United States v. Anderten

I dissent.

In the absence of the accused’s consent, use of depositions by the Government is expressly prohibit- ed in a case in which the death penalty may be imposed, except when "the convening authority shall have directed that the case be treated as not capital.” Article 49(f), Uniform Code of Military Justice, 50 USC § 624. Both the language of the Article, and our decision in United States v. Young, 2 USCMA 470, 9 CMR 100, make it clear that the prohibition is mandatory. The majority now hold that the notation of approval by the convening authority, endorsed upon the staff judge…