Court of Appeals for the Armed Forces September 13, 1995, No. 94-0400; CMR No. 29318 (United States v. Sutton)

WISS, Judge

(concurring):

7. I conclude that the military judge erred by admitting the out-of-court statements of Bergendahl into evidence: First, the Government had not pursued “every reasonable means” (¶ 11) to obtain his testimony—specifically, by way of deposition; second, in any event, his statements, in the circumstances under which they were made, were not against his penal interest.

I

8.