                          UNITED STATES, Appellee


                                        v.


        Dennis S. McDONALD, Hospital Corpsman First Class
                       U.S. Navy, Appellant


                                  No. 00-0544

                          Crim. App. No. 98 2175


       United States Court of Appeals for the Armed Forces


                          Argued February 6, 2001

                          Decided June 20, 2001

CRAWFORD, C.J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. SULLIVAN and EFFRON, JJ., each
filed an opinion concurring in the result.


                                    Counsel

For Appellant: Lieutenant I. L. Paredes, JAGC, USNR (argued);
Lieutenant Mari-Rae Sopper, JAGC, USNR.

For Appellee: Lieutenant Commander Philip Sundel, JAGC, USNR
(argued); Colonel Marc W. Fisher, Jr., USMC (on brief); Major
Mark K. Jamison, USMC.

Military Judges:      Daniel J. D’Alesio and Kenneth A. Krantz



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McDonald, No. 00-0544/NA


      Chief Judge CRAWFORD delivered the opinion of the Court.

      Pursuant to his pleas, appellant was found guilty of one

specification of committing an indecent act upon a child;

contrary to his pleas, he was found guilty of forceful sodomy

and another specification of committing an indecent act upon the

same child, in violation of Articles 125 and 134, Uniform Code

of Military Justice, 10 USC §§ 925 and 934, respectively.              The

convening authority approved the sentence adjudged by the

military judge of a dishonorable discharge, 15 years’

confinement (partially suspended), total forfeitures, and

reduction to the lowest enlisted grade.          The Court of Criminal

Appeals affirmed the findings and sentence.           53 MJ 593 (2000).

We granted review of the following issue:

            WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE
            SIXTH AMENDMENT’S CONFRONTATION CLAUSE DOES NOT
            APPLY TO THE PRESENTENCING PORTION OF A COURT-
            MARTIAL, CONTRARY TO THIS COURT’S DECISION IN
            UNITED STATES V. GEORGE, 52 MJ 259 (2000).

We hold that the Sixth Amendment’s Confrontation Clause does not

apply to this presentencing portion of a non-capital court-

martial.*   However, the Fifth Amendment’s Due Process Clause does

apply there.




*
  See United States v. Morrow, 177 F.3d 272, 304 (5th Cir. 1999); United States
v. Silverman, 976 F.2d 1502, 1511 (6th Cir. 1992)(en banc), cert. denied, 507
U.S. 990 (1993); United States v. Wise, 976 F.2d 393, 401 and n.3 (8th Cir.
1992)(en banc), cert. denied, 507 U.S. 989 (1993); United States v. Helton,
975 F.2d 430, 434 (7th Cir. 1992); United States v. Beaulieu, 893 F.2d 1177,
1180 (10th Cir.), cert. denied, 497 U.S. 1038 (1990).

                                      2
United States v. McDonald, No. 00-0544/NA


                               FACTS

     Prior to the presentation of evidence, the prosecutor

informed the judge that he intended on calling the victim’s

father, an active-duty Sergeant Major in the Army serving with

the Rapid Deployment Force, located at Fort Stewart, Georgia,

who had been present in Jacksonville the day before to testify

as an aggravation witness at sentencing.    It was not until the

night of February 16, 1998, that the victim’s father was placed

on alert to be at the air field at midnight on the night of

February 17 to deploy to the Middle East at 6:00 a.m. that

morning because of the crisis with Iraq.    The prosecutor

proposed moving the trial to Fort Stewart, or taking his

testimony by deposition or by telephone.    Defense counsel

objected that the deposition “would cause undue delay” and the

telephone testimony would violate “the Sixth Amendment right to

confront” the witness.   But the defense offered to stipulate to

the testimony.   The Government declined to stipulate to the

testimony.   The judge then proceeded to hear testimony.     After

the victim testified, the matter came up again.

     The judge stated:

          [A]ny attempt to move either all of the court
          personnel or counsel for each side for a
          deposition would involve a major part of a work
          day just in travel time necessary, setup and the
          actual testimony and, with a deploying unit and a
          senior NCO, I think that is simply impracticable.
          As between the two most feasible methods, one
          favored by each side, telephonic testimony, while

                                 3
United States v. McDonald, No. 00-0544/NA


          it does not accord face-to-face confrontation, but
          neither does a stipulation, and affords the
          opportunity for full cross-examination and to
          explore issues of opportunity that may be
          suggested by direct examination, it appears to be
          -- given that neither method will show the
          witness’ visual demeanor, to give a more nearly
          full rendition of the testimony than a written
          stipulation can in circumstances where the witness
          is pretty clearly unavailable and there is no
          dispute as the underlying facts surrounding the
          unavailability.

     The Government earlier announced it was fully prepared to

bear the cost of moving the proceedings or conducting a

deposition at the other post and did not assert any reasons

other than those mentioned by the judge that precluded hearing

the testimony of the other witnesses the next day.   There is

nothing in the record indicating why the interests of the other

witnesses outweighed the impact on the court-martial of a one-

day delay for such proceedings or deposition.

     The court below held “that the Confrontation Clause does

not apply to post-conviction, non-capital, presentence

proceedings,” and thus, the Confrontation Clause does not

prohibit taking testimony on the telephone.   The Court of

Criminal Appeals recognized that this Court has not previously

addressed this question.   53 MJ at 598.

                            DISCUSSION

     The federal, state, and military criminal law systems share

a number of traditional sentencing goals including

rehabilitation, specific deterrence, general deterrence,

                                 4
United States v. McDonald, No. 00-0544/NA


incapacitation, retribution, and restitution.     See, e.g., United

States v. Lania, 9 MJ 100 (CMA 1980).

     There are, however, differences as well as similarities

among the military, federal, and state sentencing procedures.

Cf. United States v. Lacy, 50 MJ 286, 287 (1999).     The military

justice system also differs because sentencing includes

consideration of morale, as well as good order and discipline,

together with unique penalties, such as punitive separation,

reduction in rank, and forfeiture of pay.     The issue in this

case requires us to examine Constitutional, Codal, and Manual

for Courts-Martial provisions applicable to sentencing in the

military.

     Constitution.    The Fifth Amendment provides: “No person

shall be ... deprived of life, liberty, or property, without due

process of law....”    The Sixth Amendment provides: “[T]he

accused shall enjoy the right ... to be confronted with the

witnesses against him; [and] to have compulsory process for

obtaining witnesses in his favor.”     The latter provisions were

codified in Article 46, UCMJ, 10 USC § 846, which provides that

the “defense counsel ... shall have equal opportunity to obtain

witnesses and other evidence in accordance with such regulations

as the President may prescribe.”

     The Supreme Court has interpreted both the Due Process

Clause and the Sixth Amendment right of compulsory process and


                                   5
United States v. McDonald, No. 00-0544/NA


confrontation in connection with federal sentencing procedures.

A fundamental requirement of due process is that individuals

subjected to proceedings by the Government are entitled to the

safeguards established in the governing statutes and

regulations, and that the Government must follow the prescribed

procedures, regardless whether they are constitutionally

required.   Vitarelli v. Seaton, 359 U.S. 535 (1959); United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).    The

present case ultimately involves the question whether the

procedure comported with due process in terms of compliance with

the safeguards established in the applicable Rules for Courts-

Martial and Military Rules of Evidence.

     In Williams v. New York, 337 U.S. 241, 245 (1949), the

Court rejected a “broad constitutional challenge” to the “New

York procedural policy [that] encourages [the judge] to consider

information about the convicted person’s past life, health,

habits, conduct, and mental and moral propensities in the

context of a death sentence.”   Justice Black, speaking for the

Court, noted that

            both before and since the American colonies became
            a nation, courts in this country and in England
            practiced a policy under which a sentencing judge
            could exercise a wide discretion in the sources and
            types of evidence used to assist him in determining
            the kind and extent of punishment to be imposed within
            limits fixed by law. Out-of-court affidavits have
            been used frequently, and of course in the smaller
            communities sentencing judges naturally have in mind


                                  6
United States v. McDonald, No. 00-0544/NA


            their knowledge of the personalities and backgrounds
            of convicted offenders.

Id. at 246 (footnote omitted).

       The judge’s task requires consideration of “the fullest

information possible concerning the defendant’s life and

characteristics.”    Id. at 247.   The Court acknowledged the need

for presentence reports, id. at 249, and “recognize[d] that most

of the information now relied upon by judges to guide them in

the intelligent imposition of sentences would be unavailable if

information were restricted to that given in open court by

witnesses subject to cross-examination.”    Id. at 250.   In light

of the need for individualized sentences, the Court could not

“say that the due process clause renders a sentence void merely

because a judge gets additional out-of-court information.”      Id.

at 252.

       In Specht v. Patterson, 386 U.S. 605 (1967), the Court held

that there was a denial of due process when sentence enhancers

(such as the defendant is “an habitual offender and mentally

ill”) were used “(1) without a hearing at which ... [he] may

confront and cross-examine adverse witnesses and present

evidence of his own by use of compulsory process, if necessary;

and (2) on the basis of hearsay evidence to which ... [he was]

not allowed access.”    The Court found the sentence enhancer

“radically different” from the Williams “situation.”      Id. at

608.    The High Court reaffirmed that position in McMillan v.

                                   7
United States v. McDonald, No. 00-0544/NA


Pennsylvania, 477 U.S. 79, 91-92 (1986), concluding that

preponderance of the evidence was an adequate burden of proof to

establish a fact that in turn invoked a mandatory minimum

sentence.

     In summary, the Constitution requires that evidence

admitted during sentencing must comport with the utilitarian

purpose of the Due Process Clause, i.e., reliability, and

procedural-due-process requirements.     In contrast to federal

civilian sentencing in non-capital cases, sentencing in the

military justice system, even in non-capital cases, is

adversarial based on the procedure established by Congress and

the President.    Thus, in addition to looking at the

constitutional sources of rights, we must also examine the Code,

the Manual, and the Military Rules of Evidence to determine

whether greater rights are given to military defendants.

     Statute.    Subchapter VIII of the Uniform Code of Military

Justice sets forth the Articles on sentencing.     Generally, it

gives discretion to the court-martial to determine an

appropriate sentence within “such limits as the President may

prescribe” for the offense for which the accused has been

convicted.   Article 56, 10 USC § 856.    These rules are set forth

in the Manual for Courts-Martial.




                                  8
United States v. McDonald, No. 00-0544/NA


                       Procedure and Evidence

     Manual for Courts-Martial.    Article I, § 8, clause 14,

gives Congress the discretion to create a military criminal law

system, and Article 36(a), UCMJ, 10 USC § 836(a), authorizes the

President to promulgate Rules for Courts-Martial for sentencing.

RCM 1001-1009, Manual for Courts-Martial, United States (2000

ed.).   These rules have evolved over time.     Denise K. Vowell, To

Determine an Appropriate Sentence:    Sentencing in the Military

Justice System, 114 Mil.L.Rev. 87 (1986).     Except when there is

a mandatory sentence, the sentence within Presidential or Codal

limits is left to the discretion of the sentencing authority.

RCM 1001 establishes the order of presentation, form, and

general substance of admissible evidence during the sentencing

procedures.    The Drafters stated that RCM 1001

           allows the presentation of much of the same
           information to the court-martial as would be
           contained in a presentence report, but it does
           so within the protections of an adversarial
           proceeding ... although they [the rules] may be
           relaxed for some purposes. See subsections (b)(4)
           and (5), (c)(3), (d), and (e) of this rule.

Drafters’ Analysis, Manual, supra at A21-69.     Under that rule an

accused has a limited right to production of witnesses (RCM

1001(e)(1)) and the right to cross-examination of witnesses (RCM

1001(c)(3)).    See Art. 46, UCMJ, 10 USC § 846.    The Military

Rules of Evidence are applicable to sentencing, see Analysis of

RCM 1001, Manual, supra at A21-69; thus providing procedural


                                  9
United States v. McDonald, No. 00-0544/NA


safeguards to ensure the reliability of evidence admitted during

sentencing.    Mil.R.Evid. 1101, Manual, supra.   Under Mil.R.Evid.

1101(c), the Rules of Evidence “may be relaxed in sentencing

procedures as provided under RCM 1001 and otherwise as provided

in this Manual.”

     RCM 1001(b)(4) relaxes the rules of evidence concerning the

prosecution’s evidence in aggravation in non-capital cases by

providing that “a written or oral deposition taken in accordance

with RCM 702 is admissible.”    RCM 1001(e) governs production of

witnesses.    RCM 703(c)(2) requires the defense to provide trial

counsel with a list of witnesses whose production is requested,

including the reasons why production of the witnesses is

necessary under RCM 1001(e).    Subsection 1 of that Rule sets out

general guidance on the production of witnesses by providing

that “[d]uring the presentence proceedings, there shall be much

greater latitude than on the merits to receive information by

means other than testimony presented through the personal

appearance of witnesses.”   It goes on to state: “Whether a

witness shall be produced to testify during presentence

proceedings is a matter within the discretion of the military

judge, subject to the limitations in subsection (e)(2).”

     A “witness may be produced to testify during presentence

proceedings through a subpoena or travel orders at Government

expense only if” certain criteria are met, including a


                                 10
United States v. McDonald, No. 00-0544/NA


determination that “[o]ther forms of evidence, such as oral

depositions, written interrogatories, or former testimony would

not be sufficient to meet the needs of the court-martial in the

determination of an appropriate sentence.”      RCM 1001(e)(2) and

(D) (emphasis added).    A balancing test is applied by the judge

who measures whether the “significance of the personal

appearance of the witness to the determination of an appropriate

sentence, when balanced against the practical difficulties of

producing the witness, favors production of the witness.”      RCM

1001(e)(2)(E).    See also United States v. Combs, 20 MJ 441 (CMA

1985); United States v. Loya, 49 MJ 104 (1998).

     In summary, the President has provided rules to ensure

“relevant and reliable” evidence.      United States v. Ariail, 48

MJ 285, 287 (1998).    See also United States v. Prevatte, 40 MJ

396, 397 n.* (CMA 1994).    With respect to the prosecution’s

evidence in aggravation, the safeguards in the Rules of Evidence

apply.   Id.   RCM 1001(e)(2)(D) permits the Rules to be relaxed

only to the extent that the testimony is offered in “forms of

evidence such as” an oral or written deposition.      This rule does

not preclude taking testimony by telephone.

     In the present case the testimony at issue was from the

victim’s father.    As he was part of the prosecution’s case in

aggravation, his testimony was subject to the provisions of RCM

1001(b)(4).    Cf. RCM 1001(e).   The prosecution’s offer to take


                                  11
United States v. McDonald, No. 00-0544/NA


and present the witness’ testimony by deposition certainly would

have comported with the Rules.    The military judge, however,

decided to take the testimony by telephone.    The defense

objected both to the deposition and to the telephone testimony.

       Both political branches of Government have considered this

matter and have authorized depositions.     Neither have prohibited

testimony by telephone during sentencing.    The military judge,

faced with an unusual situation and the likelihood that the

testimony would be temporarily lost, had to craft a creative

solution to meet the needs of a party or unforeseen military

exigency.

       Similarly we need not decide whether the President may

authorize presentencing testimony in aggravation by means other

than the specific examples given in the rules.    The relative

merits of depositions versus other forms of testimony, including

telephone conferencing, are matters to be assessed in the

process set forth in Article 36 -- in terms of opportunities for

examination, cross-examination, and impact on the deliberations

-- which will determine the scope and content of such rules, if

any.

       We hold that the Court of Criminal Appeals was correct in

holding that the Confrontation Clause does not apply.    United

States v. George, 52 MJ 259 (2000), does not compel a different

result.    The Court in George held that admission of evidence of


                                 12
United States v. McDonald, No. 00-0544/NA


“future risks” was harmless error under the circumstances.       Id.

at 262.   The Court did not decide whether the Sixth Amendment

applied to sentencing testimony, because it assumed the error

was constitutional in nature in light of George’s assertion and

the Government’s concession that the error was of constitutional

magnitude.   Id. at 261.    Unlike George, there is no government

concession in this case or an unchallenged holding by the court

below that there was error.    Since Congress would not be

disabled from changing the sentencing procedures in the

military, it is only logical to conclude that the Sixth

Amendment right of confrontation does not apply to the

presentencing portion of a non-capital court-martial.

     However, under Williams, the Due Process Clause requires

that the evidence introduced in sentencing meet minimum

standards of reliability.    Those requirements were met here.

There is no evidence to suggest that the victim’s father’s

testimony was unreliable or his identity questioned.

Additionally, there was notice to the defense, right to counsel,

right of cross-examination, and a presentation of the evidence

by telephone to the judge as the sentencing authority.    The

record establishes that the “practical difficulties of producing

a witness,” including the cost and timing, were such that the

judge did not abuse his discretion in allowing the victim’s

father’s testimony to be taken by telephone.    Cf. United States


                                  13
United States v. McDonald, No. 00-0544/NA


v. Hill, 4 MJ 33, 37 n.18 (CMA 1977).    See also United States v.

Rich, 12 MJ 661, 663 n.3 (ACMR 1981).    In any event, any error

in this case was harmless.   We do not suggest that telephone

testimony is appropriate in all cases.    Manual guidance to the

military judge during sentencing is sufficient to ensure the

proper balance between obtaining needed testimony and

safeguarding rights of the accused.

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                                14
United States v. McDonald, 00-0544/NA



    SULLIVAN, Judge (concurring in the result):

    This was a trial by military judge alone (Article 16(1)(B),

Uniform Code of Military Justice, 10 USC § 316(1)(B)), and

appellant’s sentence was determined by a judge using the Rules

for Courts-Martial promulgated by the President under Article

36(a), UCMJ, 10 USC § 836(a).    See RCM 1001-1009, Manual for

Courts-Martial, United States (1995 ed).     Appellant objected to

the admission of sentencing testimony by the victim’s father,

over the telephone, offered by the prosecution as aggravation

evidence.



    There is no express provision in the Military Rules of

Evidence authorizing the taking of testimony for sentencing by

telephone.    However, RCM 1001(e)(1) might be broad enough to
                                   1
allow this sentencing procedure.       It states:

1
   This Manual rule is based in part on Article 46, Uniform Code
of Military Justice, 10 USC § 846. It states:

            § 846. Art. 46. Opportunity to obtain
            witnesses and other evidence

              The trial counsel, the defense counsel,
            and the court-martial shall have equal
            opportunity to obtain witnesses and other
            evidence in accordance with such
            regulations as the President may
            prescribe. Process issued in court-
            martial cases to compel witnesses to
            appear and testify and to compel the
            production of other evidence shall be
            similar to that which courts of the United
            States having criminal jurisdiction may
            lawfully issue and shall run to any part
United States v. McDonald, No. 00-0544/NA


              (e) Production of witnesses.

                (1) In general. During the
          presentence proceedings, there shall be
          much greater latitude than on the merits
          to receive information by means other than
          testimony presented through the personal
          appearance of witnesses. Whether a
          witness shall be produced to testify
          during presentence proceedings is a matter
          within the discretion of the military
          judge, subject to the limitations in
          subsection (e)(2) of this rule.

                            Discussion

              See R.C.M. 703 concerning the
          procedures for production of witnesses.

                (2) Limitations. A witness may be
          produced to testify during presentence
          proceedings through a subpoena or travel
          orders at Government expense only if—

                    (A) The testimony expected to
          be offered by the witness is necessary for
          consideration of a matter of substantial
          significance to a determination of an
          appropriate sentence, including evidence
          necessary to resolve an alleged inaccuracy
          or dispute as to a material fact;

                    (B) The weight or credibility
          of the testimony is of substantial
          significance to the determination of an
          appropriate sentence;

                    (C) The other party refuses to
          enter into a stipulation of fact
          containing the matters to which the
          witness is expected to testify, except in
          an extraordinary case when such a
          stipulation of fact would be an
          insufficient substitute for the testimony;


          of the United States, or the Territories,
          Commonwealths, and possessions.

(Emphasis added.)


                                2
United States v. McDonald, No. 00-0544/NA

                    (D) Other forms of evidence,
          such as oral depositions, written
          interrogatories, or former testimony would
          not be sufficient to meet the needs of the
          court-martial in the determination of an
          appropriate sentence; and

                    (E) The significance of the
          personal appearance of the witness to the
          determination of an appropriate sentence,
          when balanced against the practical
          difficulties of producing the witness,
          favors production of the witness. Factors
          to be considered include the costs of
          producing the witness, the timing of the
          request for production of the witness, the
          potential delay in the presentencing
          proceeding that may be caused by the
          production of the witness, and the
          likelihood of significant interference
          with military operational deployment,
          mission accomplishment, or essential
          training.

(Emphasis added in text.)

    Nevertheless, appellant rests his right-of-confrontation

claim on the Sixth Amendment and the Supreme Court’s decision in

Specht v. Patterson, 386 U.S. 605 (1967).   He contends that where

sentencing is done in “an adversarial criminal proceeding” (see

generally Middendorf v. Henry, 425 U.S. 25, 35 (1976)), he is

entitled to his full Sixth Amendment rights, including the right

to confront and cross-examine the witnesses against him.   See

also United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.

1990).   He further avers that sentencing at a court-martial is an

adversarial criminal proceeding subject to the Sixth Amendment.



    I agree with the majority that the Sixth Amendment does not

require an adversarial sentencing proceeding with a right of


                                 3
United States v. McDonald, No. 00-0544/NA

confrontation.   See Williams v. New York, 337 U.S. 241 (1949).

Nevertheless, the President, as authorized by Congress, has

provided a limited adversarial sentencing proceeding with a

limited right of confrontation in the court-martial system.      See

RCM 1001(e).   See generally Weiss v. United States, 510 U.S. 163,

176-81 (1994).   The purpose of this proceeding is to determine an

“appropriate sentence.”   RCM 1001 (a)(1).



    In my view, Specht v. Patterson, supra at 608, did not

address a sentencing hearing of this type.   There, after

conviction, “a new finding of fact” by the judge was required by

Colorado law (“whether a person constitutes a threat of bodily

harm to the public, or is an habitual offender and mentally

ill”), which was to serve as the basis for criminal commitment of

an accused beyond that authorized for his original conviction.

The Supreme Court held that this procedure, in effect, amounted

to an additional criminal proceeding under the Colorado Sex

Offenders Act.   Such a proceeding is clearly not the same as the

continuous sentencing procedure at courts-martial, so I conclude

that Specht is not applicable to appellant’s case.



    Today, the sentencing procedures at courts-martial have

become more akin to those now in the federal court system which

do not require Sixth Amendment confrontation.     See United States

v. Wise, 976 F.2d 393, 398 n.2 (8th Cir. 1992).    However, as

noted in the majority opinion, federal cases clearly recognize a


                                 4
United States v. McDonald, No. 00-0544/NA

limited Fifth Amendment right to confrontation at these

proceedings.   See United States v. Goldfaden, 959 F.2d 1324, 1330

(5th Cir. 1992).   Courts-martial sentencing procedures clearly

meet minimum Fifth Amendment due process standards in the sense

that they do provide an accused “adequate notice of and an

opportunity to rebut or explain information that is used against

him.”   (E.g., RCM 1001(d) (rebuttal and surrebuttal)).   See

United States v. Beaulieu, 893 F.2d 1177, 1181 (10th Cir.), cert.

denied, 497 U.S. 1038 (1990).   In my view, the telephonic portion

of appellant’s sentence hearing did not deny him adequate due

process; even if error did occur, either under the Manual or the

Fifth Amendment, it was harmless beyond a reasonable doubt as

explained by Judge Effron in his separate opinion.




                                 5
United States v. McDonald, No. 00-0544/NA




EFFRON, Judge (concurring in the result):

     I agree with the majority opinion that the use of telephonic

testimony did not violate the Sixth Amendment.   I respectfully

disagree, however, with the opinion’s conclusion that the military

judge did not abuse his discretion when he permitted testimony by

telephone in this case.

     In the present case, the proponent of the testimony -- the

prosecution -- offered to take and present the witness’ testimony by

deposition.    The military judge erred by not ordering a deposition

as requested.   Use of a deposition during sentencing is authorized

expressly in RCM 1001(b)(4), Manual for Courts-Martial, United

States (2000 ed.), which governs the prosecution’s evidence in

aggravation in non-capital cases.   The Rule allows two forms of

evidence other than in-court witness testimony – oral and written

depositions.    RCM 702 provides detailed rules for the conduct of

oral and written depositions.   An oral deposition proceeds in the

same manner as testimony at trial, with oral examination and cross-

examination by counsel.   In a written deposition proceeding, the

questions are prepared in advance and are propounded by the

deposition officer.   In both formats, the parties are represented by

counsel, the witness provides verbal answers, and the proceedings

are recorded by a reporter or on videotape, audiotape, or sound

film.   In the present case, for example, the deposition could have
United States v. McDonald, No. 00-0544/NA


been recorded on videotape and replayed during the court-martial.

By contrast, there are no procedural safeguards specified for

telephonic testimony, and the demeanor of the witness cannot be

observed by counsel or the court-martial.

     Although the telephone is a well-established means of

communication that long predates videotape, the President has not

authorized telephonic depositions or testimony in the circumstances

of the present case.   The majority opinion’s reliance on RCM

1001(e)(2)(D) as authority for telephonic testimony is misplaced.

That Rule simply provides that the Government is not obligated to

produce a live witness through a subpoena or travel orders unless

“[o]ther forms of evidence, such as oral depositions, written

interrogatories, or former testimony would not be sufficient to meet

the needs of the court martial in the determination of an

appropriate sentence.”   The reference in that Rule to three

traditional forms of evidence with established roots in the Manual

provides no authority for the creation of novel forms of evidence on

behalf of the prosecution.   Because the President has not authorized

telephonic testimony by the prosecution when presenting evidence in

aggravation under RCM 1001(b)(4), such testimony is not admissible

unless it otherwise would be admissible under the Rules of Evidence.

     If the military judge in the present case had granted the

prosecution’s request to take the testimony of the sentencing

witness by deposition, his action would have comported with the


                                 2
United States v. McDonald, No. 00-0544/NA


Rules.   The military judge, however, decided to take the testimony

by telephone.   This is not a case in which the military judge was

faced with an unprecedented situation involving, for example, a

military exigency in which testimony would be lost unless he crafted

a creative solution.   Although the witness’ deployment was imminent,

the military judge could have used an authorized procedure, a

deposition, that was fully acceptable to the Government -- the party

that was the proponent of the witness.    The only reasons the

military judge gave on the record for rejecting a deposition were

based on administrative efficacy:    other witnesses would be

inconvenienced and the trial would not conclude as swiftly as

anticipated if a day were taken for the deposition at another post.

In the absence of a compelling necessity for creating a judicial

exception to RCM 1001(b)(4), the military judge erred by not

ordering a deposition.   The question of whether telephonic testimony

should be permitted in sentencing proceedings is a matter that

should be addressed in the Manual after careful consideration in the

rulemaking process, not through judicial decisions at the trial and

appellate levels in a case involving administrative convenience.

     I agree with the ultimate conclusion reached by the

majority opinion, however, because the error was harmless in

this case.   The defense was allowed to cross-examine the witness

and did not develop any significant issues.    The accused was

tried by a military judge alone and the judge ruled that he


                                 3
United States v. McDonald, No. 00-0544/NA


would not consider the impact of the witness’ deployment as an

aggravating factor.   In a bench trial, the "prejudicial impact

of erroneously admitted evidence is . . . substantially less

than it might have been in a jury trial."   United States v.

Cacy, 43 MJ 214, 218 (1995), quoting United States v. Cardenas,

9 F.3d 1139, 1156 (5th Cir. 1993), cert. denied, 511 U.S. 1134

(1994).




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