Opinion of the Court
Quinn, Chief Judge:
A general court-martial in Germany convicted the accused of the rape of his six-year-old stepdaughter and of assault with a means likely to produce grievous bodily harm, in violation of Articles 120 and 128, respectively, of the Uniform Code of Military Justice, 10 USC §§ 920, 928. It sentenced him to a dishonorable discharge, confinement at hard labor for life and accessory penalties. On intermediate appellate review the findings of guilty were affirmed, but the period of confinement was reduced to twenty-five years. Here, the accused contends that two rulings by the law officer constitute reversible error.
We turn first to the admission of certain evidence obtained as a result of three separate searches of the accused’s apartment. The evidence consisted of a child’s aluminum baton, bloodstained pillow cases and bed sheets, and the location of blood spots in the apartment. The defense objected to the admission of the evidence on the ground the searches were not authorized and the accused did not consent thereto. See United States v Alaniz, 9 USCMA 533, 26 CMR 313. With the Government specifically disclaiming any “grounds for search” other than consent, the law officer ruled the evidence admissible.1
When consent to a search is asserted, [34]*34it must be shown by “clear and positive testimony.” United States v Berry, 6 USCMA 609, 20 CMR 325. The burden of proof is upon the Government. It is an especially heavy obligation if the accused was in custody at the time he purportedly gave his consent. Judd v United States, 190 F2d 649 (CA DC Cir) (1951); United States v Wallace, 160 F Supp 859 (DC) (1958), cited ' with approval in United States v Alaniz, supra. Mere submission to the color of authority of law enforcement officers, or acquiescence in the officers’ announced or indicated purpose to search, is not consent. It would certainly lessen the frequency of dispute and ease the burden of decision if law enforcement agents made crystal clear to persons whose premises are to be searched that they have no official authorization, and that they cannot search in the absence thereof, unless they have free and knowing consent to enter into and search the premises. United States v Whitacre, 12 USCMA 345, 347, 30 CMR 345. Specificity of such advice and consent is, however, seldom found. Each case must be decided upon its own facts, with precedents being “at best, of doubtful value.” United States v Berry, supra, page 613; United States v Wilcher, 4 USCMA 215, 217, 15 CMR 215.
Earlier, we noted that the law officer ruled the evidence admissible. On the post-trial review, how-ever, the staff judge advocate disagreed with the ruling. He concluded that consent was not proved; but evaluating the effect of the evidence of the results of the searches, he determined there was no fair risk of prejudice to the accused. The Government contends that since the convening authority’s action does not indicate he approved his staff judge advocate’s conclusion, he may have actually disagreed with him, and concurred in the ruling of the law officer. In the absence of a separate statement by the convening authority, we must assume he agreed with and acted upon the basis of the opinion and recommendations set out in the post-trial review by the staff judge advocate. United States v Grice, 8 USCMA 166, 23 CMR 390. That raises the question of the rationale of the staff judge advocate’s approach to the issue. Did he recommend new findings of fact, or did he conclude that, as a matter of law, the evidence did not support the law officer’s ruling? The difference is important. This Court has no power to make new findings of fact; and we cannot choose arbitrarily between the facts underlying the law officer’s ruling and those supporting the convening authority’s action. Our inquiry is limited to whether there is evidence in the record of trial sufficient to support the findings made by the convening authority. We defined our responsibility in this area in United States v Alaniz, supra, as follows: “this Court is not possessed of fact-finding powers . . . and . . . we . . . may not overturn a truly factual determination based upon the evidence of record made by intermediate appellate bodies possessed of fact-finding jurisdiction.” If there is insufficient evidence in the record of trial to support new findings of fact made by an intermediate appellate authority, but sufficient evidence to support the findings at the trial, we can overrule the former and reaffirm the latter. United States v Wille, 9 USCMA 623, 26 CMR 403. Similarly, if the ruling of the intermediate appellate authority is one merely of law, and the ruling is erroneous, we can return the record of trial for reconsideration of the issue on a factual basis. United States v Wilcher, supra. The Government contends the staff judge advocate was wrong as a matter of law. Whether this be so need not detain us. If his conclusion that the evidence of the result of the searches did not prejudice the accused is correct, the legality or the illegality of the searches is of no importance.
[35]*35Improper admission of evidence obtained as a result of an illegal search does not justify reversal of an otherwise proper conviction, if the evidence does not prejudice the accused. United States v Higgins, 6 USCMA 308, 20 CMR 24; Woods v United States, 240 F2d 37 (CA DC Cir) (1956), reh in bane denied; cf. United States v Woodruff, 11 USCMA 268, 29 CMR 84. Appellate defense counsel maintain that the “mere presentation” of the bloodstained bed things “emotionally” prejudiced the court-martial and impeached the accused’s denial of rape. By implication, the argument acknowledges the absence of prejudice as to the charge of assault with a means likely to produce grievous bodily harm. What is merely implied in the argument appears explicitly in the accused’s trial testimony. He specifically admitted he struck the child with the metal baton. Other substantial evidence shows the “very serious” nature of the injuries inflicted upon the child; indeed, they were so serious as to require her to be hospitalized and placed on the list of “seriously ill” patients. Neither the baton nor the blood stains significantly affect the impact of the evidence establishing the commission of the assault charge. We hold, therefore, that as to this offense the staff judge advocate’s recommendation was clearly correct. United States v Gaskin, 12 USCMA 419, 31 CMR 5.
As to the rape charge, uncontrovert-ed testimony by several doctors who examined the child, including a specialist in gynecology, established there was a tear in her vagina, which indicated that “penetration” had occurred. One doctor testified the tear was “uncommon” unless caused by the sexual act or as the result of giving birth. The gynecologist testified the injury was “compatible” with sexual penetration, and it was “extremely remote” that it could be caused by “some [other] sort of semi-yielding type of material.” On the initial examination dried blood was found inside the vagina, and the child’s panties were covered with blood. The gynecologist also testified, without the slightest impeachment, that the tear extended into the upper vaginal tract, and the hymen was ruptured. Other testimony established that “wet smears” of the vaginal area were taken at about 11:30 to 12:00 o’clock on the morning of January 23, 1960; these smears, according to prosecution witnesses, showed the presence of male spermatozoa.
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Opinion of the Court
Quinn, Chief Judge:
A general court-martial in Germany convicted the accused of the rape of his six-year-old stepdaughter and of assault with a means likely to produce grievous bodily harm, in violation of Articles 120 and 128, respectively, of the Uniform Code of Military Justice, 10 USC §§ 920, 928. It sentenced him to a dishonorable discharge, confinement at hard labor for life and accessory penalties. On intermediate appellate review the findings of guilty were affirmed, but the period of confinement was reduced to twenty-five years. Here, the accused contends that two rulings by the law officer constitute reversible error.
We turn first to the admission of certain evidence obtained as a result of three separate searches of the accused’s apartment. The evidence consisted of a child’s aluminum baton, bloodstained pillow cases and bed sheets, and the location of blood spots in the apartment. The defense objected to the admission of the evidence on the ground the searches were not authorized and the accused did not consent thereto. See United States v Alaniz, 9 USCMA 533, 26 CMR 313. With the Government specifically disclaiming any “grounds for search” other than consent, the law officer ruled the evidence admissible.1
When consent to a search is asserted, [34]*34it must be shown by “clear and positive testimony.” United States v Berry, 6 USCMA 609, 20 CMR 325. The burden of proof is upon the Government. It is an especially heavy obligation if the accused was in custody at the time he purportedly gave his consent. Judd v United States, 190 F2d 649 (CA DC Cir) (1951); United States v Wallace, 160 F Supp 859 (DC) (1958), cited ' with approval in United States v Alaniz, supra. Mere submission to the color of authority of law enforcement officers, or acquiescence in the officers’ announced or indicated purpose to search, is not consent. It would certainly lessen the frequency of dispute and ease the burden of decision if law enforcement agents made crystal clear to persons whose premises are to be searched that they have no official authorization, and that they cannot search in the absence thereof, unless they have free and knowing consent to enter into and search the premises. United States v Whitacre, 12 USCMA 345, 347, 30 CMR 345. Specificity of such advice and consent is, however, seldom found. Each case must be decided upon its own facts, with precedents being “at best, of doubtful value.” United States v Berry, supra, page 613; United States v Wilcher, 4 USCMA 215, 217, 15 CMR 215.
Earlier, we noted that the law officer ruled the evidence admissible. On the post-trial review, how-ever, the staff judge advocate disagreed with the ruling. He concluded that consent was not proved; but evaluating the effect of the evidence of the results of the searches, he determined there was no fair risk of prejudice to the accused. The Government contends that since the convening authority’s action does not indicate he approved his staff judge advocate’s conclusion, he may have actually disagreed with him, and concurred in the ruling of the law officer. In the absence of a separate statement by the convening authority, we must assume he agreed with and acted upon the basis of the opinion and recommendations set out in the post-trial review by the staff judge advocate. United States v Grice, 8 USCMA 166, 23 CMR 390. That raises the question of the rationale of the staff judge advocate’s approach to the issue. Did he recommend new findings of fact, or did he conclude that, as a matter of law, the evidence did not support the law officer’s ruling? The difference is important. This Court has no power to make new findings of fact; and we cannot choose arbitrarily between the facts underlying the law officer’s ruling and those supporting the convening authority’s action. Our inquiry is limited to whether there is evidence in the record of trial sufficient to support the findings made by the convening authority. We defined our responsibility in this area in United States v Alaniz, supra, as follows: “this Court is not possessed of fact-finding powers . . . and . . . we . . . may not overturn a truly factual determination based upon the evidence of record made by intermediate appellate bodies possessed of fact-finding jurisdiction.” If there is insufficient evidence in the record of trial to support new findings of fact made by an intermediate appellate authority, but sufficient evidence to support the findings at the trial, we can overrule the former and reaffirm the latter. United States v Wille, 9 USCMA 623, 26 CMR 403. Similarly, if the ruling of the intermediate appellate authority is one merely of law, and the ruling is erroneous, we can return the record of trial for reconsideration of the issue on a factual basis. United States v Wilcher, supra. The Government contends the staff judge advocate was wrong as a matter of law. Whether this be so need not detain us. If his conclusion that the evidence of the result of the searches did not prejudice the accused is correct, the legality or the illegality of the searches is of no importance.
[35]*35Improper admission of evidence obtained as a result of an illegal search does not justify reversal of an otherwise proper conviction, if the evidence does not prejudice the accused. United States v Higgins, 6 USCMA 308, 20 CMR 24; Woods v United States, 240 F2d 37 (CA DC Cir) (1956), reh in bane denied; cf. United States v Woodruff, 11 USCMA 268, 29 CMR 84. Appellate defense counsel maintain that the “mere presentation” of the bloodstained bed things “emotionally” prejudiced the court-martial and impeached the accused’s denial of rape. By implication, the argument acknowledges the absence of prejudice as to the charge of assault with a means likely to produce grievous bodily harm. What is merely implied in the argument appears explicitly in the accused’s trial testimony. He specifically admitted he struck the child with the metal baton. Other substantial evidence shows the “very serious” nature of the injuries inflicted upon the child; indeed, they were so serious as to require her to be hospitalized and placed on the list of “seriously ill” patients. Neither the baton nor the blood stains significantly affect the impact of the evidence establishing the commission of the assault charge. We hold, therefore, that as to this offense the staff judge advocate’s recommendation was clearly correct. United States v Gaskin, 12 USCMA 419, 31 CMR 5.
As to the rape charge, uncontrovert-ed testimony by several doctors who examined the child, including a specialist in gynecology, established there was a tear in her vagina, which indicated that “penetration” had occurred. One doctor testified the tear was “uncommon” unless caused by the sexual act or as the result of giving birth. The gynecologist testified the injury was “compatible” with sexual penetration, and it was “extremely remote” that it could be caused by “some [other] sort of semi-yielding type of material.” On the initial examination dried blood was found inside the vagina, and the child’s panties were covered with blood. The gynecologist also testified, without the slightest impeachment, that the tear extended into the upper vaginal tract, and the hymen was ruptured. Other testimony established that “wet smears” of the vaginal area were taken at about 11:30 to 12:00 o’clock on the morning of January 23, 1960; these smears, according to prosecution witnesses, showed the presence of male spermatozoa. Finally, evidence and admissions by the accused in his sworn testimony established beyond dispute that about 6:00 o’clock in the evening of January 19, the child left a neighbor’s apartment; she was in “good health” and in a “perfectly active” state; thereafter, she was with the accused in their apartment; the next morning she appeared at her kindergarten class at about 9:00 a.m. in a “semi-coma”; during this period, the accused’s wife was absent in the hospital and he took care of the household. Against this evidence and other incriminating circumstances,2 which we have omitted in order to present the issue in the strongest possible light for the accused, is the accused’s sworn denial that he physically molested the child and his further avowal that he loved her and in his “mind and heart” knew he would not “do a thing like that.” There is evidence the child loved her stepfather and that he enjoyed a reputation for kindness, peaceableness, and outstanding performance of duty as a noncommis-sioned officer. Also to be considered is the testimony of Dr. Lothar Lauten-bach, a qualified physician and a member of the faculty of the Department of Forensic Medicine, University of Erlangen. Testifying for the accused, he said it was “most likely not possible” that a smear taken seventy-four and one-half hours to eighty-nine and one-half hours after alleged intercourse would disclose the presence of male sperm. He admitted he knew of reports of eases involving young girls in which it was said that sperm was discovered seventeen days after coitus, but he thought “it is impossible.” Dr. Lau-tenbach’s opinion was predicated, in part, upon certain reference materials, among which was a text book on foren[36]*36sic medicine by Professor Albert Pon-sold of Germany. Professor Ponsold, a qualified physician and professor of forensic medicine in the University of Muenster, testified in rebuttal as a prosecution witness. He said that from a time after birth to puberty the vaginal area is alkaline in nature; thereafter it turns acid. As a result, the male sperm tends to live longer in a child than in a mature woman. He specifically disagreed with a chart prepared by Dr. Lautenbach which reflected the number of hours of longevity of the sperm on the ground it pertained to an-“adult woman”; in his opinion, male sperm could live in a child for 100 hours. Dr. Like, a pathologist, also testified that before puberty the male sperm is distinguishable in the vagina for a greater period of time than it is in the case of an adult female. Finally, Dr. Like testified that in his examination of the smear taken from the child, he found present the organism known as Staphylococcus aureus. Professor Ponsold testified that the presence of this organism “is a sign” of the non-acidity of the vagina.
Where does the evidence obtained by the searches fit into this picture ? After weighing all the evidence, can it be said with “fair assurance” that the baton, the bloody bed things, and the location of blood spots in the apartment influenced the court-martial in its determination that the accused forcibly penetrated the child? Kotteakos v United States, 328 US 750, 90 L ed 1557, 66 S Ct 1239 (1946). The fact of penetration was spelled out so clearly in the medical testimony of the tear in the interior of the vagina and the ruptured hymen that there is no room to suppose the court-martial drew support for its finding on that issue from a possible collateral inference based on the blood stains and discovery of the metal baton in the apartment. That leaves for consideration the cause of the penetration. Appellate defense counsel strenuously argue that the challenged evidence tended to lessen “the force” of accused’s denials of guilt. Here again, however, the effect of the evidence is insignificant alongside of, or in conjunction with, the direct and positive medical testimony of the nature of the internal injuries and means by which they were inflicted. With more than “fair assurance,” therefore, we conclude the search evidence did not influence the court-martial in its deliberations on the accused’s guilt or innocence. United States v Woodruff, supra.
One final matter concerning the search issue remains. Appellate defense counsel suggest that because the law officer ruled the search was legal, the accused was deprived of the opportunity to litigate the question whether the second of several pretrial statements made by the accused was the product of the search. See United States v Harman, 12 USCMA 180, 30 CMR 180; United States v DeLeo, 5 USCMA 148, 162, 17 CMR 148. Underlying the suggestion is an assumption that the law officer erred in his ruling admitting the evidence. There is substantial evidence to indicate the assumption is unfounded, but for present purposes we accept the defense assumption that the law officer was wrong. The staff judge advocate expressly considered the point, and concluded that the statement was not the product of, or tainted by, the “evidence unearthed by the illegal search.” Not only is there evidence to support that conclusion, but the record of trial compellingly shows nothing learned as a result of the searches tainted the second of the accused’s statements.
There were three searches of the accused’s apartment. One was made on January 20; the second was conducted on the 21st; and the third was carried out on January 22. On the first search only the baton was taken; all other items of evidence were obtained on January 22. The accused’s second pretrial statement was made on January 21st. From the accused’s testimony, it clearly appears that the only purported influence on his decision to make the statement of January 21st was an alleged representation to him by one of the investigating agents. The representation was made in response to accused’s assertion that he was “worried” about the first statement he made; [37]*37it is to the effect that the accused need not worry about the first statement because the agents would “ ‘tear it up or file it away and it’ll never be used.’ ” The accused’s testimony on the point is as follows:
“Q What I mean is this, Sergeant: at the time you were interviewed on the 20th by Stephens and Burkman, what was your condition with respect to sobriety — by that I mean, were you plastered, drunk, hung-over, sober —what were you?
“A Well I had been drinking and my condition was not too good, sir.
“Q Were you intoxicated at the time you were interviewed ?
“A Well I wouldn’t say that I was intoxicated, sir, but I had been drinking, yes sir.
“Q Now did anything happen in Stuttgart, was there any conversation about this statement that you had made on the 20th?
“A Yes sir.
“Q Would you please tell us what was said, what occurred?
“A Well, I made the first statement, sir, I had made the first statement, sir, and I was going to make another statement or I said I would make another statement, but I was worried about the first statement, and Mr. Burkman told me, he said, ‘don’t worry about the first statement, we’ll either tear it up or file it away and it’ll never be used.’
“Q Now why were you worried about the first statement?
“A Well I didn’t want the two statements to correspond — I mean I wanted to tell the truth, I didn’t want the other statement, I didn’t want to have two — and that’s why I thought if I made the second one out they’d agree to disregard the first statement.
“Q Was there anything why you were bothered about the first statement, because you’d been drinking when you made it?
“A Yes sir, that was the reason.
“Q Was that one of the conditions that you imposed, that before you would make the second one that you wanted it understood that the first one would not be used?
“A Yes sir.
“Q And that it would be destroyed ?
“A Yes sir.
“Q And that’s what you told ’em?
“A Yes sir.
“Q Do I understand then that you would not make a second statement until they had kept a promise that they would tear up or dispose of or wouldn’t use the first one?
“A That is correct, sir.”
Accused’s testimony shows that none of the fruits of the search were used to influence, coerce, or extract the January 21st statement. Bather, it compellingly appears that the accused made the statement for his own purposes. There is, therefore, no merit in the present suggestion that the accused was prejudiced by being deprived of an opportunity to show the statement was the product of an illegal search. United States v DeLeo, supra.
In his second claim of error the accused attacks the correctness of the law officer’s ruling denying a motion for a mistrial. The motion was based on the law officer’s reversal of a previous ruling admitting an oral pretrial statement by the accused. On the afternoon of January 20, the accused was interrogated by criminal investigation agents. After being fully advised of his rights under Article 31, and of the nature of the offense of which he was suspected, the accused made a written statement. This statement was admitted into evidence. In it, the accused said that in the early evening of January 19, the child told him she had fallen down the stairs leading to the apartment. However, she seemed not to be seriously hurt. Later in the evening, he got angry at the child and “whipped” her twice before he sent her to bed; he may have hit her “harder that [sic] . . . [he] should have”; he thought he “must have hit her with a baton” across the back and shoulders [38]*38when he got “real mad and . . . [he] did not realize what . . . [he] was doing.” He denied he sexually molested the youngster. The child left the apartment before the accused awakened, and he did not know where she was until he received a telephone call from the school principal. The day after he made this statement, the accused went to take a polygraph test. As we pointed out previously, he testified at the trial he was “worried” about the first statement, and “thought if . . . [he] made the second one . . . [the agents would] agree to disregard the first statement.”3 According to the polygraph examiner in a pretest interview after again being advised of his rights under Article 31, the accused said his statement of January 20 was not true. He admitted he “probably inflicted all the injuries” the child had; he said he had been drinking “quite heavily,” and did not remember what happened. The polygraph examiner further testified the accused told him he “was sure that he didn’t use the baton or . . . [his sexual organ] in any way at all . . . [but] if anything was put in then it must have been his finger because he did remember one time having blood on his hand”; however, the accused thought the blood might have come from a wound on the child’s head. At that point the accused said he would like to have legal advice. The interview was immediately terminated, and the polygraph examination was not held. The next morning, January 22, the accused was escorted to the staff judge advocate’s office; there he conferred with Major McEwan, the assistant judge advocate.
The accused testified that when he “first come in,” Major McEwan told him that as he was not charged with an offense he was not yet entitled to have military counsel appointed to represent him. Although he maintained he “didn’t know what to do ... or what to say” after receiving that information, the accused admitted he proceeded to state the purpose of his visit. He said to the Major: “‘Sir, . . . I’m thinking about going up and taking the lie-detector test and I would like for you to explain to me or tell me something about the operation of the lie-detector as much as you possibly can.’ ” Major McEwan replied, “ ‘okay, I’ll help you as much as I can.’ ” Major McEwan advised the accused that he did not think any court in the United States would admit the results of the test in evidence. The accused further testified that Major McEwan informed him of his rights under Article 31; and that he did not ask the Major’s advice on, or discuss with him, any problem other than that of the lie detector test. After the interview with Major McEwan, and “as a result” of it, the accused decided to retain a civilian lawyer “to help . . . [him] in this case.” The exact date he decided to retain such counsel is not set out in his testimony. However, after he was placed in confinement on January 28, he instructed his wife to wire his mother for $500.00.
Between his interview with Major McEwan and the instructions to his wife, the accused had other meetings with the investigating agents and made other statements to them. On January 24 he was interviewed by two agents. Once more he was advised of his rights under Article 31; and he made a written statement. The accused testified that in this statement he merely “put . . . in writing” the statement he had made previously to the polygraph operator. On January 27, after being twice advised of his rights under Article 31, he made another oral statement. Before the contents of the latter statement were brought before the court-martial, the law officer admitted into evidence the oral statement of January 21st to the polygraph operator. Defense counsel had interposed an objection to its admission on the ground the accused was “refused” a request for legal advice. In overruling the objection, the law officer held that “in this case” {i.e., the January 21 statement), the accused “was given . . . [the] right to confer with a legal counsel.” In the course of the ruling, he said [39]*39he would instruct the court-martial it should not consider any statement taken “subsequent to the time” accused requested and was refused “legal advice,” but there was “yet no such statement” before the court. Nevertheless, without preliminary inquiry into the effect of the accused’s January 21 request.for legal counsel, the law officer later allowed an agent to testify to the January 27 oral statement. The agent quoted the accused as saying two or three times, “I might have done it, I could have done it, I don’t remember.” No questions about this statement were asked by the defense at that time, and the trial proceeded without incident until the prosecution offered into evidence the January 24 written statement. Defense counsel then objected to its admission on the ground it was taken from the accused after he had asked for counsel “and had been denied it.” Thereupon, trial counsel temporarily withdrew his offer of the January 24 statement.
Major McEwan was called as a witness. He testified he met the accused on January 22. His account of what transpired is as follows:
“A The Sergeant had apparently indicated he wanted to talk with the Judge Advocate, and my conversation with the Sergeant was substantially this: I informed him that he was entitled to be advised of his rights by a Judge Advocate officer if he so desired, he did not fall within the legal assistance program, but I would be able to inform him of his rights. I read to him Article 31 of the Code quite carefully, I explained it to him, I told him substantially that it meant he didn’t have to answer any questions if he didn’t want to, he didn’t have to answer any questions particularly which might tend to incriminate him. I explained in fairly simple terms what it meant by, to incriminate him, what those words mean.
“Q Was there any conversation relative to counsel for the accused that you recall?
“A I racked my memory on that this morning. I don’t know exactly what took place, but 1 do know this, that I had spoken with a number of individuals under circumstances such as that where they came to the Judge Advocate for advice, and if I told him anything about counsel it would be that he was entitled to retain individual civilian counsel if he chose to, that he was not entitled as a matter of right to military counsel but there would be nothing to prevent his requesting military counsel and that request would be given whatever consideration that it appeared to warrant.
“Q Do you recall any conversation with him relative to a lie-detector test and his rights and privileges concerning such a test ?
“A There was something about it, and again I’ve racked my mind to try to recall exactly what happened, but I’m quite sure that I informed him that in no case that I knew of in any court could the results of a lie-detector test be received into evidence.
“Q As I understand, you at that time told him he had no right to counsel since he had not been charged — or similar?
“A I told him that he had no entitlement to counsel, but if he requested military counsel the request would be given whatever consideration it appeared to warrant. I told him he could certainly request counsel, sir.
“Q Did he request counsel?
“A. Not that I know of.
“Q And you didn’t offer him counsel beyond advising him, that is, in offering counsel you didn’t offer him an individual counsel ?
“A That’s correct, sir.
“Q But you did offer him certain advice as to the rights that he might have?
“A Yes sir.”
After hearing Major McEwan and counsel’s argument on the objection, the law officer ruled that “perhaps the technical . . . provisions of the right to consult with the Judge Advo[40]*40cate was [sic] fulfilled,” but he thought the accused might have concluded he was “refused” counsel. On that basis, he sustained the defense objection to admission of the January-24 statement. Obtaining a favorable ruling on that point, defense counsel moved in an out-of-court hearing for a mistrial on the ground the January 27 statement was also inadmissible. This motion was denied. The law officer indicated he would instruct the court “to disregard any statement made by the accused which was made subsequent to the time he requested counsel.” He did, in fact, instruct the court-martial as follows:
“LO: Gentlemen of the court, due to my ruling on the admission of this statement and the reasons therefor, the court will disregard any statement made by the accused subsequent to the date upon which he sought legal counsel which was the 22nd day of January. There was one statement made subsequent to that time, according to the evidence, made to Mr. Burkman, and only one such statement. The court will remember to disregard that statement.
“TC: In other words, for clarification, Prosecution Exhibit Number 8 which has been admitted is still, may be considered by the court.
“LO: Any statements made in the presence of Mr. Burkman and Mr. Rasmussen—
“TC: May also still be considered by the court. In order to avoid any possibility of conflicting recollection as to the oral statements, as to which is admissible and which is not, I request the reporter read the testimony of Mr. Rasmussen relative to the — and Burkman — relative to the statement made by the accused on the 21st—
“DC: I object.
“LO: Objection sustained, you might if you desire have the statement of Mr. Burkman as to the subsequent statement read so that the court will know exactly what they are to disregard — the very short testimony given by Mr. Burk-man—
“TC: Does the defense object to that procedure?
“DC: Yes.
“LO: Do you object to that?
“Yes sir.
“LO: Okay, gentlemen, objection will be sustained. Go ahead.”
In our opinion, the law officer erred in instructing the court-martial to disregard all pretrial statements of the accused made after his interview with Major McEwan.4 However, we [41]*41may assume for present purposes that, right or wrong, the ruling and the instruction to disregard made it improper for the court-martial to consider the evidence in its deliberations on the accused’s guilt or innocence. That raises the problem of assessing the probable impact of the excluded evidence upon the court-martial.
On the post-trial review, the staff judge advocate assumed the evidence was initially admitted in error, but concluded there was no fair risk of prejudice to the accused because of the direct and specific instruction to disregard. Appellate defense counsel contend that under the circumstances of the case the instruction was manifestly ineffectual. They maintain the admissions of January 27 constitute the only direct evidence of rape and so sharply contradict the sworn denials of the accused at the trial as to compel the conclusion that the court-martial could not disregard them.
The effect of an instruction to disregard evidence has been considered by this Court in a number of cases. Reviewing the problem in United States v Shepherd, 9 USCMA 90, 95, 25 CMR 352, we said:
“Instructions by the law officer to the court-martial to disregard inadmissible evidence and erroneous actions by counsel may, in some situations, effectively eliminate the possibility of prejudice to the accused. United States v Shaughnessey, 8 USCMA 416, 24 CMR 226; United States v Russell, supra. Under other circumstances, a cautionary instruction is insufficient to overcome the adverse impact of the evidence upon the court members. See United States v Patrick, 8 USCMA 212, 24 CMR 22; United States v Warren, supra, page 429. There is no hard and fast rule in any particular case, but the general rule is that an accused must be accorded a fair trial.”
We earlier noted the substantial testimony regarding penetration by sexual act. Placed alongside this evidence the pretrial statement is an unimportant crypticism. The essence of the statement is that the accused did not remember the assault; it is patently speculative as to the critical fact of the commission of the rape. So many assertions of not remembering appear in the accused’s trial testimony that the pretrial statement to that effect is hardly likely to have impressed the court-martial. As to the force of the accused’s denials that he sexually molested the child, these are practically indistinguishable from his pretrial equivocation. Thus, on cross-examination he testified as follows:
“Q Now, Sergeant, in answering my questions there are times when you are able to state positively that certain things occurred or did not occur; there are other times when you can state only, T do not remember’. Can you explain to the court what the distinction between those two types of answers is in your own mind?
“A Sir, would you repeat that, please?
Q I’d be glad to, Sergeant. You recall my asking you a number of questions — for example, that elicited or obtained from you an answer that you definitely did not touch the child’s private parts, that you are positive of — correct—
“A Yes sir.
“Q You remember my asking you a number of other questions to which the only answer you have been able to give me is, T do not remember’ — is that correct?
“A Yes sir.
[42]*42“Q Now in your own mind, how do you distinguish between those two situations, in one where you are positive and the other where you cannot remember?
“A Well, sir, I don’t know, I just don’t recall — I can’t say it.
“Q Is it that you don’t remember, Sergeant, or is it that you don’t want to remember ?
“A I don’t remember, sir.”
We conclude that the motion for a mistrial was properly denied and that the law officer’s instruction to the court-martial to disregard the evidence was sufficient to protect fully the accused’s right to a fair trial. United States v Shamlian, 9 USCMA 28, 25 CMR 290; United States v Patrick, 8 USCMA 212, 24 CMR 22.
The decision of the board of review is affirmed.
Judge Kilday concurs.