By an equally divided Court, defendant's conviction of first-degree murder was upheld in People v. Walker, 371 Mich. 599. Rehearing and reargument were granted.
In fairness to the circuit bench, the prosecuting attorneys of the State, the defense bar, and through them all, to the ultimate repository of our judicial responsibility — the citizenry of Michigan — we owe a duty to speak clearly of the effect of Jackson v. Denno, 378 U.S. 368 (84 S.Ct. 1774, 12 L ed 2d 908) handed down since our previous decision herein.
If we read Jackson v. Denno, supra, correctly the action of the trial judge in submitting the question
The question in Jackson v. Denno, supra, as here, was the admissibility of a confession claimed to have been involuntarily made. The New York State court, where Jackson was tried and convicted, admitted the confession under its rule.
The Court then answered (pp 386-391):
"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
"But we do not rest on this ground alone, for the other alternative hypothesized in Stein — that the jury found the confession involuntary and disregarded it — is equally unacceptable. Under the New York procedure, the fact of a defendant's confession is solidly implanted in the jury's mind, for it has not only heard the confession, but it has been instructed to consider and judge its voluntariness and is in position to assess whether it is true or false. If it finds the confession involuntary, does the jury — indeed, can it — then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does the jury unconsciously lay them to rest by resort to the confession? Will uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt actually result in acquittal when the jury knows the defendant has given a truthful confession?
"It is difficult, if not impossible, to prove that a confession which a jury has found to be involuntary
"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.
"`This court has recognized that coercion can be mental as well as physical and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of "persuasion."' Blackburn v. Alabama, 361 U.S. 199, 206 (80 S.Ct. 274, 4 L ed 2d 242).
"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, an illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence. See Wilson v. United States, 162 U.S. 613 (16 S.Ct. 895, 40 L ed 1090); United States v. Carignan, 342 U.S. 36 (72 S.Ct. 97, 96 L ed 48); Smith v. United States, 348 U.S. 147 (75 S.Ct. 194, 99 L ed 192). Where pure factual considerations are an important ingredient, which is true in the usual case, appellate review, in this Court is, as a practical matter, an inadequate
With the fall of the New York rule, Michigan's falls also.
Then follows this all important footnote (19), in Jackson, supra 391:
"Whether the trial judge, another judge, or another jury, but not the convicting jury, fully resolves the issue of voluntariness is not a matter of concern here. To this extent we agree with Stein that the States are free to allocate functions between judge and jury as they see fit."
In the area of constitutional interpretation we are obligated to accept the majority view of the Federal Supreme Court however we may individually assess in this case the dissents of Justices Black, Clark, and Harlan, in which latter Justice Stewart joined.
Since, then, the issue of the voluntariness of the confession was determined under a rule now determined to have been unconstitutional, we must remand the case for further proceedings. At this point, however, it becomes critical to our criminal procedure that we indicate precisely for what we remand.
Capsulized, the question is: Will Michigan entrust the now required separate hearing on the issue of voluntariness to the trial judge alone and make his determination thereof final? This is the so-called "orthodox" rule. Under this rule, if the judge finds on a proper record made the confession to be involuntary, the matter ends there and the jury never considers it. Contrariwise, if the judge determines it to have been voluntarily made, it is admitted. The issue of voluntariness is not submitted to the jury. Jury consideration is limited to its weight and credibility. This rule is in legal substance an extension of the present concept of the admissibility of evidence challenged on a motion to suppress. If the evidence is suppressed, again the matter ends there. If it is admitted, the jury may still consider its evidentiary weight.
The essential difference between the foregoing and the Massachusetts rule is that under the latter, if the trial judge finds the confession involuntary, it is still, of course, not admitted. However, if he determines it to have been voluntarily given and admits it, the jury still may disregard his finding and by its own deliberation, under instruction, find it to have been involuntarily given, and thus disregard it completely.
We think the latter rule contains a contradiction in terms. If we arrogate to the trial judge the right
We therefore release our jurisdiction of the cause and direct the recorder's court to assume jurisdiction to make a determination upon a separate record upon the issue of the voluntariness of the confession only. At this hearing, we hold the defendant may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained. We hold further that by so doing defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered. Neither does he waive any of the other rights stemming from his choice not to testify. This we believe comports with the apparent intention of Jackson, supra, to require the issue of the voluntariness of a confession to be determined completely apart from and independent of the consideration of that issue by the jury which is considering guilt or innocence under established procedures.
If the trial judge, on the basis of the separate hearing and record made, determines that the confession was involuntarily given, defendant will thereupon instanter be granted a new trial. Contrariwise, if he determines the confession to have been voluntarily given, and thus admissible in evidence, defendant will have had a trial affording him constitutional due process. This we believe likewise accords with the intent of the opinion in Jackson, supra 393, 394:
"It is New York [Michigan], therefore, not the Federal habeas corpus court, which should first provide Jackson with that which he has not yet had
Accordingly, the case is remanded to the recorder's court for the further proceedings herein directed.
KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, and ADAMS, JJ., concurred.