MR. JUSTICE WHITE delivered the opinion of the Court.
Petitioner, Jackson, has filed a petition for habeas corpus in the Federal District Court asserting that his conviction for murder in the New York courts is invalid because it was founded upon a confession not properly
I.
On June 14, 1960, at about 1 a. m., petitioner, Jackson, and Nora Elliott entered a Brooklyn hotel where Miss Elliott registered for both of them. After telling Miss Elliott to leave, which she did, Jackson drew a gun and took money from the room clerk. He ordered the clerk and several other people into an upstairs room and left the hotel, only to encounter Miss Elliott and later a policeman on the street. A struggle with the latter followed, in the course of which both men drew guns. The
A detective questioned Jackson at about 2 a. m., soon after his arrival at the hospital. Jackson, when asked for his name, said, "Nathan Jackson, I shot the colored cop. I got the drop on him." He also admitted the robbery at the hotel. According to the detective, Jackson was in "strong" condition despite his wounds.
Jackson was given 50 milligrams of demerol and 1/50 of a grain of scopolamine at 3:55 a. m. Immediately thereafter an Assistant District Attorney, in the presence of police officers and hospital personnel, questioned Jackson, the interrogation being recorded by a stenographer. Jackson, who has been shot in the liver and lung, had by this time lost about 500 cc. of blood. Jackson again admitted the robbery in the hotel, and then said, "Look, I can't go on." But in response to further questions he admitted shooting the policeman and having fired the first shot.
Jackson and Miss Elliott were indicted for murder in the first degree and were tried together. The statements made by Jackson, both at 2 and 3:55 a. m., were introduced in evidence without objection by Jackson's counsel. Jackson took the stand in his own defense. His account of the robbery and of the shooting of the policeman differed in some important respects from his confession. According to Jackson's testimony, there was a substantial interval of time between his leaving the hotel and the shooting, and the policeman attempted to draw his gun first and fired the first shot. As to the questioning at the hospital, Jackson recalled that he was in pain and gasping for breath at the time and was refused water and told he would not be let alone until the police had the answers they wanted. He knew that he had been interrogated but could remember neither the questions nor the answers.
To counter Jackson's suggestion that he had been pressured into answering questions, the State offered the testimony of the attending physician and of several other persons. They agreed that Jackson was refused water, but because of the impending operation rather than his refusal to answer questions. On cross-examination of the doctor, Jackson's counsel, with the help of the hospital
In his closing argument, Jackson's counsel did not ask for an acquittal but for a verdict of second-degree murder or manslaughter. Counsel's main effort was to negative the premeditation and intent necessary to first-degree murder and to separate the robbery felony from the killing. He made much of the testimony tending to show a substantial interval between leaving the hotel and the beginning of the struggle with the policeman. The details of that struggle and the testimony indicating the policeman fired the first shot were also stressed.
Consistent with the New York practice where a question has been raised about the voluntariness of a confession, the trial court submitted that issue to the jury along with the other issues in the case. The jury was told that if it found the confession involuntary, it was to disregard it entirely, and determine guilt or innocence
The jury found Jackson guilty of murder in the first degree, Miss Elliott of manslaughter in the first degree. Jackson was sentenced to death, Miss Elliott to a prison
II.
It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401; Stroble v. California, 343 U.S. 181; Payne v. Arkansas, 356 U.S. 560. Equally clear is the defendant's constitutional right at some stage in the proceedings
III.
Under the New York rule, the trial judge must make a preliminary determination regarding a confession offered by the prosecution and exclude it if in no circumstances could the confession be deemed voluntary.
This procedure has a significant impact upon the defendant's Fourteenth Amendment rights. In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure,
These uncertainties inherent in the New York procedure were aptly described by the Court in Stein v. New York, 346 U.S. 156, 177-178:
A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined. But did the jury in Jackson's case make these critical determinations, and if it did, what were these determinations?
Notwithstanding these acknowledged difficulties inherent in the New York procedure, the Court in Stein found
We disagree with the Court in Stein; for in addition to sweeping aside its own express doubts that the jury acted at all in the confession matter the Court, we think, failed to take proper account of the dangers to an accused's rights under either of the alternative assumptions.
On the assumption that the jury found the confession voluntary, the Court concluded that it could properly do so. But this judgment was arrived at only on the further assumptions that the jury had actually found the disputed issues of fact against the accused and that these findings were reliably arrived at in accordance with considerations that are permissible and proper under federal law. These additional assumptions, in our view, were unsound.
The New York jury is at once given both the evidence going to voluntariness and all of the corroborating evidence showing that the confession is true and that the defendant committed the crime. The jury may therefore believe the confession and believe that the defendant has committed the very act with which he is charged, a circumstance which may seriously distort judgment of the credibility of the accused and assessment of the testimony concerning the critical facts surrounding his confession.
The failure to inquire into the reliability of the jury's resolution of disputed factual considerations underlying its conclusion as to voluntariness—findings which were afforded decisive weight by the Court in Stein—was not a mere oversight but stemmed from the premise underlying the Stein opinion that the exclusion of involuntary confessions is constitutionally required solely because of the inherent untrustworthiness of a coerced confession. It followed from this premise that a reliable or true confession need not be rejected as involuntary and that evidence corroborating the truth or falsity of the confession and the guilt or innocence of the accused is indeed pertinent to
This underpinning of Stein proved to be a short-lived departure from prior views of the Court, see Malinski v. New York, 324 U.S. 401; Lyons v. Oklahoma, 322 U.S. 596, 597; Gallegos v. Nebraska, 342 U.S. 55, 63, and was unequivocally put to rest in Rogers v. Richmond, supra, where it was held that the reliability of a confession has
It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only
Under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. Indeed the jury is told to determine the truthfulness of the confession in assessing its probative value.
As reflected in the cases in this Court, police conduct requiring exclusion of a confession has evolved from acts of clear physical brutality to more refined and subtle methods of overcoming a defendant's will.
Expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused's will has been overborne—facts are frequently disputed, questions of credibility are often crucial, and inferences to be drawn from established facts are often determinative. The overall determination of the voluntariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issue squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence. See Wilson v. United States, 162 U.S. 613; United States v. Carignan, 342 U.S. 36; Smith v. United States, 348 U.S. 147.
IV.
We turn to consideration of the disposition of this case. Since Jackson has not been given an adequate hearing upon the voluntariness of his confession he must be given one, the remaining inquiry being the scope of that hearing and the court which should provide it.
This is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards. Here there are substantial facts in dispute: Jackson said that he was in pain from his wounds, gasping for breath and unable to talk long. A state witness described Jackson
As we have already said, Jackson is entitled to a reliable resolution of these evidentiary conflicts. If this case were here upon direct review of Jackson's conviction, we could not proceed with review on the assumption that these disputes had been resolved in favor of the State for as we have held we are not only unable to tell how the jury resolved these matters but, even if the jury did resolve them against Jackson, its findings were infected with impermissible considerations and accordingly cannot be controlling here. Cf. Rogers v. Richmond, supra. Likewise, a federal habeas corpus court, in the face of the unreliable state court procedure, would not be justified in disposing of the petition solely upon the basis of the undisputed portions of the record. At the very least, Townsend v. Sain, 372 U.S. 293, would require a full evidentiary hearing to determine the factual context in which Jackson's confession was given.
It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which
Reversed and remanded.
APPENDIX TO OPINION OF THE COURT.
ARIZONA: State v. Preis, 89 Ariz. 336, 338-339, 362 P.2d 660, 661-662, cert. denied, 368 U.S. 934 (conflicts in the evidence for the jury but "it must appear to the reasonable satisfaction of the trial court that the confession was not obtained by threats, coercion or promises of immunity"). State v. Hudson, 89 Ariz. 103, 358 P.2d 332, states the Arizona practice more clearly. If the judge finds that the confession is voluntary, he may admit it into evidence; if it appears the confession was not voluntary, he must not let the confession go before the jury. See also State v. Pulliam, 87 Ariz. 216, 349 P.2d 781.
GEORGIA: Downs v. State, 208 Ga. 619, 68 S.E.2d 568 (admissible where no evidence of involuntariness offered at preliminary examination). Garrett v. State, 203 Ga. 756, 48 S.E.2d 377 (before admission prima facie showing of voluntariness is required; showing is satisfied where testimony as to voluntariness is not contradicted). Coker v. State, 199 Ga. 20, 33 S.E.2d 171 (confession should have been excluded by trial judge even though there was testimony that the defendant was not coerced).
IDAHO: State v. Van Vlack, 57 Idaho 316, 65 P.2d 736 (primarily for the trial court to determine the admissibility of a confession). State v. Dowell, 47 Idaho 457, 276 P. 39; State v. Andreason, 44 Idaho 396, 257 P. 370 (the question of voluntariness primarily for the determination of the trial court). State v. Nolan, 31 Idaho 71,
MICHIGAN: People v. Crow, 304 Mich. 529, 8 N.W.2d 164 (question of voluntariness for the jury). People v. Preston, 299 Mich. 484, 300 N. W. 853 (confession first ruled voluntary in preliminary examination; at trial the question is for the jury). People v. Cleveland, 251 Mich. 542, 232 N. W. 384 (involuntariness issue should be carefully scrutinized and confession excluded if involuntary; if conflict in evidence, matter for jury).
MINNESOTA: State v. Schabert, 218 Minn. 1, 15 N.W.2d 585 (if evidence creates issue of fact as to trustworthiness, that issue should be submitted to the jury on proper instructions, citing Wilson v. United States, 162 U.S. 613, and New York, Pennsylvania and Massachusetts cases). State v. Nelson, 199 Minn. 86, 271 N. W. 114 (if judge finds confession admissible, the jury should also be allowed to pass on the question of voluntariness).
MISSOURI: State v. Statler, 331 S.W.2d 526 (if the evidence is conflicting and issue close in preliminary hearing, the issue should be tried again at trial so that both trial judge and jury may pass upon it with additional evidence adduced at trial). State v. Phillips, 324 S.W.2d 693. State v. Bradford, 262 S.W.2d 584 (trial court not obliged to submit question to jury because there is substantial evidence showing the confession is voluntary; where the issue is close, the trial court may decide the question after additional evidence adduced at trial is in).
OHIO: Burdge v. State, 53 Ohio St. 512, 42 N. E. 594 (matters preliminary to the admission of evidence for the court but where court is in doubt about the matter, it may leave the question to the jury, relying on Massachusetts case). State v. Powell, 105 Ohio App. 529, 148 N.E.2d 230, appeal dismissed, 167 Ohio St. 319, 148 N.E.2d 232, cert. denied, 359 U.S. 964 (where the trial judge disbelieves
OREGON: State v. Bodi, 223 Or. 486, 354 P.2d 831 (judge in his discretion may determine voluntariness or allow jury to decide whether the confession is voluntary and trustworthy). State v. Nunn, 212 Or. 546, 321 P.2d 356 (trial judge is not finally to determine whether a confession is voluntary but is to determine whether the State's proof warrants a finding of voluntariness; if so, the jury can consider voluntariness in determining the weight to be afforded the confession).
PENNSYLVANIA: Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (confession determined to be conditionally admissible after preliminary hearing). Commonwealth v. Ross, 403 Pa. 358, 365, 169 A.2d 780, 784, cert. denied, 368 U.S. 904 (both trial court in preliminary hearing and jury applied the proper standard in determining the confession to be voluntary; trial court added that the question was one of fact for the jury). Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161 (where State's evidence shows confession is voluntary, matter is for the jury; only coercive practices inducing a false confession render it inadmissible).
SOUTH CAROLINA: State v. Bullock, 235 S.C. 356, 111 S.E.2d 657, appeal dismissed, 365 U.S. 292 (after trial judge decides the confession is admissible, jury may pass on the question of voluntariness). State v. Livingston, 223 S.C. 1, 73 S.E.2d 850, cert. denied, 345 U.S. 959. State v. Scott, 209 S.C. 61, 38 S.E.2d 902 (question is for the judge in first instance, but if the judge is doubtful or evidence is conflicting, the jury is necessarily the final arbiter).
SOUTH DAKOTA: State v. Hinz, 78 S. D. 442, 103 N.W.2d 656 (court may resolve the question one way or the
TEXAS: Marrufo v. State, 172 Tex. Cr. R. 398, 357 S.W.2d 761 (confession not inadmissible as a matter of law). Odis v. State, 171 Tex. Cr. R. 107, 345 S.W.2d 529 (proper for the trial judge to find confession admissible as a matter of law and recognize an issue in regard to voluntariness for jury's consideration). Bingham v. State, 97 Tex. Cr. R. 594, 262 S. W. 747 (reversible error for the court to fail to pass on the admissibility of a confession since defendant entitled to the court's judgment on the matter; only if trial judge disbelieves evidence going to involuntariness should the confession be admitted).
WISCONSIN: State v. Bronston, 7 Wis.2d 627, 97 N.W.2d 504 (issue of trustworthiness of a confession for the jury). Pollack v. State, 215 Wis. 200, 253 N. W. 560 (unless the confession is wholly untrustworthy, it is to be submitted to the jury).
WYOMING: The only expression of the Wyoming court is found in Clay v. State, 15 Wyo. 42, 86 P. 17, where, in dictum, it is said that the jury may pass on the question if the admissions appear to be voluntary or the evidence is conflicting.
The same difficulty of classification exists in the federal judicial circuits. The cases in which the New York practice is said to be followed are generally instances where the defendant declines to offer any evidence in a preliminary examination after the Government has shown the confession to be voluntary. See Hayes v. United States, 296 F.2d 657 (C. A. 8th Cir.), cert. denied, 369 U.S. 867. United States v. Echeles, 222 F.2d 144 (C. A. 7th Cir.),
Other opinions from the United States Courts of Appeals for the various circuits indicate that they follow the Massachusetts or orthodox procedure. See United States v. Gottfried, 165 F.2d 360, 367 (C. A. 2d Cir.), cert. denied, 333 U.S. 860; United States v. Lustig, 163 F.2d 85, 88-89 (C. A. 2d Cir.), cert. denied, 332 U.S. 775; McHenry v. United States, 308 F.2d 700 (C. A. 10th Cir.); Andrews v. United States, 309 F.2d 127 (C. A. 5th Cir.), cert. denied, 372 U.S. 946; Leonard v. United States, 278 F.2d 418 (C. A. 9th Cir.); Smith v. United States, 268 F.2d 416 (C. A. 9th Cir.); Shores v. United States, 174 F.2d 838 (C. A. 8th Cir.); Denny v. United States, 151 F.2d 828 (C. A. 4th Cir.), cert. denied, 327 U.S. 777; Kemler v. United States, 133 F.2d 235 (C. A. 1st Cir.); Murphy v. United States, 285 F. 801 (C. A. 7th Cir.), cert. denied, 261 U.S. 617.
The Court of Appeals for the District of Columbia, however, does seem to sanction a variation of the New York practice, with the requirement that the judge hold a full preliminary hearing, at which the defendant may testify, outside the presence of the jury. It is not clear what the trial judge must find before admitting the confession and submitting the issue of voluntariness to the jury. Sawyer v. United States, 112 U. S. App. D. C. 381, 303 F.2d 392; Wright v. United States, 102 U. S. App. D. C. 36, 250 F.2d 4 (where the confession could be found voluntary, the issue is for the jury). Although there apparently are no recent cases, the Court of Appeals for the Sixth Circuit appears to follow the New York practice. Anderson v. United States, 124 F.2d 58, rev'd 318 U.S. 350; McBryde v. United States, 7 F.2d 466.
I.
In Stein v. New York, 346 U.S. 156, 177-179, this Court sustained the constitutionality of New York's procedure under which the jury, rather than the trial judge, resolves disputed questions of fact as to the voluntariness of confessions offered against defendants charged with crime. I think this holding was correct and would adhere to it. While I dissented from affirmance of the convictions in Stein, my dissent went to other points; I most assuredly did not dissent because of any doubts about a State's constitutional power in a criminal case to let the jury, as it does in New York, decide the question of a confession's voluntariness. In fact, I would be far more troubled about constitutionality should either a State or the Federal Government declare that a jury in trying a defendant charged with crime is compelled to accept without question a trial court's factual finding that a confession was voluntarily given. Whatever might be a judge's view of the voluntariness of a confession, the jury in passing on a defendant's guilt or innocence is, in my judgment, entitled to hear and determine voluntariness of a confession along with other factual issues on which its verdict must rest.
The Court rests its challenge to the reliability of jury verdicts in this field on its belief that it is unfair to a defendant, and therefore unconstitutional,
Another reason given by the Court for invalidating the New York rule is that it is inherently unfair and therefore unconstitutional to permit the jury to pass on voluntariness, since the jury, even though finding a confession to have been coerced, may nevertheless be unwilling to follow the court's instruction to disregard it, because it may also believe the confession is true, the defendant is guilty, and a guilty person ought not be allowed to escape punishment. This is a possibility, of a nature that is inherent in any confession fact-finding by human fact-finders —a possibility present perhaps as much in judges as in jurors. There are, of course, no statistics available, and probably none could be gathered, accurately reporting whether and to what extent fact-finders (judges or juries) are affected as the Court says they may be.
Though able to cite as support for its holding no prior cases suggesting that the New York practice is so unfair to defendants that it must be held unconstitutional, the
The Court in note 8 of its opinion indicates that a State may still, under the new constitutional rule announced today, permit a trial jury to determine voluntariness if first the trial judge has "fully and independently resolved the issue against the accused." Ante, p. 378. In other words, the Constitution now requires the judge to make this finding, and the jury's power to pass on voluntariness is a mere matter of grace, not something constitutionally required. If, as the Court assumes, allowing the jury to pass on the voluntariness of a confession before the judge has done so will "seriously distort" the jury's judgment, I fail to understand why its judgment would not be similarly distorted by its being allowed to pass on voluntariness after the judge has decided that question. Yet, of course, the jury passing on guilt or innocence must, under any fair system of criminal procedure, be allowed to consider and decide whether an offered confession is voluntary in order to pass on its credibility. But it should be obvious that, under the Court's new rule, when a confession does come before a jury it will have the judge's explicit or implicit stamp of approval on it. This Court will find it hard to say that the jury will not be greatly influenced, if not actually coerced, when what the trial judge does is the same as saying "I am convinced that this confession is voluntary, but, of course, you may decide otherwise if you like."
Another disadvantage to the defendant under the Court's new rule is the failure to say anything about the
Finally, and even more important, the Court's new constitutional doctrine is, it seems to me, a strange one when we consider that both the United States Constitution and the New York Constitution (Art. I, § 2) establish trial by jury of criminal charges as a bedrock safeguard of the people's liberties.
II.
The Fifth Amendment provides that no person shall in any criminal case be compelled to be a witness against himself. We have held in Malloy v. Hogan, ante, p. 1, that the Fourteenth Amendment makes this provision applicable to the States. And we have held that this provision means that coerced confessions cannot be used as evidence to convict a defendant charged with crime. See, e. g., Haynes v. Washington, 373 U.S. 503; Chambers v. Florida, 309 U.S. 227; Brown v. Mississippi, 297 U.S. 278. It is our duty when a conviction for crime comes to us based in part on a confession to review the record to decide for ourselves whether that confession was freely and voluntarily given. In so doing we must reexamine the facts to be certain that there has been no constitutional violation, and our inquiry to determine the facts on which constitutional rights depend cannot be cut off by factfindings at the trial, whether by judge or by jury. Blackburn v. Alabama, 361 U.S. 199, 205, n. 5; Payne v. Arkansas, 356 U.S. 560, 561-562; cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 18-19. In the present case the undisputed evidence showed:
This last confession (but not the first statement, given at 2 a. m.) was, I think, shown by the above evidence without more to have been given under circumstances that were "inherently coercive," see Ashcraft v. Tennessee, 322 U.S. 143, 154, and therefore was not constitutionally admissible under the Fifth and Fourteenth Amendments. For this reason I would reverse the judgment below and remand the case to the District Court with directions to grant the petitioner's application for habeas corpus and to release him from custody unless the State within a reasonable time sets aside his former conviction and grants him a new trial.
III.
The Court, instead of reversing for an entire new trial, gives New York a reasonable time for a judge to hold a new hearing, including the taking of new testimony, to determine whether the confession was voluntary. Even were I to accept the Court's holding that the New York rule is unconstitutional, I should agree with my Brother
APPENDIX A TO OPINION OF MR. JUSTICE BLACK.
RULES FOLLOWED IN THE STATES TO DETERMINE VOLUNTARINESS OF CONFESSIONS.
The decisions cited below are leading cases or cases illustrating the rules followed in the respective States; the listings are not exhaustive. This classification does not take account of such variables as burden of proof, whether a preliminary hearing is held, whether the jury is present at such a hearing, etc. A few States have two or more lines of cases suggesting approval of two or more conflicting rules; in such situations the State is listed under the view which in light of most recent cases appears the dominant one, and decisions seemingly inconsistent are pointed out. Where a court clearly has changed from one rule to another, even though without specifically overruling its earlier decisions, those earlier decisions
As the Court, my Brother HARLAN, and commentators in this field have aptly pointed out, the rules stated in the decisions are not always clear, so that in some cases there may be room for doubt as to precisely what procedure a State follows. I believe, however, that a full and fair reading of the cases listed below as following the New York rule will show that there is every reason to believe that many people have been convicted of crimes in those States with cases so classified after trials in which judges did not resolve factual issues and determine the question of voluntariness.
I. Wigmore2 or "Orthodox" Rule.
ALABAMA: Phillips v. State, 248 Ala. 510, 520, 28 So.2d 542, 550 (1946); Blackburn v. State, 38 Ala. App. 143, 149, 88 So.2d 199, 204 (1954), cert. denied, 264 Ala. 694, 88 So.2d 205 (1956), vacated and remanded on another point sub nom. Blackburn v. Alabama, 354 U.S. 393
COLORADO: Read v. People, 122 Colo. 308, 318-319, 221 P.2d 1070, 1076 (1950); Downey v. People, 121 Colo. 307, 317, 215 P.2d 892, 897 (1950); Osborn v. People, 83 Colo. 4, 29-30, 262 P. 892, 901 (1927); Fincher v. People, 26 Colo. 169, 173, 56 P. 902, 904 (1899). But see Bruner v. People, 113 Colo. 194, 217-218, 156 P.2d 111, 122 (1945) (seems to state Massachusetts rule). And see Roper v. People, 116 Colo. 493, 497-499, 179 P.2d 232, 234-235 (1947) (approves Bruner but also quotes from Osborn v. People, supra, a case clearly stating the "orthodox" rule).
CONNECTICUT: State v. Buteau, 136 Conn. 113, 124, 68 A.2d 681, 686 (1949), cert. denied, 339 U.S. 903 (1950); State v. McCarthy, 133 Conn. 171, 177, 49 A.2d 594, 597 (1946).
FLORIDA: Leach v. State, 132 So.2d 329, 333 (1961), cert. denied, 368 U.S. 1005 (1962); Graham v. State, 91 So.2d 662, 663-664 (1956); Bates v. State, 78 Fla. 672, 676, 84 So. 373, 374-375 (1919).
ILLINOIS: People v. Miller, 13 Ill.2d 84, 97, 148 N.E.2d 455, 462, cert. denied, 357 U.S. 943 (1958); People v. Fox, 319 Ill. 606, 616-619; 150 N. E. 347, 351-352 (1926).
INDIANA: Caudill v. State, 224 Ind. 531, 538, 69 N.E.2d 549, 552 (1946).
KANSAS: State v. Seward, 163 Kan. 136, 144-146, 181 P.2d 478, 484-485 (1947); State v. Curtis, 93 Kan. 743, 750-751, 145 P. 858, 861 (1915).
KENTUCKY: Ky. Rev. Stat. § 422.110; Cooper v. Commonwealth, 374 S.W.2d 481, 482-483 (1964); Bass v. Commonwealth, 296 Ky. 426, 431, 177 S.W.2d 386, 388,
LOUISIANA: State v. Freeman, 245 La. 665, 670-671, 160 So.2d 571, 573 (1964); State v. Kennedy, 232 La. 755, 762-763, 95 So.2d 301, 303 (1957); State v. Wilson, 217 La. 470, 486, 46 So.2d 738, 743-744 (1950), aff'd, 341 U.S. 901 (1951).
MISSISSIPPI: Jones v. State, 228 Miss. 458, 474-475, 88 So.2d 91, 98 (1956); Brooks v. State, 178 Miss. 575, 581-582, 173 So. 409, 411 (1937); Ellis v. State, 65 Miss. 44, 47-48, 3 So. 188, 189-190 (1887).
MONTANA: State v. Rossell, 113 Mont. 457, 466, 127 P.2d 379, 383 (1942); State v. Dixson, 80 Mont. 181, 196, 260 P. 138, 144 (1927); State v. Sherman, 35 Mont. 512, 518-519, 90 P. 981, 982 (1907).
NEW MEXICO: State v. Armijo, 64 N.M. 431, 434-435, 329 P.2d 785, 787-788 (1958); State v. Ascarate, 21 N.M. 191, 201-202, 153 P. 1036, 1039 (1915), appeal dismissed, 245 U.S. 625 (1917). But cf. State v. Armijo, 18 N.M. 262, 268, 135 P. 555, 556-557 (1913) (dictum that trial judge may in his discretion follow Massachusetts rule).
NORTH CAROLINA: State v. Outing, 255 N.C. 468, 472, 121 S.E.2d 847, 849 (1961); State v. Davis, 253 N.C. 86, 94-95, 116 S.E.2d 365, 370 (1960), cert. denied, 365 U.S. 855 (1961).
NORTH DAKOTA: State v. English, 85 N.W.2d 427, 430 (1957); State v. Nagel, 75 N. D. 495, 515-516, 28 N.W.2d 665, 677 (1947); State v. Kerns, 50 N. D. 927, 935-936, 198 N. W. 698, 700 (1924).
TENNESSEE: Tines v. State, 203 Tenn. 612, 619, 315 S.W.2d 111, 114 (1958), cert. denied, 358 U.S. 889 (1958); Wynn v. State, 181 Tenn. 325, 328-329, 181 S.W.2d 332, 333 (1944); cf. Boyd v. State, 2 Humph. (21 Tenn.) 39, 40-41 (1840).
VERMONT: State v. Blair, 118 Vt. 81, 85, 99 A.2d 677, 680 (1953); State v. Watson, 114 Vt. 543, 548, 49 A.2d 174, 177 (1946); State v. Long, 95 Vt. 485, 490, 115 A. 734, 737 (1922).
VIRGINIA: Durrette v. Commonwealth, 201 Va. 735, 744, 113 S.E.2d 842, 849 (1960); Campbell v. Commonwealth, 194 Va. 825, 830, 75 S.E.2d 468, 471 (1953); Jackson v. Commonwealth, 193 Va. 664, 673, 70 S.E.2d 322, 327 (1952).
WASHINGTON: State v. Moore, 60 Wn.2d 144, 146-147, 372 P.2d 536, 538 (1962); State v. Holman, 58 Wn.2d 754, 756-757, 364 P.2d 921, 922-923 (1961).
WEST VIRGINIA: State v. Vance, 146 W.Va. 925, 934, 124 S.E.2d 252, 257 (1962); State v. Brady, 104 W.Va. 523, 529-530, 140 S. E. 546, 549 (1927).
II. "New York" Rule.
ARKANSAS: Monts v. State, 233 Ark. 816, 823, 349 S.W.2d 350, 355 (1961); Burton v. State, 204 Ark. 548, 550-551, 163 S.W.2d 160, 162 (1942); McClellan v. State, 203 Ark. 386, 393-394, 156 S.W.2d 800, 803 (1941).
DISTRICT OF COLUMBIA: Wright v. United States, 102 U. S. App. D. C. 36, 45, 250 F.2d 4, 13 (1957); Catoe v. United States, 76 U. S. App. D. C. 292, 295, 131 F.2d 16, 19 (1942); McAffee v. United States, 70 App. D. C.
GEORGIA: Downs v. State, 208 Ga. 619, 621, 68 S.E.2d 568, 569-570 (1952); Garrett v. State, 203 Ga. 756, 762-763, 48 S.E.2d 377, 382 (1948); Coker v. State, 199 Ga. 20, 23-25, 33 S.E.2d 171, 173-174 (1945); Bryant v. State, 191 Ga. 686, 710-711, 13 S.E.2d 820, 836-837 (1941).
IOWA: State v. Jones, 253 Iowa 829, 834-835, 113 N.W.2d 303, 307 (1962); State v. Hofer, 238 Iowa 820, 828, 829, 28 N.W.2d 475, 480 (1947); State v. Johnson, 210 Iowa 167, 171, 230 N. W. 513, 515 (1930).
MICHIGAN: People v. Crow, 304 Mich. 529, 531, 8 N.W.2d 164, 165 (1943); People v. Preston, 299 Mich. 484, 493-494, 300 N. W. 853, 857 (1941).
MINNESOTA: State v. Schabert, 218 Minn. 1, 7-9, 15 N.W.2d 585, 588 (1944) (states New York rule although also cites both New York rule and Massachusetts rule cases).
MISSOURI: State v. Goacher, 376 S.W.2d 97, 103 (1964); State v. Bridges, 349 S.W.2d 214, 219 (1961); State v. Laster, 365 Mo. 1076, 1081-1082, 293 S.W.2d 300, 303-304, cert. denied, 352 U.S. 936 (1956). Cf. State v. Statler, 331 S.W.2d 526, 530 (1960) (question of voluntariness of confession should be submitted to jury "if there is substantial conflicting evidence on the issue and if the issue is close"); accord, State v. Phillips, 324 S.W.2d 693, 696-697 (1959); State v. Gibilterra, 342 Mo. 577, 584-585, 116 S.W.2d 88, 93-94 (1938).
NEW YORK: People v. Pignataro, 263 N.Y. 229, 240-241, 188 N. E. 720, 724 (1934); People v. Weiner, 248 N.Y. 118, 122, 161 N. E. 441, 443 (1928); People v. Doran, 246 N.Y. 409, 416-418, 159 N. E. 379, 381-382 (1927).
OREGON: State v. Bodi, 223 Or. 486, 491, 354 P.2d 831, 833-834 (1960); State v. Nunn, 212 Or. 546, 554, 321 P.2d 356, 360 (1958).
PENNSYLVANIA: Commonwealth v. Senk, 412 Pa. 184, 194, 194 A.2d 221, 226 (1963), vacated and remanded on authority of the present case sub nom. Senk v. Pennsylvania, post, p. 562; Commonwealth v. Oister, 201 Pa.Super. 251, 257-258, 191 A.2d 851, 854 (1963), vacated and remanded on authority of the present case sub nom. Oister v. Pennsylvania, post, p. 568; Commonwealth v. Ross, 403 Pa. 358, 365, 169 A.2d 780, 784, cert. denied, 368 U.S. 904 (1961); Commonwealth v. Spardute, 278 Pa. 37, 48, 122 A. 161, 165 (1923).
PUERTO RICO: People v. Fournier, 77 P. R. 208, 243-244 (1954); People v. Declet, 65 P.R. 22, 25 (1945).
SOUTH CAROLINA: State v. Bullock, 235 S.C. 356, 366-367, 111 S.E.2d 657, 662 (1959), appeal dismissed, 365 U.S. 292 (1961); State v. Livingston, 223 S.C. 1, 6, 73 S.E.2d 850, 852 (1952), cert. denied, 345 U.S. 959 (1953); State v. Scott, 209 S.C. 61, 64, 38 S.E.2d 902, 903 (1946).
SOUTH DAKOTA: State v. Nicholas, 62 S. D. 511, 515, 253 N. W. 737, 738-739 (1934); State v. Montgomery, 26 S. D. 539, 542, 128 N. W. 718, 719 (1910) (question of voluntariness of confession should be submitted to jury "if the evidence submitted to the court should
TEXAS: Harris v. State, 370 S.W.2d 886, 887 (1963), vacated and remanded on authority of the present case sub nom. Harris v. Texas, post, p. 572; Lopez v. State, 366 S.W.2d 587 (1963), vacated and remanded on authority of the present case sub nom. Lopez v. Texas, post, p. 567; Marrufo v. State, 172 Tex. Cr. R. 398, 402, 357 S.W.2d 761, 764 (1962); Odis v. State, 171 Tex Cr. R. 107, 109, 345 S.W.2d 529, 530-531 (1961); Newman v. State, 148 Tex. Cr. R. 645, 649-650, 187 S.W.2d 559, 561-562 (1945), cert. denied, 326 U.S. 772 (1945); Gipson v. State, 147 Tex. Cr. R. 428, 429, 181 S.W.2d 76, 77 (1944); Ward v. State, 144 Tex. Cr. R. 444, 449, 158 S.W.2d 516, 518 (1941), rev'd on another point sub nom. Ward v. Texas, 316 U.S. 547 (1942). But cf. Bingham v. State, 97 Tex. Cr. R. 594, 596-601, 262 S. W. 747, 749-750 (1924) (perhaps states Massachusetts rule).
WISCONSIN: State v. Bronston, 7 Wis.2d 627, 638, 97 N.W.2d 504, 511 (1959); Pollack v. State, 215 Wis. 200, 217, 253 N. W. 560, 567 (1934).
WYOMING: Clay v. State, 15 Wyo. 42, 59, 86 P. 17, 19 (1906).
III. "Massachusetts" or "Humane" Rule.
ALASKA: Smith v. United States, 268 F.2d 416, 420-421 (C. A. 9th Cir. 1959).
CALIFORNIA: People v. Bevins, 54 Cal.2d 71, 76-77, 351 P.2d 776, 779-780 (1960); People v. Crooker, 47 Cal.2d 348, 353-355, 303 P.2d 753, 757-758 (1956), aff'd sub nom. Crooker v. California, 357 U.S. 433 (1958); People v. Gonzales, 24 Cal.2d 870, 876-877, 151 P.2d 251, 254-255 (1944); People v. Appleton, 152 Cal.App.2d 240, 244, 313 P.2d 154, 156 (Dist. Ct. App. 1957) (trial judge may follow Massachusetts rule after he has found confession to be voluntary). Cf. People v. Childers, 154 Cal.App.2d 17, 20, 315 P.2d 480, 482 (Dist. Ct. App. 1957) (states Massachusetts rule without qualification).
DELAWARE: Wilson v. State, 49 Del. 37, 48, 109 A.2d 381, 387 (1954), cert. denied, 348 U.S. 983 (1955).
HAWAII: Territory v. Young, 37 Haw. 189, 193 (1945) (semble); Territory v. Alcosiba, 36 Haw. 231, 235 (1942) (semble).
IDAHO: State v. Van Vlack, 57 Idaho 316, 342-343, 65 P.2d 736, 748 (1937). But cf. State v. Dowell, 47 Idaho 457, 464, 276 P. 39, 41 (1929); State v. Andreason, 44 Idaho 396,
MAINE: State v. Robbins, 135 Me. 121, 121-122, 190 A. 630, 631 (1937); State v. Grover, 96 Me. 363, 365-367, 52 A. 757, 758-759 (1902).
MARYLAND: Parker v. State, 225 Md. 288, 291, 170 A.2d 210, 211 (1961); Presley v. State, 224 Md. 550, 559, 168 A.2d 510, 515 (1961), cert. denied, 368 U.S. 957 (1962); Hall v. State, 223 Md. 158, 169-170, 162 A.2d 751, 757 (1960); Linkins v. State, 202 Md. 212, 221-224, 96 A.2d 246, 250-252 (1953); Smith v. State, 189 Md. 596, 603-606, 56 A.2d 818, 821-822 (1948). But cf. Grammer v. State, 203 Md. 200, 218-219, 100 A.2d 257, 265 (1953), cert. denied, 347 U.S. 938 (1954); Jones v. State, 188 Md. 263, 270-271, 52 A.2d 484, 487-488 (1947); Peters v. State, 187 Md. 7, 15-16, 48 A.2d 586, 590 (1946); Nicholson v. State, 38 Md. 140, 155-157 (1873) (not disapproved in later cases, appear to state "orthodox" rule).
MASSACHUSETTS: Commonwealth v. Sheppard, 313 Mass. 590, 603-604, 48 N.E.2d 630, 639 (1943); Commonwealth v. Preece, 140 Mass. 276, 277, 5 N. E. 494, 495 (1885).
NEBRASKA: Cramer v. State, 145 Neb. 88, 97-98, 15 N.W.2d 323, 328-329 (1944); Schlegel v. State, 143 Neb. 497, 500, 10 N.W.2d 264, 266 (1943); cf. Gallegos v. State, 152 Neb. 831, 837-840, 43 N.W.2d 1, 5-6 (1950) (semble), aff'd on another point sub nom. Gallegos v. Nebraska, 342 U.S. 55 (1951).
NEW HAMPSHIRE: State v. Squires, 48 N.H. 364, 369-370 (1869) (seems to hold that trial judge may in his discretion follow the Massachusetts rule; otherwise he may follow the "orthodox" rule).
NEW JERSEY: State v. Tassiello, 39 N.J. 282, 291-292, 188 A.2d 406, 411-412 (1963); State v. Smith, 32 N.J. 501,
OKLAHOMA: Williams v. State, 93 Okla.Cr. 260, 265, 226 P.2d 989, 993 (1951); Lyons v. State, 77 Okla.Cr. 197, 233-237, 138 P.2d 142, 162-163 (1943), aff'd on another point sub nom. Lyons v. Oklahoma, 322 U.S. 596 (1944); Wood v. State, 72 Okla.Cr. 364, 374-375, 116 P.2d 728, 733 (1941). But cf. Cornell v. State, 91 Okla.Cr. 175, 183-184, 217 P.2d 528, 532-533 (1950); Pressley v. State, 71 Okla.Cr. 436, 444-446, 112 P.2d 809, 813-814 (1941); Rowan v. State, 57 Okla.Cr. 345, 362, 49 P.2d 791, 798 (1935) (cases which appear to state the "orthodox" rule and are nevertheless cited with approval in the first-named group of decisions).
RHODE ISLAND: State v. Boswell, 73 R.I. 358, 361, 56 A.2d 196, 198 (1947); State v. Mariano, 37 R.I. 168, 186-187, 91 A. 21, 29 (1914).
APPENDIX B TO OPINION OF MR. JUSTICE BLACK.
RULES FOLLOWED IN THE FEDERAL JUDICIAL CIRCUITS TO DETERMINE VOLUNTARINESS OF CONFESSIONS.
In Wilson v. United States, 162 U.S. 613, 624 (1896) this Court said that in federal criminal trials "When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with the direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant." This language appears to sanction either the "orthodox" rule or the Massachusetts rule. The federal courts in the various circuits, however, often citing Wilson, have given it varying interpretations.
I. Wigmore or "Orthodox" Rule.
FIRST CIRCUIT: Kemler v. United States, 133 F.2d 235, 239-240 (1943).
FIFTH CIRCUIT: Andrews v. United States, 309 F.2d 127, 129 (1962), cert. denied, 372 U.S. 946 (1963); Schaffer v. United States, 221 F.2d 17, 21 (1955); Wagner v. United States, 110 F.2d 595, 596 (1940), cert. denied, 310 U.S. 643 (1940). But cf. Duncan v. United States, 197 F.2d 935, 937-938, cert. denied, 344 U.S. 885 (1952); Patterson v. United States, 183 F.2d 687, 689-690 (1950) (appear to state Massachusetts rule).
TENTH CIRCUIT: McHenry v. United States, 308 F.2d 700, 704 (1962), cert. denied, 374 U.S. 833 (1963). But cf. United States v. Ruhl, 55 F.Supp. 641, 644-645 (D. C. D. Wyo. 1944), aff'd, 148 F.2d 173, 175 (1945) (appears to follow Massachusetts rule).
II. "New York" Rule.
SECOND CIRCUIT: United States v. Leviton, 193 F.2d 848, 852 (1951), cert. denied, 343 U.S. 946 (1952); but cf. United States v. Gottfried, 165 F.2d 360, 367 (1948), cert. denied, 333 U.S. 860 (1948) ("orthodox" rule); United States v. Lustig, 163 F.2d 85, 88-89, cert. denied, 332 U.S. 775 (1947) ("orthodox" rule); United States v. Aviles, 274 F.2d 179, 192, cert. denied, 362 U.S. 974, 982 (1960) (appears to hold no error to follow Massachusetts rule).
THIRD CIRCUIT: United States v. Anthony, 145 F.Supp. 323, 335-336 (D. C. M. D. Pa. 1956) (quotes discretionary rule of Wilson v. United States, supra, but
SIXTH CIRCUIT: Anderson v. United States, 124 F.2d 58, 67 (1941), rev'd on another point, 318 U.S. 350 (1943); McBryde v. United States, 7 F.2d 466, 467 (1925).
SEVENTH CIRCUIT: United States v. Echeles, 222 F.2d 144, 154, cert. denied, 350 U.S. 828 (1955); Cohen v. United States, 291 F. 368, 369 (1923); but cf. Murphy v. United States, 285 F. 801, 807-808 (1923), cert. denied, 261 U.S. 617 (1923) (appears to state "orthodox" rule).
EIGHTH CIRCUIT: Hayes v. United States, 296 F.2d 657, 670 (1961), cert. denied, 369 U.S. 867 (1962); Shores v. United States, 174 F.2d 838, 842 (1949).
DISTRICT OF COLUMBIA CIRCUIT: Pea v. United States, 116 U. S. App. D. C. 410, 324 F.2d 442 (1963), vacated and remanded on authority of the present case, post, p. 571; Muschette v. United States, 116 U. S. App. D. C. 239, 240, 322 F.2d 989, 990 (1963), vacated and remanded on authority of the present case, post, p. 569; Wright v. United States, 102 U. S. App. D. C. 36, 45, 250 F.2d 4, 13 (1957); Catoe v. United States, 76 U. S. App. D. C. 292, 295, 131 F.2d 16, 19 (1942); McAffee v. United States, 70 App. D. C. 142, 145, 105 F.2d 21, 24 (1939), 72 App. D. C. 60, 65, 111 F.2d 199, 204, cert. denied, 310 U.S. 643 (1940); cf. Sawyer v. United States, 112 U. S. App. D. C. 381, 303 F.2d 392, 393 (1962).
III. "Massachusetts" Rule.
FOURTH CIRCUIT: Denny v. United States, 151 F.2d 828, 833 (1945), cert. denied, 327 U.S. 777 (1946) (appears to follow Wilson v. United States, 162 U.S. 613, 624 (1896), and apply Massachusetts rule).
MR. JUSTICE CLARK, dissenting.
The Court examines the validity, under the Fourteenth Amendment, of New York's procedure to determine the voluntariness of a confession. However, as I read the record, New York's procedure was not invoked in the trial court or attacked on appeal and is not properly before us. The New York procedure providing for a preliminary hearing could be set in motion, and its validity questioned, only if objection was made to the admissibility of the confession. It is clear that counsel for petitioner in the trial court—a lawyer of 50 years' trial experience in the criminal courts, including service on the bench— did not object to the introduction of the statements made by the petitioner or ask for a preliminary hearing. His contention was that the circumstances of the sedation went to the "weight" of the statements, not to their admissibility. This is shown by his cross-examination of the State's doctor and by the dialogue at the bench thereafter.
Still, the Court strikes down the New York rule of procedure which we approved in Stein v. New York, 346 U.S. 156 (1953). The trial judge had no opportunity to pass upon the statements because no objection was raised and no hearing was requested. I agree with the Court that "[a] defendant objecting to the admission of a confession is entitled to a fair hearing . . . ." However, I cannot see why the Court reaches out and strikes down a rule which was not invoked and which is therefore not
The Court seems to imply that New York's procedure "injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness." I think not. The judge clearly covered this in his charge:
This language is just the opposite of that used in Rogers v. Richmond, 365 U.S. 534 (1961), the case upon which the Court places principal reliance.
But even if the trial judge had instructed the jury to consider truth or falsity, the order here should be for a new trial, as in Rogers v. Richmond, supra. There the Court of Appeals was directed to hold the case a reasonable time "in order to give the State opportunity to retry petitioner. . . ." At 549. (Emphasis supplied.) But the Court does not do this. It strikes down New York's procedure and then tells New York—not to retry the petitioner —merely to have the trial judge hold a hearing on the admissibility of the confession and enter a definitive determination on that issue, as under the Massachusetts rule. This does not cure the error which the Court finds present. If the trial court did so err, this Court is making a more grievous error in amending New York's rule here and then requiring New York to apply it ex post facto without benefit of a full trial. Surely under the
Believing that the constitutionality of New York's rule is not ripe for decision here, I dissent. If I am in error on this, then I join my Brother HARLAN. His dissent is unanswerable.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, dissenting.
Even under the broadest view of the restrictive effect of the Fourteenth Amendment, I would not have thought it open to doubt that the States were free to allocate the trial of issues, whether in criminal or civil cases, between judge and jury as they deemed best. The Court now holds, however, that New York's long-standing practice of leaving to the jury the resolution of reasonably disputed factual issues surrounding a criminal defendant's allegation that his confession was coerced violates due process. It is held that the Constitution permits submission of the question of coercion to the trial jury only if preceded by a determination of "voluntariness" by the trial judge—or by another judge or another jury not concerned with the ultimate issue of guilt or innocence.
The Court does make one bow to federalism in its opinion: New York need not retry Jackson if it, rather than the federal habeas corpus court, now finds, in accordance with the new ground rules, the confession to have been voluntary. I doubt whether New York, which in Jackson's original trial faithfully followed the teachings of this Court which were then applicable, will find much comfort in this gesture.
[respectfully dissent.
I.
The narrow issue of this case should not be swept up and carried along to a conclusion in the wake of broader constitutional doctrines that are not presently at stake. New York and the States which follow a like procedure do not contest or tacitly disregard either of the two "axioms" with which the Court commences its argument, ante, pp. 376-377. It is not open to dispute, and it is not disputed here, that a coerced confession may not be any part of the basis of a conviction. Nor is there question that a criminal defendant is entitled to a "fair hearing and a reliable determination" of his claim that his confession was coerced. Id., at 377. The true issue is simply whether New York's procedure for implementing those two undoubted axioms, within the framework of its own trial practice, falls below the standards of fair play which the Federal Constitution demands of the States.
New York's method of testing a claim of coercion is described in the Court's opinion, ante, at pp. 377-378. It requires the trial judge "to reject a confession if a verdict that it was freely made would be against the weight of the evidence." People v. Leyra, 302 N.Y. 353, 362, 98 N.E.2d 553, 558. The heart of the procedure, however, is reliance upon the jury to resolve disputed questions of
This choice of a jury rather than a court determination of the issue of coercion has its root in a general preference for submission to a jury of disputed issues of fact, a preference which has found expression in a state legislative determination, see New York Code of Criminal Procedure, § 419,
At the core of this decision is the Court's unwillingness to entrust to a jury the "exceedingly sensitive task," ante, p. 390, of determining the voluntariness of a confession. In particular, the Court hypothesizes a variety of ways in which the jury, wittingly or not, "may" have disregarded its instructions, and comes up with two possibilities: (1) that the jury will base a determination that a confession was voluntary on belief that it is true; (2) that, despite its belief that a confession was involuntary, the jury will rely on the confession as a basis for concluding that the defendant is guilty. These are, of course, possibilities
The Court's distrust of the jury system in this area of criminal law stands in curious contrast to the many pages in its reports in which the right to trial by jury has been extolled in every context, and affords a queer basis indeed for a new departure in federal regulation of state criminal proceedings. The Court has repeatedly rejected "speculation that the jurors disregarded clear instructions of the court in arriving at their verdict," Opper v. United States, 348 U.S. 84, 95,
In Leland v. Oregon, 343 U.S. 790, the appellant was charged with murder in the first degree. His defense was insanity.
These complex instructions,
The jury found the appellant guilty and sentenced him to death.
On appeal, the appellant argued that "the instructions may have confused the jury as to the distinction between the State's burden of proving premeditation and the other elements of the charge and appellant's burden of proving insanity." Id., at 800. This Court responded:
Every factor on which the Court relies in the present case to show the inadequacy of a jury verdict on the coerced confession issue and some factors which the Court
I am at a loss to understand how the Court, which refused to recognize the possibility of jury inadequacy in Leland, can accept that possibility here not only as a basis for reversing the judgment in this case—involving far simpler questions of fact and easily understood instructions —but as the premise for invalidating a state rule of criminal procedure of general application resting on an entirely rational state policy of long standing. Why is it not true here, as it was in Leland, that "to condemn the operation of . . . [the jury] system here would be to condemn the system generally"? Ibid.
The second case is Delli Paoli v. United States, 352 U.S. 232. There the petitioner was tried jointly with four co-defendants by federal authorities for a federal crime. The Government introduced in evidence the confession of another defendant, which was made after the conspiracy had ended and could not, therefore, be used against the petitioner. The jury was warned when the confession was admitted and again in the charge that it was to be considered only against the confessor and not against his codefendants. In fact, however, by reason of repeated express references to the petitioner and extensive corroborative detail, the confession implicated the petitioner as completely as it did the confessor. Rejecting the petitioner's
In Delli Paoli, the jury was instructed that it might give such credence as it chose to a clearly voluntary and apparently reliable confession when it considered its verdict as to one defendant, but that it must entirely disregard the same confession when it considered its verdict as to any other defendant; this despite the fact that the crime charged was a conspiracy and the confession named other defendants and described their acts in detail. In the present case, the Court believes that a jury "may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession," ante, p. 382. How can it well be said that this policy is more difficult for a jury to understand than the policy behind the rule applied in Delli Paoli? So too, the Court finds danger in this case "that matters pertaining to the defendant's guilt will infect the jury's findings of fact bearing upon voluntariness." Id., at 383. But was there not greater danger in Delli Paoli that one defendant's confession of his and his codefendants' guilt would infect the jury's deliberations bearing on the guilt of the codefendants? And was
The danger that a jury will be unable or unwilling to follow instructions is not, of course, confined to joint trials or trials involving special issues such as insanity or the admissibility of a confession. It arises whenever evidence admissible for one purpose is inadmissible for another, and the jury is admonished that it may consider the evidence only with respect to the former. E. g., Moffett v. Arabian American Oil Co., Inc., 184 F.2d 859. More broadly, it arises every time a counsel or the trial judge misspeaks himself at trial and the judge instructs the jury to disregard what it has heard. E. g., Carr v. Standard Oil Co., 181 F.2d 15. In short, the fears which guide the Court's opinion grow out of the very nature of the jury system.
Jury waywardness, if it occurs, does not ordinarily trench on rights so fundamental to criminal justice as the right not to be convicted by the use of a coerced confession. The presence of a constitutional claim in this case, however, does not provide a valid basis for distinguishing it from the other situations discussed above. There is not the least suggestion in the Court's opinion that the nature of the claim has anything to do with the trustworthiness of the evidence involved; nor could there be, since the Court's rule is entirely unconnected with the reliability of a confession. Nor, as the Delli Paoli and Leland cases amply attest, are factual issues underlying constitutional claims necessarily more beyond the jury's competence than issues underlying other claims which, albeit non-constitutional, are nevertheless of equally vital concern to the defendant involved. Finally, Delli Paoli was tried in the federal courts, where this Court has general "supervisory authority" over the administration of criminal
To show that this Court acts inconsistently with its own prior decisions does not, of course, demonstrate that it acts incorrectly. In this instance, however, the Court's constant refusal in the past to accept as a rationale for decision the dangers of jury incompetence or way-wardness, because to do so would be to "condemn the system generally," Leland, supra, at 800, does demonstrate the lack of constitutional foundation for its decision. It can hardly be suggested that a rationale which the Court has so consistently and so recently rejected, even as the basis for an exercise of its supervisory powers over federal courts, and which even now it does not attack so much as disregard, furnishes the clear constitutional warrant which alone justifies interference with state criminal procedures.
II.
The hollowness of the Court's holding is further evidenced by its acceptance of the so-called "Massachusetts rule," see ante, pp. 378-379 and note 8, under which the trial judge decides the question of voluntariness and, if he decides against the defendant, then submits the question to the jury for its independent decision.
The heart of the supposed distinction is the requirement under the Massachusetts rule that the judge resolve disputed questions of fact and actually determine the issue of coercion; under the New York rule, the judge decides only whether a jury determination of voluntariness would be "against the weight of the evidence." See, supra, p. 428. Since it is only the exclusion of a confession which is conclusive under the Massachusetts rule, it is likely that where there is doubt—the only situation in which the theoretical difference between the two rules would come into play—a trial judge will resolve the doubt in favor of admissibility, relying on the final determination by the jury.
The fundamental rights which are a part of due process do not turn on nice theoretical distinctions such as those existing between the New York and Massachusetts rules.
III.
My disagreement with the majority does not concern the wisdom of the New York procedure. It may be that in the abstract the problems which are created by leaving to the jury the question of coercion should weigh more heavily than traditional use of the jury system. Be that
It should not be forgotten that in this country citizens must look almost exclusively to the States for protection against most crimes. The States are charged with responsibility for marking the area of criminal conduct, discovering and investigating such conduct when it occurs, and preventing its recurrence. In this case, for example, the crime charged—murder of a policeman who was attempting to apprehend the defendant, in flight from an armed robbery—is wholly within the cognizance of the States. Limitations on the States' exercise of their responsibility to prevent criminal conduct should be imposed only where it is demonstrable that their own adjustment of the competing interests infringes rights fundamental to decent society. The New York rule now held unconstitutional is surely not of that character.
IV.
A final word should be said about the separate question of the application of today's new federally imposed rule of criminal procedure to trials long since concluded. The Court apparently assumes the answer to this question, for I find nothing in its opinion to suggest that its holding will not be applied retroactively.
To say, as the Court does, that New York was "not without support in the decisions of this Court," ante, p. 395, when it tried Jackson according to its existing rules
I would affirm.
FootNotes
"[W]e have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings. State procedural rules plainly must yield to this overriding federal policy." Id., at 426-427.
No one suggests that the petitioner, Jackson, "after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures," the only ground for which relief may be denied in federal habeas corpus for failure to raise a federal constitutional claim in the state courts. Fay v. Noia, 372 U.S. 391, 439. See also Johnson v. Zerbst, 304 U.S. 458.
"Q. Where did you meet the officer? A. On the street.
"Q. What happened when you met him? A. I said, `There was a fight upstairs.'
"Q. Then what? A. He insisted I go with him so I got the best of him.
"Q. How did you get the best of him? A. I know Judo.
"Q. You threw him over? A. Yeah.
"Q. Where was your gun while you were giving him the Judo? A. In my holster.
"Q. After you threw him to the ground, did you pull your gun? where was the holster? A. On my shoulder.
"Q. After you threw him to the ground, what did you do about your gun? A. He went for his gun.
"Q. What did you do? A. I got mine out first.
"Q. Did you point the gun at him? A. Yeah.
"Q. What did you say to him? A. Told him not to be a hero.
.....
"Q. How many shots did you fire at the officer? A. I don't know.
"Q. Was it more than one? A. Yeah.
"Q. Who fired first, you or the police officer? A. I beat him to it.
"Q. How many times did you fire at him? A. I don't know; twice probably.
"Q. Did he go down? Did he fall down? A. Yeah.
"Q. What did you do? A. I shot. I didn't know. I knew I was shot. While I was on the ground he fired the gun."
"By Mr. Healy:
"Q. Could you tell us what time demerol was prescribed for him?
A. From our records it was stated here. It was given at 3:55 a.m.
"Q. 3:55. Well, will that put you to sleep, demerol, Doctor?
A. Well, it will make you—
"Q. Dopey? A. It will make you dopey.
"Q. And what was the other one, atropine—
"The Court: Atropine, a-t-r-o-p-i-n-e-.
"By Mr. Healy:
"Q. Atropine, what is that? A. Oh, it is not atropine. It is scopolamine.
"Q. What is that, Doctor? A. It dries up the secretion.
"The Court: It dries up the secretion?
"The Witness: Of the throat and the pharynges and the upper respiratory tract.
.....
"Redirect Examination by Mr. Schor:
"Q. Doctor, you just told us that demerol makes a person dopey; right? A. Yes, sir.
"Q. How long does it take from the time it is administered until the patient feels the effect? A. Well, it manifests its action about fifteen minutes after it is injected.
"Q. Fifteen minutes later? A. About fifteen minutes later.
.....
"By Mr. Healy:
.....
"Q. So if a person was in good health and took demerol, the effect wouldn't be any different? A. Not much different.
.....
"Q. How about a person who, for instance, has been shot through the liver, as your report shows there? Would that be the same time as for a healthy person? Do you mean that, Doctor? A. Yes, sir.
.....
"Q. The report—the record shows that he had lost 500 cc's of blood. Now, I am asking you, would that make any difference in the time that this—A. I don't think so."
"Mr. Healy: Some kind.
"The Court: And therefore he is going to contend and he does now that the confession hasn't the weight the law requires. Is that your purpose?
"Mr. Healy: That's correct. There are two, one statement and another statement. One statement to the police and one statement to the District Attorney.
.....
"Mr. Healy: Mr. Lentini being the hearing reporter. That was taken at 3:55.
"The Court: That's the time that you say he was in no mental condition to make the statement?
"Mr. Healy: That's correct.
"The Court: Is that correct?
"Mr. Healy: That's correct."
"Under our law, a confession, even if true and accurate, if involuntary, is not admissible, and if it is left for the jury to determine whether or not it was voluntary, its decision is final. If you say it was involuntarily obtained, it goes out of the case. If you say it was voluntarily made, the weight of it is for you. So I am submitting to you as a question of fact to determine whether or not (a) this statement was made by Jackson, or allegedly made by Jackson, whether it was a voluntary confession, and whether it was true and accurate. That decision is yours.
"Should you decide under the rules that I gave you that it is voluntary, true and accurate, you may use it, and give it the weight you feel that you should give it. If you should decide that it is involuntary, exclude it from the case. Do not consider it at all. In that event, you must go to the other evidence in the case to see whether or not the guilt of Jackson was established to your satisfaction outside of the confession, beyond a reasonable doubt.
"If you should determine that Jackson made this confession, and that it was a true confession, and you have so determined from the evidence, then if you should decide that it was gotten by influence, of fear produced by threats, and if that is your decision, then reject it.
"I repeat to you again, the burden of proving the accuracy, truth, and the voluntariness of the confession always rests upon the prosecution."
There is no issue raised as to whether these instructions stated an adequate and correct federal standard for determining the voluntariness of Jackson's confession.
Once the confession is properly found to be voluntary by the judge, reconsideration of this issue by the jury does not, of course, improperly affect the jury's determination of the credibility or probativeness of the confession or its ultimate determination of guilt or innocence.
Because of the above-described difficulties, annotators and commentators have not attempted definitive classifications of jurisdictions following the Massachusetts procedure separate from those following the New York practice. See 170 ALR 568; 85 ALR 870; Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317 (1954); 3 Wigmore, Evidence (3d ed. 1940), § 861, n. 3.
"The formal distinction between the New York and Massachusetts procedures is often blurred in appellate opinions. Under either procedure, the trial court faced with an objection to the admissibility of a confession, must rule on that objection, i. e., must determine whether the jury is to hear the challenged confession. But the controlling question is different under the two procedures. . . . Since courts which require the ultimate submission of the voluntariness issue to the jury refer to the necessity of a judicial determination without specifying its character, it is sometimes difficult to determine which of two procedures is being approved . . . ." Meltzer, supra, at 323-324.
Those jurisdictions where it appears unclear from appellate court opinions whether the Massachusetts or New York procedure is used in the trial court are listed in the Appendix.
"The case of a confession induced by physical or mental coercion deserves special mention. The protection which the orthodox rule or the Massachusetts doctrine affords the accused is of major value to him. A fair consideration of the evidence upon the preliminary question is essential; in this consideration the truth or untruth of the confession is immaterial. Due process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . The rule excluding a coerced confession is more than a rule excluding hearsay. Whatever may be said about the orthodox reasoning that its exclusion is on the ground of its probable falsity, the fact is that the considerations which call for the exclusion of a coerced confession are those which call for the protection of every citizen, whether he be in fact guilty or not guilty. And the rule of exclusion ought not to be emasculated by admitting the evidence and giving to the jury an instruction which, as every judge and lawyer knows, cannot be obeyed." Morgan, Some Problems of Proof Under the Anglo-American System of Litigation (1956), 104-105.
A finding that the confession is voluntary prior to admission no more affects the instructions on or the jury's view of the reliability of the confession than a finding in a preliminary hearing that evidence was not obtained by an illegal search affects the instructions on or the jury's view of the probativeness of this evidence.
The failure to distinguish between the discrete issues of voluntariness and credibility is frequently reflected in opinions which declare that it is the province of the court to resolve questions of admissibility of confessions, as with all other questions of admissibility of evidence, the province of the jury to determine issues of credibility, but which then approve the trial court's submission of the voluntariness question to the jury. Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi L. Rev. 317, 320-321 (1954).
"When there is a conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury with the direction that they should reject the confession if upon the whole evidence they are satisfied it was not the voluntary act of the defendant. Commonwealth v. Preece, 140 Mass. 276." Id., at 624.
The Court held in United States v. Carignan, 342 U.S. 36, 38, that it was reversible error for a federal court to refuse a defendant the opportunity to testify before the judge and out of the presence of the jury on the facts surrounding the obtaining of a confession claimed to be involuntary. The Court explicitly followed this holding in Smith v. United States, 348 U.S. 147, 151, when a defendant's asserted deprivation of a preliminary hearing on admissibility before the judge during the trial was rejected solely because "the trial judge had already held a hearing on this issue in passing on the pretrial motion to suppress evidence."
"We think it clear that this defendant was entitled to such an opportunity to testify [in the absence of the jury as to the facts surrounding the confession]. An involuntary confession is inadmissible. Wilson v. United States, 162 U.S. 613, 623. Such evidence would be pertinent to the inquiry on admissibility and might be material and determinative. The refusal to admit the testimony was reversible error."
"Mr. Healy: Some kind.
"The Court: And therefore he is going to contend and he does now that the confession hasn't the weight the law requires. Is that your purpose?
"Mr. Healy: That's correct. There are two, one statement and another statement. One statement to the police and one statement to the District Attorney.
"The Court: Well, the one to the police was what hour, I would like to know, and the one to the District Attorney was what hour?
"Mr. Healy: The one to the police.
"Mr. Schor: To the police, to Detective Kaile, at two o'clock.
"The Court: Get the statement.
"Mr. Healy: The statement that I raised the point about. This is the statement taken by the District Attorney, by Mr. Postal.
"The Court: Yes.
"Mr. Healy: Mr. Lentini being the hearing reporter. That was taken at 3:55.
"The Court: That's the time that you say he was in no mental condition to make the statement?
"Mr. Healy: That's correct.
"The Court: Is that correct?
"Mr. Healy: That's correct."
Annotations in 85 ALR 870 and 170 ALR 567 recognize only two general practices, dividing the States into those in which "voluntariness [is] solely for [the] court" (the so-called "orthodox" rule, ante, p. 378) and those in which "voluntariness [is] ultimately for [the] jury," with some jurisdictions listed as "doubtful." Massachusetts and New York are both listed as jurisdictions in which the question is ultimately for the jury. See also Ritz, Twenty-Five Years of State Criminal Confession Cases in the U. S. Supreme Court, 19 Wash. & Lee L. Rev. 35, 55-57 (1962). Although recognizing the difference between the two rules, Professor Ritz states that "the distinctions in the different views may be more semantical than real." Id., at 57 (footnote omitted). He asks:
"Is the trial judge's finding under the New York View that a confession is 'not involuntary' so that it may go to the jury very much different from the trial judge's finding under the Massachusetts View that a confession is 'voluntary,' with the jury given an opportunity to pass again on the same question?" Id., at 57, n. 120.
In Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317 (1954), the distinction between the rules is defended, but the author states that "the formal distinction between the New York and Massachusetts procedures is often blurred in appellate opinions," id., at 323-324, and that ". . . it is sometimes difficult to determine which of two procedures is being approved, or whether a distinction between the two is even recognized." Id., at 324 (footnote omitted).
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