Opinion of the Court
Darden, Judge:
The accused's conviction of several housebreakings and larcenies, in violation of Articles 130 and 121, Uniform Code of Military Justice, 10 USC § 930 and 921, respectively, has been overturned by a board of review holding that when witnesses are present at trial but refuse to testify, they are not unavailable in the sense that would permit trial use of their former testimony given at the Article 32 investigation. Their testimony, said the board of review, supplied evidence as to the accused's unlawful entry into each of the buildings described in the specifications. The Judge Advocate General of the Air Force has, in consequence, certified the following question:
"WAS THE BOARD OP REVIEW CORRECT IN HOLDING THAT THE ARTICLE 32 TESTIMONY OF KERN, ISLER, AND WILLIAMS WAS ERRONEOUSLY ADMITTED IN EVIDENCE?"
The substance to the board of review opinion is to be found in the two following paragraphs:
"In the present case, the witnesses were indeed available for they actually appeared at trial, but refused to testify. The circumstance that a witness refuses to testify is not equivalent to a showing of unavailability so as to permit use of former testimony.
"In United States v Barcomb, 2 USCMA 92, 6 CMR 92, the United States Court of Military Appeals held that deposition testimony was inadmissible where the witness was present at trial but refused to testify. We perceive no reason to distinguish between the rules concerning use of deposition testimony and the corresponding rationale under which admissibility of Article 32 testimony is governed. Indeed, Chief Judge Quinn, in his concurring opinion in Burrow, supra, applied the standard of Article 49 of the Code, which governs the use of deposition testimony, to the use of Article 32 investigation testimony. Accordingly, under the holding of Barcomb, supra, we find that the use of Article 32 testimony of witnesses Kern, Isler, and Williams, was error."
Appellate defense counsel urge the correctness of the board's opinion, contending that United States v Burrow, 16 USCMA 94, 36 CMR 250; United States v Barcomb, 2 USCMA 92, 6 CMR 92; and United States v Obligacion, 37 CMR 861, all lead to a conclusion that the law officer erred, to the prejudice of the accused, in admitting the Article 32 testimony of the accused's accomplices into evidence after they refused to testify at trial relying upon their constitutional privilege, as well as Article 31.
Appellate Government counsel contend, on the other hand, that the board of review misapplied this Court's cases for, in military law, prior Article 32 testimony is admissible in a subsequent trial where necessary prerequisites are met; i.e., if the transcripts are verbatim, if the accused has had full opportunity to cross-examine, and if it is testimony of a person actually unavailable. In this instance, the first two conditions are met, says the Government. Of the last, overwhelming case law supports the conclusion of unavailability under present circumstances. These cases, appellate Government counsel argue, are in harmony with this Court's holding that Article 32 testimony should be treated more like former testimony or a record of a court of inquiry than a deposition. The key to the present question, contend appellate Government counsel, should be not whether the physical presence of the witness can be compelled but instead "the actual obtain-ability or compellability of his testimony." With this, we are in accord.
In United States v Ledbetter, 18 USCMA 67, 39 CMR 67, a case reversed for want of a meaningful confrontation, the Court wrote:
"It is settled that verbatim testimony of a witness taken at an Article 82 investigation, where the accused was represented by counsel, and where he had been afforded the opportunity to cross-examine the witness, is admissible if the witness is unavailable to appear and testify in person. United States v Eggers, 3 USCMA 191, 11 CMR 191; United States v Burrow, supra. Both Eg-gers and Burrow make it plain that, in the descriptive language of the United States Supreme Court, testimony such as this to be admissible must have been taken at 'a full-fledged hearing.' Pointer v Texas, 380 US 400, 407, 13 L Ed 2d 923, 85 S Ct 1065, 1069 (1965)." [Id., at page 68.]
Appellate Government counsel are correct in asserting — other essentials having been shown — that the issue at hand is narrowed factually to the question of whether a claim of privilege renders a witness unavailable so as to justify admission of his prior testimony.
In United States v Barcomb, supra, the prosecution, prior to trial, had secured a deposition on the assumption the deponent would not be available. However, she was present at trial but when called as a witness, she refused to reply to trial counsel's interrogation. Upon being excused by the law officer, her deposition was received into evidence over defense objection. Because the situation in the case did not meet the requirements of Article 49(d), Uni-foi'm Code of Military Justice, 10 USC § 849, admission of the deposition constituted error.
In contrast, in United States v Eggers, 3 USCMA 191, 11 CMR 191, when the witness died before trial, this Court held admissible the verbatim record of testimony given at a pretrial investigation. The late Judge Brosman acknowledged the lack of a specific reference in either the Uniform Code of Military Justice or the Manual for Courts-Martial, United States, 1951, on the use of reported testimony secured during the course of a pretrial investigation but saw nothing fatal in this omission, saying:
"We conceive that the pretrial investigation in military practice may properly be identified with the preliminary hearing of criminal law administration in the civilian scene. The following authorities from the latter area suppoi't fully the law officer's ruling in the case at bar: Mattox v United States, 156 US 237, 39 L Ed 409, 15 S Ct 337; Motes v United States, 178 US 458, 44 L Ed 1150, 20 S Ct 993; United States v Angell, 11 F 34; United States v Greene, 146 F 796; Baldwin v United States, 5 F2d 133, 134 (CA6th Cir); Kemp v Government of Canal Zone, 167 F2d 938." [Id., at page 194.]
In United States v Burrow, 16 USCMA 94, 36 CMR 250, this Court refused to discredit the reasoning of United States v Eggers, supra, citing as support Pointer v Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Instead, the opinion extends the use of former testimony to include that of two French nationals who testified at an Article 32 investigation but who were not amenable to process and who had refused to appear voluntarily. Cf. United States v Stringer, 5 USCMA 122, 17 CMR 122; United States v Nichols, 8 USCMA 119, 23 CMR 343.
In United States v Obligación, 17 USCMA 36, 37 CMR 300, this tribunal next concluded that no parallel could be drawn between pretrial testimony and a deposition taken under Article 49 of the Code. It was also decided that, assuming satisfaction of other prerequisites, Article 32 testimony could be used only where a showing was made of the witness's "actual unavailability to appear and testify in person." Id., at pages 38, 39. This demand is centered upon the testimonial requirement. The appearance of the conjunctive in the quoted phrase signifies that the prevailing need is not simply the witness's appearance but rather his testimony.
Civilian authorities are in accord. Numerous cases are cited that stand for the proposition that use of testimony given at a former trial or preliminary examination of a defendant on trial is permissible, "even though the witness is present in court at the later trial, if the witness invokes a claim of privilege and refuses to testify." Annotation, Former Testimony—Claim of Privilege, 45 ALR2d 1355; McCoy v State, 221 Ala 466, 129 So 21 (1930); Woodward v State, 21 Ala App 417, 109 So 119 (1926); Bridges v State, 26 Ala App 1, 152 50 51 (1933), certiorari denied, 228 Ala 72, 152 So 54, and 292 US 633, 78 L Ed 1487, 54 S Ct 718 (1934); Wyatt v State, 35 Ala App 147, 46 So 2d 837 (1950), certiorari denied, 254 Ala 74, 46 So 2d 847 (1950); State v Stewart, 85 Kan 404, 116 P 489 (1911); State v Woods, 130 Kan 492, 287 P 248 (1930); State v Reidie, 142 Kan 290, 46 P2d 601 (1935); People v Pickett, 339 Mich 294, 63 NW2d 681, 45 ALR2d 1341 (1954), certiorari denied, 349 US 937, 99 L Ed 1266, 75 S Ct 781 (1955); Exleton v State, 30 Okla Crim 224, 235 P 627 (1925); Johnson v People, 152 Colo 586, 384 P2d 454 (1963). See also 29 Am Jur 2d, Evidence, § 758.
"Availability," the court said in People v Pickett, 339 Mich 294, 63 NW 2d 681, 687, 45 ALR2d 1341, "does not mean physical presence alone, but is definitive of 'having sufficient force or efficacy for the object,' which object in this instance is the attainment of Justice through the admission of the witness's former testimony." The court then concluded that where a witness invokes the privilege against self-incrimination he "made himself as 'unavailable' as if he were deceased or absent from the jurisdiction."
The certified question is answered in the negative. The decision of the board of review is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for resubmission to a board of review. The board of review may take such action as is not inconsistent with this opinion.
Chief Judge QuiNN concurs.
"(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 person at the place of trial or hearing; or
(3) that the present whereabouts of the witness is unknown."