United States v. Brown

17 C.M.A. 390, 17 USCMA 390, 38 C.M.R. 188, 1968 CMA LEXIS 326, 1968 WL 5365

• Court: United States Court of Military Appeals
• Decided: February 9, 1968
• Docket: No. 20,522
• Status: Published

Opinion

Opinion of the Court

FERGUSON, Judge:

In this case, as in United States v Griffin, 17 USCMA 387, 38 CMR 185, this day decided, the law officer instructed the court members that deposition testimony “is entitled to the same consideration, the same rebut-table presumption that the witness speaks the truth, and the same judgment on your part with reference to its weight as is the testimony of witnesses who have confronted you on the witness stand.”

Here, the deponent was a major prosecution witness with respect to almost all the charges against the accused. In addition, he testified on the initial issue of mental responsibility as to all such charges. In light of this, and for the reasons set forth in United States v Griffin, supra, it was prejudi-cially erroneous to instruct the court in the manner set out above. Accordingly, reversal must follow.

The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Chief Judge Quinn and Judge KlU-DAY concur.