.J. at 896; United States v. King, 32 M.J. 709 (A.C.M.R.1991); Mil.R.Evid. 502(b)(3). As long as they are consultants for the defense, the experts may not be interviewed by the prosecution or be compelled to disclose privileged communications made to them by the accused or other members of the defense team. Id. If the defense consultants later become expert witnesses, they may be interviewed by the prosecution and cross-examined about the basis for any *1004opinion they may offer. Turner, 28 M.J. at 489; Toledo, 25 M.J. at 274 n. 2; Mil. R.Evid. 706(a); R.C.M. 703(d); Mil.R.Evid. 705.
Statements of an accused made to a member of a board conducting a mental examination under R.C.M. 706(b) are privileged. Mil.R.Evid. 302(a). This privilege continues until the accused first introduces into evidence the statements or derivative evidence. Mil.R.Evid. 302(b)(1). Further, the prosecution cannot obtain an accused’s statements to a R.C.M. 706 mental examination board until the defense first offers such statements into evidence. Mil.R.Evid. 302(c). Government interviews with members of a mental examination board may not inquire into statements the accused made to the board unless the accused first offers such statements into evidence or voluntarily discloses them to the government. United States v. Littlehales, 19 M.J. 512 (A.F.C.M.R.1984); Mil.R.Evid. 302(c); R.C.M. 706(c)(5).
Despite the ruling’s erroneous granting of early interviews of defense expert consultants, there is no evidence of record that it caused any prejudice to appellant. Because of the limitations on the extent of such interviews with the defense experts, it appears trial counsel did not interview the experts prior to the defense giving notice of a mental responsibility defense.
Unfortunately, prejudice did flow from the military judge’s later abandonment of the other aspect of his motion in limine ruling. Forgetting that he had earlier ruled statements would not be discoverable unless expert witnesses had relied upon them, he erroneously held that the mere review of hearing exhibit 7 by defense expert witness waived any protection accorded the exhibit.
In arguing against such waiver, defense counsel asserted that they had no choice in allowing their experts to review the statements. Both Doctors Cobum and Vosburg were required to review both statements as part of their testimony at the evidentiary hearing. According to counsel, the defense also had no choice with respect to the other two psychiatrists, Doctors Beck and Strefling. After the military judge’s ruling on the motion in limine, the defense felt they had to take reasonable precautions to prepare Doctors Beck and Strefling for possible cross-examination on the exhibit. However, defense counsel continued to strongly argue that none of the defense experts were relying on the statement as a basis of their opinions. In effect, the defense team was trying their best to stay within the parameters of the military judge’s motion in limine ruling, still present a viable mental responsibility defense, and avoid the trial counsel’s use of hearing exhibit 7. However, their strategy was to no avail when the military judge changed the rules.
The military judge should have stuck with his earlier ruling and allowed the defense an opportunity to show their expert witnesses’ opinions did not rely on hearing exhibit 7. Repercussions of the military judge’s changed views laid the basis for trial counsel’s improper and devastating use of hearing exhibit 7 in cross-examination of defense expert witnesses.
3. Could the Trial Counsel Use the Narrative Statements to Cross-examine the Defense Psychiatrists?
In compliance with the military judge’s rulings, defense counsel released both hearing exhibits 7 and 8 to trial counsel after notification of a mental responsibility defense and that the defense experts would testify in support of the defense. However, after the release, defense counsel strongly objected to trial counsel using the exhibits to cross-examine defense expert witnesses. The defense contended that the statements were still protected by the attorney-client privilege. They acknowledged defense experts had reviewed the statements, but contended the experts were not relying on them to form an opinion as to appellant’s mental responsibility.
In response to this objection, the military judge erroneously ruled, as long as the defense experts had seen both narrative statements and any privilege with respect to them had been waived, trial counsel could use them in cross-examination.
*1005The mere release of the narrative statements to trial counsel did not necessarily give him the authority to use the statements outside his interviews with the defense psychiatrists. His ability to use the statements in cross-examination depended upon the circumstances of each psychiatrist’s access to the statement and the extent, if any, the expert relied upon the statement to form his opinion.
Doctors Beck, Cobum, and Strefling had no previous involvement with any mental examination ordered under R.C.M. 706(b). Neither Beck or Strefling were potential expert witnesses at the first trial and they did not testify at the evidentiary hearing. They reviewed both versions of the narrative statement to prepare them for expected cross-examination. Appellant related portions of the first narrative statement to Doctor Cobum during interviews in preparation for the first trial. Coburn also reviewed both versions during his testimony at the evidentiary hearing. None of the three testified that he relied upon either narrative statement as a basis for his opinion.
During Beck’s direct examination, there was only one reference to hearing exhibit 7. Near the end of direct examination, after he had already expressed his opinion and the basis for it, defense counsel asked Doctor Beck four hypothetical questions based on facts similar to some portions of hearing exhibit 7.
In response to each question, Doctor Beck either explained how the posed hypothetical would support his opinion or that it did not change his opinion.
Cross-examination of Doctor Beck was extensive. After exploring the reasoning behind Doctor Beck’s opinion, trial counsel began asking Doctor Beck about “an approximately 22-and-a-half page, single-spaced, legal size document — typed single-spaced, which was taken verbatim from some 58 pages of handwriting.” When the witness stated he was not sure what was being referred to, the trial counsel replied: “I’ll hand you one. It’s titled, ‘Life Story.’ ” Trial counsel continued with the following:
TC: And this, sir, is what we purport to be a statement by the accused that he had made originally to his defense counsel, in fact at that point in time?
Wit: Yes.
TC: Sir, you’re under the impression, are you not, that this was in fact the accused’s first version to the defense counsel at that time?
After Doctor Beck replied that he did not know the version or the order of the statement, trial counsel tried twice more to get him to agree that the document was Mansfield’s first version of events.
Once everyone’s attention was fully drawn to the document handed to Doctor Beck, trial counsel proceeded line by line, page by page through the statement. For every question, trial counsel read from the statement and then had Doctor Beck agree that those words were in fact in the statement. This procedure continued for 22 pages of record until trial counsel finally arrived at the last page of the statement. Other than the first question, there were no attempts to relate the questions to any portion of Doctor Beck’s opinion. Trial counsel never asked Doctor Beck if the quoted portions of the statement affected his opinion.
Doctor Strefling was a military psychiatrist at the Fort Leavenworth, Kansas Disciplinary Barracks. His only reference to the statement during direct examination was after he had given his opinion and the basis for it. Defense counsel then asked if Strefling were aware of statements by appellant and whether he had considered them. He replied affirmatively.
The cross-examination of Doctor Strefling was not as extensive. Trial counsel made only one direct reference to either narrative statement and that reference only dealt with the nature of appellant’s contacts with Un-Cha Haney before and while he was in Korea.
Doctor Coburn’s direct examination briefly referred to the narrative statements. After he expressed his opinion, defense counsel asked about his familiarity with “statements attributed to Sergeant *1006Mansfield that have been referred to as Hearing Exhibits 7 and 8?” Defense counsel asked if he were aware that one of the statements referred to discussions about hiring someone to kill Yang and to the purchase of a knife that may have been used in the killing. He replied that he was, he had considered them, and they did not alter his opinion.
Doctor Coburn’s cross-examination about the first version of the narrative statement was almost as extensive as Doctor Beck’s. Some 18 pages of cross-examination ask about hearing exhibit 7 and whether Doctor Coburn was aware of specific quotes from the statement. Trial counsel asked the questions in the format of “Are you aware ... ?” Doctor Coburn was not asked if the statements formed any basis for his opinion or if consideration of them changed his opinion. With few exceptions, no attempt was made to relate the “Are you aware” questions to any portion of Doctor Cobum’s opinion.
Doctor Vosburg reviewed both versions of the narrative statement during his testimony at the evidentiary hearing. The only reference to either statement during Doctor Vosburg’s direct examination was the following:
Q. Sir have you had occasion to read a document that has been attributed to Sergeant Mansfield?
A. You mean the Exhibits 7 and 8?
Q. It’s been called variously Exhibits 7 and 8, or Life Story.
A. Yes, I have.
Q. You read such a document?
A. Yes.
Q. And have you considered a — the impact of what’s contained within that document in your diagnosis of the case?
A. Yes, I have.
Q. And what effect has that had upon you diagnosis and your opinions?
A. I’ve kept the same opinion.
Doctor Vosburg’s cross-examination concerning the narrative statements was brief. Trial counsel asked him if he was aware of the 58 page handwritten “Life Story.” He then asked about Vosburg’s awareness of references in the statement to discussions with a person in Korea to kill Yang for money and references to buying a knife before meeting with Yang. No references were made to the second version of the statement.
Mil.R.Evid. 703 allows an expert witness to base an opinion upon facts or data of the type reasonably relied upon by experts in the particular field of his expertise. The facts or data relied upon need not be admissible in evidence.
Although cross-examiners have great leeway to inquire into the basis of an expert’s opinion, the right to do so is not unlimited.
First, the expert only has to disclose “the underlying facts or data” for his opinion. Mil.R.Evid. 705. The military judge recognized this when he originally ruled on the defense motion in limine to prevent trial counsel’s discovery of the statements. In that ruling, he decided that the trial counsel could only discover the statements upon which a defense psychiatrist “relied in arriving at his decision.”
Second, trial counsel cannot use cross-examination of an expert to “smuggle” hearsay or uncharged misconduct into a case. See United States v. Cole, 29 M.J. 873 (A.F.C.M.R.1989), aff'd, 31 M.J. 270 (C.M.A.1990); United States v. Neeley, 21 M.J. 606 (A.F.C.M.R.1985), aff'd, 25 M.J. 105 (C.M.A.1987).
In affirming Neeley, Judge Cox endorsed the recommendation of Saltzburg, Schinasi, and Schlueter to use Mil.R.Evid. 403 as the means to resolve the admissibility of evidence elicited as part of the basis for an expert’s opinion under Mil.R.Evid. 703 and 705. Neeley, 25 M.J. at 107; S. Saltzburg, L. Schinasi, & D. Schlueter, Military Rules of Evidence Manual 595 (2d ed. 1986). Other federal courts considering the issue under Fed.R.Evid. 703 and 705 applied the balancing test of Fed.R.Evid. 403 to determine the admissibility of hearsay or uncharged misconduct as a basis for an expert’s opinion. See, e.g., United States v. Wright, 783 F.2d 1091 (D.C.Cir.1986); United States v. Gillis, 773 F.2d 549 (4th Cir.1985).
*1007To apply the balancing test under Mil. R.Evid. 403, the questions are: Is the proffered evidence relevant? If so, does the danger of unfair prejudice created by the testimony outweigh its probative value? United States v. Wingart, 27 M.J. 128 (C.M.A.1988); Neeley, 25 M.J. at 107. When performing the balancing test, the possible motives of counsel in eliciting the evidence may also be examined. Cole, 29 M.J. at 875; Neeley, 25 M.J. at 107.
The military judge in this case made two significant errors in ruling that trial counsel could use appellant’s narrative statements to cross-examine the defense psychiatrists. First, he did not consider whether the opinions of the defense psychiatrists were even partially based on the statements. Second, he never performed a Mil. R.Evid. 403 balancing test. The record shows the only matters he considered before ruling were whether a privilege still protected the statements and whether the expert witnesses had reviewed the statements.
The military judge’s ruling that mere review6 of statements transforms such statements into a basis or “underlying facts or data” ignores the clear wording of Mil.R.Evid. 705. Under the facts of this case, forcing disclosure of the narrative statements and then allowing cross-examination on them really stretched the meaning of “underlying facts or data.”
Further, when considering the admissibility of such highly prejudicial evidence, the military judge must not overlook the Mil. R.Evid. 403 balancing test. The information trial counsel sought to elicit through cross-examination on the narrative statements was certainly relevant. It concerned the story of the events leading up to the offense and the offense itself in appellant’s own words. Portions of the statements were relevant to every element of the offense and the mental responsibility defense.
However, appellant’s narrative statements were not the only source of this information. Nearly all of it was available to trial counsel through the testimony of witnesses and documents introduced by the prosecution. Trial counsel could have used the information in cross-examination without attributing it to a statement of appellant.
On the other side of the R.C.M. 403 balancing scale are the danger of unfair prejudice and the motives of trial counsel to elicit the evidence. Allowing trial counsel to use the appellant's own detailed handwritten communication to his attorneys to cross-examine the defense experts was fraught with potential for abuse by trial counsel and improper interpretation by the members. Further, the record shows this danger was not merely speculative. Without any pretense of challenging the validity of the opinion of the first defense expert, trial counsel used the cross-examination merely to read “the accused’s first statement to his defense counsel” to the court members. Trial counsel was not using the statement to attack the credibility or the bases of the defense psychiatrist’s opinion, but in an obvious attempt to put the statement before the members as an admission or confession. Such a practice was condemned in United States v. Parker, 15 M.J. 146, 153 (C.M.A.1983), as an improper use of a statement provided to examining psychiatrists.
Performing the balancing test the military judge failed to do, I find the danger of unfair prejudice clearly outweighs the probative value of allowing trial counsel to use appellant’s narrative statements in cross-examination.
4. Should Prosecution Exhibit 65 Have Been Admitted into Evidence?
After the defense’s evidence, trial counsel offered hearing exhibit 7 into evidence as prosecution exhibit 65. The government argued for admitting the statement on the *1008disingenuous theory that, once the defense experts reviewed the statement and testified about it, the entire statement was admissible as a confession of appellant. The majority opinion noted this theory of completeness in their analysis concerning admission of the statement. For authentication of the statement, trial counsel asked the military judge to take judicial notice of the evidentiary hearing and this Court’s decision in Mansfield I. Specifically, trial counsel relied on evidentiary hearing testimony of Mansfield’s counsel from his first trial describing how he had Mansfield prepare the narrative for him. Trial counsel also argued that the limited use protection accorded the statement at the evidentiary hearing no longer existed after the defense voluntarily revealed it to their expert witnesses.
Mansfield’s counsel strongly objected to the admission of prosecution exhibit 65. First, counsel again asserted that none of the defense experts relied upon the statement as a basis for their opinions.
Second, counsel maintained no foundation for the exhibit existed outside the evidentiary hearing. He argued that using the evidentiary hearing as the foundation was totally inappropriate. The evidentiary hearing was ordered to develop evidence necessary to determine the effectiveness of Mansfield’s representation at his first trial. The statement offered as prosecution exhibit 65 was an attorney work product before the government’s representative at the evidentiary hearing had convinced the hearing military judge that it was pertinent to the issue of ineffective representation. Now the government was using this compelled release of the statement at the evidentiary hearing as the basis to introduce the statement at trial as a confession of Mansfield.
The military judge admitted prosecution exhibit 65. In doing so, he found defense waiver of the limited use protection accorded the statement at the evidentiary hearing. He ruled that waiver occurred when defense experts jtestified they had reviewed and considered the statement in forming their opinions. He took judicial notice that the authentication of hearing exhibit 7 occurred at the evidentiary hearing. He found the statement was a confession or an admission by a party-opponent and was not hearsay, citing Mil.R.Evid. 801(d)(2)(A). Finally, he ruled that the relevance of the statement outweighed its potential prejudice.
The military judge’s admission of prosection exhibit 65 was erroneous for four reasons.
First, a theory of completeness offers no valid basis for admission of prosecution exhibit 65. In the recent case of United States v. Cannon, 33 M.J. 376 (C.M.A.1991), the Court considered admission of an entire statement under the “rule of completeness” of Mil.R.Evid. 106. The Court held this rule did not justify admission of a statement containing uncharged misconduct because a witness was impeached during cross-examination on a portion of that statement. Cannon, 33 M.J. at 383. Cannon’s rationale applies to trial counsel’s introduction of prosecution exhibit 65.
Second, admission of prosecution exhibit 65 during the government’s rebuttal was improper. The exhibit did not qualify as rebuttal to the defense’s case and admitting it as a confession of appellant was error.
Trial counsel offered prosecution exhibit 65 after the conclusion of the defense’s evidence. Evidence presented by the prosecution at this stage of the trial would have to qualify as rebuttal evidence unless the trial judge granted leave to reopen the government’s case in chief. See R.C.M. 913(c)(1). No such leave was requested or granted.
Testimony of the defense psychiatrists did not deny the existence of prosecution exhibit 65 or disagree with any of the quotes trial counsel attributed to it. In fact, as trial counsel read line by line from the narrative statement, the psychiatrists readily admitted that the statement contained every detail trial counsel read. Therefore, the exhibit did not “explain, repel, counteract, or disprove” any of the testimony of the defense experts and was *1009not proper rebuttal. See United States v. Callara, 21 M.J. 259 (C.M.A.1986); United States v. Wirth, 18 M.J. 214, 218 (C.M.A.1984); United States v. Strong, 17 M.J. 263, 266 (C.M.A.1984).
Third, the government could not introduce prosecution exhibit 65 as appellant’s confession. Mansfield created prosecution exhibit 65 as an attorney-client communication in response to inquiries from his counsel. It was not intended to be “an acknowledgment of guilt” to agents of the government. See Mil.R.Evid. 304(c)(1). Any waiver of the attorney-client privilege or other protections arising out of the evidentiary hearing was limited.
The extent of such waiver should have been strictly restricted to the purposes provided by Mil.R.Evid. 705. Disclosure of the facts or data underlying an expert’s opinion has a purpose under Mil.R.Evid. 705. That purpose is to allow the party achieving the disclosure to use the underlying facts or data in cross-examination to probe the validity of the opinion. See S. Saltzburg, supra, 605; S. Saltzburg & M. Martin, Federal Rules of Evidence Manual 118, 124 (vol. 2, 5th ed. 1990). Using an accused’s statements provided to psychiatrists for consideration in forming an opinion does not make such statements admissible confessions. Parker, 15 M.J. at 153.
In Parker, the accused made statements during a compulsory mental examination ordered under paragraph 121, Manual for Courts-Martial (1969 rev). The defense subsequently provided the results of the mental examination, including the statements, to a civilian psychiatrist they had hired. At trial, the Parker trial counsel cross-examined the civilian psychiatrist on the statements, but never introduced them into evidence. On appeal, Parker maintained that trial counsel improperly used his compulsory statements to the mental examination to cross-examine the defense civilian expert.
The Parker court held, trial counsel had properly used the statements in the context of attacking the credibility of the civilian psychiatrist “rather than being an obvious attempt to put the statements qua statements before the members as admissions or a confession." 15 M.J. at 153 (emphasis added). Further, in a footnote, the Parker Court specifically rejected a lower court decision holding an accused’s statements to government psychiatrists, after advice of rights under Article 31, UCMJ, 10 U.S.G. § 831, admissible on the merits of the case. 15 M.J. at 152 n. 12; United States v. Duwors, 6 M.J. 957 (N.M.C.M.R.1979).
Although the “Life Story” did not originate in the protected atmosphere of a compelled mental examination, it came about in the protected status of an attorney-client communication. It was first revealed in its entirety to the government and Doctors Coburn and Yosburg under the “compelled” circumstances of the evidentiary hearing. Similarly, the defense contended that revealing it to Doctors Beck and Strefling was equally compelled by the prior circumstances of the case and the military judge’s ruling. I would find the reasoning of the Parker case rejecting admitting an accused’s statements to examining psychiatrists as an “admission” or “confession” controlling under the circumstances before us in appellant’s case.
Fourth, the military judge’s ruling allowing the admission of prosecution 65 overlooked an important aspect of the foundation for the exhibit. To authenticate the exhibit, he took judicial notice of Mansfield’s prior counsel’s testimony at the evidentiary hearing. Limited use or Mil. R.Evid. 511 protection for that testimony had not been waived. Unlike the statement itself, the former attorney’s testimony had no role in the defense psychiatrists’ preparation for expected cross-examination or in forming any part of their opinions. Further, there was no mention of the testimony during direct or cross-examination of the psychiatrists. This testimony was still protected and it could not be used at appellant’s second trial by the prosecution or the military judge for any purpose. Without this testimony, inadequate foundation existed to establish prosecution exhibit 65 as a confession or admission of appellant.
*1010CONCLUSION
Contrary to the majority’s opinion, I would find appellant was denied a fair trial by the military judge’s rulings allowing the prosecution to use appellant’s statement to his counsel for cross-examination and to introduce it as appellant’s confession. I also would find this error to be highly prejudicial. Article 59(a), UCMJ, 10 U.S.C. § 859(a).
First, the statement went to the court members as an admission or confession of the accused without any limiting instruction. The military judge provided no explanation of its origin or purpose.
Second, it is obvious the government relied heavily on prosecution exhibit 65 to prove the facts of the killing of Yang and as critical evidence to dispel appellant’s defense of lack of mental responsibility. Trial counsel made extensive use of it during closing argument to attack the credibility of the defense expert witnesses and to undermine their opinions. The government’s own experts relied on it to support their opinions and to attack the opinions of the defense experts. Trial counsel also referred to it in closing argument to show proof of the elements of the offense, to counter arguments for a lesser included offense, and to attack the possible defenses of voluntary intoxication, self-defense, and partial or full mental responsibility.
The prejudice resulting from the erroneous use and admission of appellant’s narrative statement requires setting aside of his conviction and sentence.
. The "Life Story" or first narrative statement by Mansfield is referred to as a 22-page or 25-page statement in our order and at various points during the evidentiary hearing and the second trial. An examination of the actual exhibit shows the typed version to be 23 pages.
. The record does not reveal how the trial counsel became aware of Mansfield’s statements. They could have read the evidentiary hearing transcript, been told of the statements by the hearing government counsel, or they could have read about them in our first opinion in this case.
. This was despite the defense argument that the defense experts’ exposure to the statements was not at the choice of appellant or his counsel. Some of the experts reviewed the statements as a result of the evidentiary hearing and others were shown them because the judge’s earlier rulings made cross-examination on them a good possibility. The defense always maintained the experts were not relying on the statements as a basis for their opinion.