Following a pretrial suppression hearing at which conflicting
evidence was presented as to the voluntariness of a confession that
petitioner had given the police, the trial judge, presumably
applying the Illinois preponderance of the evidence standard, held
the confession admissible, and it was introduced into evidence at
the trial, which resulted in petitioner's conviction. The judge had
instructed the jury as to the prosecution's burden of proving
guilt, but did not instruct that the jury had to find the
confession voluntary before it could be used in reaching its
verdict. In a habeas corpus proceeding petitioner challenged his
conviction. The District Court denied relief, and the Court of
Appeals affirmed. Petitioner contends, relying upon
In re
Winship, 397 U. S. 358,
that the trial judge should have found the confession voluntary
beyond a reasonable doubt before admitting it into evidence, or,
alternatively, that the admissibility of the confession as evidence
in a criminal trial (quite apart from its probative value) had to
be determined by a reasonable doubt standard to protect the values
that exclusionary rules are designed to serve. Petitioner also
urges that, even though the trial judge ruled on his coercion
claim, he was entitled, under
Duncan v. Louisiana,
391 U. S. 145, to
have the jury decide that issue anew.
Held:
1. The hearing on the voluntariness of a confession required by
this Court's decision in
Jackson v. Denno, 378 U.
S. 368, is not designed to implement the presumption of
innocence and enhance the reliability of jury verdicts, but to
prevent the use of a coerced confession as violative of due process
quite apart from its truth or falsity. Consequently, determining
the admissibility of a confession by a preponderance of the
evidence is not inconsistent with the mandate of
In re Winship,
supra. Pp.
404 U. S.
482-487.
2. Petitioner has not demonstrated that admissibility rulings
based on the preponderance of evidence standard are unreliable or
that imposition of any higher standard under expanded exclusionary
rules would be sufficiently productive to outweigh the
Page 404 U. S. 478
public interest in having probative evidence available to
juries. pp.
404 U. S.
487-489.
3. The procedure followed here comported with the requirements
of
Jackson, supra, and petitioner was not entitled to have
the voluntariness issue which had been resolved by the trial judge
also submitted to a jury for its separate consideration. Nor did
Duncan, supra, change the rule that determining the
admissibility of evidence is a function of the court, rather than
of the jury. Pp.
404 U. S.
489-490.
Affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART and BLACKMUN, JJ., joined. BRENNAN, J., filed a
dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined,
post, p.
404 U. S. 490.
POWELL and REHNQUIST, JJ., took no part in the consideration or
decision of the case.
MR. JUSTICE WHITE delivered the opinion of the Court.
In 1964, this Court held that a criminal defendant who
challenges the voluntariness of a confession made to officials and
sought to be used against him at his trial has a due process right
to a reliable determination that the confession was, in fact,
voluntarily given, and not the outcome of coercion which the
Constitution forbids.
Jackson v. Denno, 378 U.
S. 368. While our decision made plain that only
voluntary confessions may be admitted at the trial of guilt or
innocence, we did not then announce, or even suggest, that the
factfinder at a coercion hearing need judge voluntariness with
reference to an especially severe standard of proof.
Nevertheless,
Page 404 U. S. 479
since
Jackson, state and federal courts have addressed
themselves to the issue with a considerable variety of opinions.
[
Footnote 1] We granted
certiorari in this case to resolve the question. 401 U.S. 992
(1971).
Page 404 U. S. 480
Petitioner Lego was convicted of armed robbery in 1961 after a
jury trial in Superior Court, Cook County, Illinois. The court
sentenced him to prison for 25 to 50 years. The evidence introduced
against Lego at trial included a confession he had made to police
after arrest and while in custody at the station house. Prior to
trial, Lego sought to have the confession suppressed. He did not
deny making it, but did challenge that he had done so voluntarily.
The trial judge conducted a hearing, out of the presence of the
jury, at which Lego testified that police had beaten him about the
head and neck with a gun butt. His explanation of this treatment
was that the local police chief, a neighbor and former classmate of
the robbery victim, had sought revenge upon him. Lego introduced
into evidence a photograph that had been taken of him at the county
jail on the day after his arrest. The photograph showed that
petitioner's face had been swollen and had traces of blood on it.
Lego admitted that his face had been scratched in a scuffle with
the robbery victim, but maintained that the encounter did not
explain the condition shown in the photograph. The police chief and
four officers also testified. They denied either beating or
threatening petitioner and disclaimed knowledge that any other
officer had done so. The trial judge resolved this credibility
problem in favor of the police and ruled the confession admissible.
[
Footnote 2] At trial, Lego
testified in his own behalf. Although he did not dispute the truth
of the confession directly, he did tell his version of the events
that had transpired at the
Page 404 U. S. 481
police station. The trial judge instructed the jury as to the
prosecution's burden of proving guilt. He did not instruct that the
jury was required to find the confession voluntary before it could
be used in judging guilt or innocence. [
Footnote 3] On direct appeal, the Illinois Supreme Court
affirmed the conviction.
People v. Lego, 32 Ill. 2d
76,
203 N.E.2d
875 (1965).
Four years later, petitioner challenged his conviction by
seeking a writ of habeas corpus in the United States District Court
for the Northern District of Illinois. He maintained that the trial
judge should have found the confession voluntary beyond a
reasonable doubt before admitting it into evidence. Although the
judge had made no mention of the standard he used, Illinois law
provided that a confession challenged as involuntary could be
admitted into evidence if, at a hearing outside the presence of the
jury, the judge found it voluntary by a preponderance of the
evidence. [
Footnote 4] In the
alternative, petitioner argued that the voluntariness question
should also have been submitted to the jury for its separate
consideration.
Page 404 U. S. 482
After first denying the writ for failure to exhaust state
remedies, the District Court granted a rehearing motion, concluded
that Lego had no state remedy then available to him, and denied
relief on the merits.
United States ex rel. Lego v.
Pate, 308 F. Supp.
38 (1970). [
Footnote 5] The
Court of Appeals for the Seventh Circuit affirmed. [
Footnote 6]
I
Petitioner challenges the judgment of the Court of Appeals on
three grounds. The first is that he was not proved guilty beyond a
reasonable doubt, as required by
In re Winship,
397 U. S. 358
(1970), because the confession used against him at his trial had
been proved voluntary only by a preponderance of the evidence.
Implicit in the claim is an assumption that a voluntariness hearing
is designed to enhance the reliability of jury verdicts. To judge
whether that is so, we must return to
Jackson v. Denno,
378 U. S. 368
(1964).
In New York prior to
Jackson, juries most often
determined the voluntariness of confessions, and hence whether
confessions could be used in deciding guilt or innocence. Trial
judges were required to make an initial determination, and could
exclude a confession, but only if it could not under any
circumstances be deemed voluntary. [
Footnote 7] When voluntariness was fairly debatable,
either because a dispute of fact existed or because reasonable men
could have drawn differing inferences from undisputed facts, the
question whether the confession violated due process was for the
jury. This meant the confession
Page 404 U. S. 483
was introduced at the trial itself. If evidence challenging its
voluntariness were adduced, the jury was instructed first to pass
upon voluntariness and, if it found the confession involuntary,
ignore it in determining guilt. If, on the other hand, the
confession were found to be voluntary, the jury was then free to
consider its truth or falsity and give the confession an
appropriate weight in judging guilt or innocence.
We concluded that the New York procedure was constitutionally
defective because at no point along the way did a criminal
defendant receive a clear-cut determination that the confession
used against him was in fact, voluntary. The trial judge was not
entitled to exclude a confession merely because he himself would
have found it involuntary, and, while we recognized that the jury
was empowered to perform that function, we doubted it could do so
reliably. Precisely because confessions of guilt, whether coerced
or freely given, may be truthful and potent evidence, we did not
believe a jury could be called upon to ignore the probative value
of a truthful but coerced confession; it was also likely, we
thought, that, in judging voluntariness itself, the jury would be
influenced by the reliability of a confession it considered an
accurate account of the facts. "It is now axiomatic," we said,
"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 to object to the use of the confession
Page 404 U. S. 484
and to have a fair hearing and a reliable determination on the
issue of voluntariness, a determination uninfluenced by the truth
or falsity of the confession.
Rogers v. Richmond, supra.
[
Footnote 8]"
We did not think it necessary, or even appropriate, in
Jackson to announce that prosecutors would be required to
meet a particular burden of proof in a
Jackson hearing
held before the trial judge. [
Footnote 9] Indeed, the then-established duty to determine
voluntariness had not been framed in terms of a burden of proof,
[
Footnote 10] nor has it
been since
Jackson was decided. [
Footnote 11] We could fairly assume then, as we can
now, that a judge would admit into evidence only those confessions
that he reliably found, at least by a preponderance of the
evidence, had been made voluntarily.
We noted in
Jackson that there may be a relationship
between the involuntariness of a confession and its unreliability.
[
Footnote 12] But our
decision was not based in the
Page 404 U. S. 485
slightest on the fear that juries might misjudge the accuracy of
confessions and arrive at erroneous determinations of guilt or
innocence. That case was not aimed at reducing the possibility of
convicting innocent men.
Quite the contrary, we feared that the reliability and
truthfulness of even coerced confessions could impermissibly
influence a jury's judgment as to voluntariness. The use of coerced
confessions, whether true or false, is forbidden because the method
used to extract them offends constitutional principles.
Rogers
v. Richmond, 365 U. S. 534,
365 U. S.
540-541 (1961). [
Footnote 13] The procedure we established in
Jackson was designed to safeguard the right of an
individual, entirely apart from his guilt or innocence, not to be
compelled to condemn himself by his own utterances. Nothing in
Jackson questioned the province or capacity of juries to
assess the truthfulness of confessions. Nothing in that opinion
took from the jury any evidence relating to the accuracy or weight
of confessions admitted into evidence. A defendant has
Page 404 U. S. 486
been as free since
Jackson as he was before to
familiarize a jury with circumstances that attend the taking of his
confession, including facts bearing upon its weight and
voluntariness. [
Footnote 14]
In like measure, of course, juries have been at liberty to
disregard confessions that are insufficiently corroborated or
otherwise deemed unworthy of belief.
Since the purpose that a voluntariness hearing is designed to
serve has nothing whatever to do with improving the reliability of
jury verdicts, we cannot accept the charge that judging the
admissibility of a confession by a preponderance of the evidence
undermines the mandate of
In re Winship, 397 U.
S. 358 (1970). Our decision in
Winship was not
concerned with standards for determining the admissibility of
evidence or with the prosecution's burden of proof at a suppression
hearing when evidence is challenged on constitutional grounds.
Winship went no further than to confirm the fundamental
right that protects
"the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged."
Id. at
397 U. S. 364.
A high standard of proof is
Page 404 U. S. 487
necessary, we said, to ensure against unjust convictions by
giving substance to the presumption of innocence.
Id. at
397 U. S. 363.
A guilty verdict is not rendered less reliable or less consonant
with
Winship simply because the admissibility of a
confession is determined by a less stringent standard. Petitioner
does not maintain that either his confession or its voluntariness
is an element of the crime with which he was charged. He does not
challenge the constitutionality of the standard by which the jury
was instructed to decide his guilt or innocence; nor does he
question the sufficiency of the evidence that reached the jury to
satisfy the proper standard of proof. Petitioner's rights under
Winship have not been violated. [
Footnote 15]
II
Even conceding that
Winship is inapplicable because the
purpose of a voluntariness hearing is not to implement the
presumption of innocence, petitioner presses for reversal on the
alternative ground that evidence offered against a defendant at a
criminal trial and challenged on constitutional grounds must be
determined admissible beyond a reasonable doubt in order to give
adequate protection to those values that exclusionary rules are
designed to serve.
Jackson v. Denno, supra, an offspring
of
Brown v. Mississippi, 297 U. S. 278
(1936), requires judicial rulings on voluntariness prior to
admitting confessions.
Miranda v.
Arizona, 384
Page 404 U. S. 488
U.S. 436 (1966), excludes confessions flowing from custodial
interrogations unless adequate warnings were administered and a
waiver was obtained.
Weeks v. United States, 232 U.
S. 383 (1914), and
Mapp v. Ohio, 367 U.
S. 643 (1961), make impermissible the introduction of
evidence obtained in violation of a defendant's Fourth Amendment
rights. In each instance, and without regard to its probative
value, evidence is kept from the trier of guilt or innocence for
reasons wholly apart from enhancing the reliability of verdicts.
These independent values, it is urged, themselves require a
stricter standard of proof in judging admissibility.
The argument is straightforward, and has appeal. But we are
unconvinced that merely emphasizing the importance of the values
served by exclusionary rules is itself sufficient demonstration
that the Constitution also requires admissibility to be proved
beyond reasonable doubt. [
Footnote 16] Evidence obtained in violation of the Fourth
Amendment has been excluded from federal criminal trials for many
years.
Weeks v. United States, supra. The same is true of
coerced confessions offered in either federal or state trials.
Bram v. United States, 168 U. S. 532
(1897);
Brown v. Mississippi, supra. But, from our
experience over this period of time, no substantial evidence has
accumulated that federal rights have suffered from determining
admissibility by a preponderance of the evidence. Petitioner offers
nothing to suggest that admissibility rulings have been unreliable
or otherwise wanting in quality because not based on some higher
standard. Without good cause, we are unwilling to expand currently
applicable exclusionary rules by erecting additional barriers to
placing truthful and probative evidence
Page 404 U. S. 489
before state juries and by revising the standards applicable in
collateral proceedings. Sound reason for moving further in this
direction has not been offered here, nor do we discern any at the
present time. This is particularly true since the exclusionary
rules are very much aimed at deterring lawless conduct by police
and prosecution, and it is very doubtful that escalating the
prosecution's burden of proof in Fourth and Fifth Amendment
suppression hearings would be sufficiently productive in this
respect to outweigh the public interest in placing probative
evidence before juries for the purpose of arriving at truthful
decisions about guilt or innocence.
To reiterate what we said in
Jackson: when a confession
challenged as involuntary is sought to be used against a criminal
defendant at his trial, he is entitled to a reliable and clear-cut
determination that the confession was in fact, voluntarily
rendered. Thus, the prosecution must prove at least by a
preponderance of the evidence that the confession was voluntary. Of
course, the States are free, pursuant to their own law, to adopt a
higher standard. They may indeed differ as to the appropriate
resolution of the values they find at stake. [
Footnote 17]
III
We also reject petitioner's final contention that, even though
the trial judge ruled on his coercion claim, he was entitled to
have the jury decide the claim anew. To the extent this argument
asserts that the judge's determination was insufficiently reliable,
it is no more persuasive than petitioner's other contentions. To
the extent the position assumes that a jury is better suited than a
judge to determine voluntariness, it, questions the basic
assumptions of
Jackson v. Denno; it also ignores
Page 404 U. S. 490
that
Jackson neither raised any question about the
constitutional validity of the so-called orthodox rule for judging
the admissibility of confessions nor even suggested that the
Constitution requires submission of voluntariness claims to a jury
as well as a judge. Finally,
Duncan v. Louisiana,
391 U. S. 145
(1968), which made the Sixth Amendment right to trial by jury
applicable to the States, did not purport to change the normal rule
that the admissibility of evidence is a question for the court,
rather than the jury. Nor did that decision require that both judge
and jury pass upon the admissibility of evidence when
constitutional grounds are asserted for excluding it. We are not
disposed to impose as a constitutional requirement a procedure we
have found wanting merely to afford petitioner a second forum for
litigating his claim.
The decision of the Court of Appeals is
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
[
Footnote 1]
State courts that have considered the question since
Jackson have adopted a variety of standards, most of them
founded upon state law. Many have sanctioned a standard of proof
less strict than beyond a reasonable doubt, including proof of
voluntariness by a preponderance of the evidence or to the
satisfaction of the court or proof of voluntariness in fact.
E.g., Duncan v. State, 278 Ala. 145,
176 So. 2d
840 (1965);
State v. Dillon, 93 Idaho 698, 471 P.2d
553 (1970),
cert. denied, 401 U.S. 942 (1971);
People
v. Harper, 36 Ill. 2d
398,
223 N.E.2d
841 (1967);
State v. Milow, 199 Kan. 576,
433 P.2d 538
(1967);
Barnhart v. State, 5 Md.App. 222,
246 A.2d 280 (1968);
Commonwealth v. White, 353 Mass.
409,
232
N.E.2d 335 (1967);
State v. Nolan, 423 S.W.2d
815 (Mo.1968);
State v. White, 146 Mont. 226, 405 P.2d
761 (1965),
cert. denied, 384 U.S. 1023 (1966);
State
v. Brewton, 238 Ore. 590,
395 P.2d
874 (1964);
Commonwealth ex rel. Butler v. Rundle, 429
Pa. 141, 239 A.2d 426 (1968);
Monts v. State, 218 Tenn.
31,
400
S.W.2d 722 (1966);
State v. Davis, 73 Wash. 2d
271,
438 P.2d
185 (1968).
Other States, using state law or not specifying a basis, require
proof beyond a reasonable doubt.
E.g., State v. Ragdale,
249 La. 420,
187 So. 2d
427 (1966),
cert. denied, 385 U.S. 1029 (1967);
State v. Keiser, 274 Minn. 265,
143 N.W.2d
75 (1966);
State v. Yough, 49 N.J. 587,
231 A.2d
598 (1967);
People v. Huntley, 15 N.Y.2d 72, 204
N.E.2d 179 (1965);
State v. Thundershield, 83 S.D. 414,
160 N.W.2d
408 (1968);
State ex rel. Goodchild v. Burke, 27
Wis.2d 244, 133 N.W.2d 753 (1965),
cert. denied, 384 U.S.
1017 (1966).
Two federal courts have held as an exercise of supervisory power
that voluntariness must be proved beyond a reasonable doubt.
Ralph v. Warden, 438 F.2d 786, 793 (CA4 1970), clarifying
United States v. Inman, 352 F.2d 954 (CA4 1965);
Pea
v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1967);
cf. United States v. Schipani, 289 F. Supp.
43 (EDNY 1968),
aff'd, 414 F.2d 1262 (CA2 1969),
cert. denied, 397 U.S. 922 (1970), requiring the
Government to prove beyond a reasonable doubt that certain evidence
was not tainted by violation of the Fourth Amendment.
[
Footnote 2]
In ruling the confession admissible, the judge stated:
"The petitioner has admitted under oath he had a struggle with
the complaining witness over the gun; he was wounded, obtained a
facial wound. The Officers testified he was bloody at the time he
was arrested."
"I don't believe the defendant's testimony at all that he was
beaten up by the Police. The condition he is in is well explained
by the defendant himself."
[
Footnote 3]
Illinois followed what we described in
Jackson v.
Denno, 378 U. S. 368
(1964), as "the orthodox rule, under which the judge himself solely
and finally determines the voluntariness of the confession. . . ."
Id. at
378 U. S. 378.
While the procedures of all the States could not be neatly
classified, we noted that some followed the Massachusetts
procedure, whereby the judge himself first resolves evidentiary
conflicts and determines whether a confession is, in fact,
voluntary. If he is unable so to conclude, the confession may not
be admitted into evidence. If judged voluntary, and therefore
admissible, the jury must also determine the coercion issue, and is
instructed to ignore a confession it finds involuntary.
Id. at
378 U. S. 378
n. 8. Other States had adopted the New York procedure at issue in
Jackson. Our decision in
Jackson cast no doubt
upon the orthodox and Massachusetts procedures, but did call into
question the practice of every State that did not clearly follow
one of these procedures. A thorough tabulation of what States did
in the wake of
Jackson appears in 3 J. Wigmore, Evidence
585-593 (J. Chadbourn rev.1970).
[
Footnote 4]
People v. Wagoner, 8 Ill. 2d
188,
133 N.E.2d 24
(1956);
People v. Thomlison, 400 Ill. 555, 81 N.E.2d 434
(1948).
[
Footnote 5]
Respondent makes no contention here that petitioner either
waived the right to adjudicate his federal claims or deliberately
bypassed state procedures for testing those claims.
Cf. Fay v.
Noia, 372 U. S. 391,
372 U. S. 439
(1963).
[
Footnote 6]
The Seventh Circuit's affirmance is unreported.
United
States ex rel. Lego v. Pate, No. 18313 (CA7 Oct. 8, 1970).
[
Footnote 7]
A more thorough description of the New York procedure is found
in
Jackson v. Denno, 378 U.S. at
378 U. S.
377-391.
[
Footnote 8]
Jackson v. Denno, 378 U.S. at
378 U. S.
376-377.
[
Footnote 9]
"Judge" is used here and throughout the opinion to mean a
factfinder, whether trial judge or jury, at a voluntariness
hearing. The proscription against permitting the jury that passes
upon guilt or innocence to judge voluntariness in the same
proceeding does not preclude the States from impaneling a separate
jury to determine voluntariness.
Jackson v. Denno, 378
U.S. at
378 U. S. 391
n.19.
[
Footnote 10]
See, e.g., Haynes v. Washington, 373 U.
S. 503 (1963);
Spano v. New York, 360 U.
S. 315 (1959);
Payne v. Arkansas, 356 U.
S. 560 (1958).
[
Footnote 11]
See, e.g., Frazier v. Cupp, 394 U.
S. 731 (1969);
Boulden v. Holman, 394 U.
S. 478 (1969);
Harrison v. United States,
392 U. S. 219
(1968);
Greenwald v. Wisconsin, 390 U.
S. 519 (1968);
Clewis v. Texas, 386 U.
S. 707 (1967);
Davis v. North Carolina,
384 U. S. 737
(1966);
cf. Procunier v. Atchley, 400 U.
S. 446 (1971).
[
Footnote 12]
We noted that coerced confessions are forbidden in part because
of their "probable unreliability."
Jackson v. Denno, 378
U.S. at
378 U. S.
385-386. However, it had been settled when this Court
decided
Jackson that the exclusion of unreliable
confessions is not the purpose that a voluntariness hearing is
designed to serve.
Rogers v. Richmond, 365 U.
S. 534 (1961). The sole issue in such a hearing is
whether a confession was coerced. Whether it be true or false is
irrelevant; indeed, such an inquiry is forbidden. The judge may not
take into consideration evidence that would indicate that the
confession, though compelled, is reliable, even highly so.
Id. at
365 U. S. 545.
As difficult as such tasks may be to accomplish, the judge is also
duty-bound to ignore implications of reliability in facts relevant
to coercion and to shut from his mind any internal evidence of
authenticity that a confession itself may bear.
[
Footnote 13]
In
Jackson, 378 U.S. at
378 U. S.
377-391, we traced the genesis of the view that due
process forbids the use of coerced confessions, whether or not
reliable. The Court had departed from that view in
Stein v. New
York, 346 U. S. 156
(1953), whose premise was that a confession is excludable because
of its inherent untrustworthiness. The
Stein premise was
repudiated in
Rogers v. Richmond, and
Rogers was
reaffirmed in
Davis v. North Carolina, 384 U.S. at
384 U. S. 739,
and
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 729
n. 9 (1966). That case continues to serve as the basis for
evaluating coercion claims.
See cases cited in
n 11,
supra.
[
Footnote 14]
This is the course that petitioner pursued.
Cf. Jackson v.
Denno, 378 U.S. at
378 U. S. 386
n. 13. Although 18 U.S.C. ยง 3501(a) is inapplicable here, it is
relevant to note the provision of that section:
"(a) In any criminal prosecution brought by the United States or
by the District of Columbia, a confession, as defined in subsection
(e) hereof, hall be admissible in evidence if it is voluntarily
given. Before such confession is received in evidence, the trial
judge shall, out of the presence of the jury, determine any issue
as to voluntariness. If the trial judge determines that the
confession was voluntarily made, it shall be admitted in evidence
and the trial judge shall permit the jury to hear relevant evidence
on the issue of voluntariness and shall instruct the jury to give
such weight to the confession as the jury feel it deserves under
all the circumstances."
[
Footnote 15]
Nothing is to be gained from restating the constitutional rule
as requiring proof of guilt beyond a reasonable doubt on the basis
of constitutionally obtained evidence and then arguing that rights
under
Winship are diluted unless admissibility is governed
by a high standard. Transparently, this assumes the question at
issue, which is whether a confession is admissible if found
voluntary by a preponderance of the evidence.
United States v.
Schipani, supra, n 1,
followed this unsatisfactory course in a Fourth Amendment case but
stopped short of basing the decision on the Constitution.
[
Footnote 16]
It is no more persuasive to impose the stricter standard of
proof as an exercise of supervisory power than as a constitutional
rule.
Cf. Ralph v. Warden, supra, n 1, clarifying
United States v. Inman, supra,
n 1;
Pea v. United States,
supra, n 1.
[
Footnote 17]
See cases cited in
n 1,
supra.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL join, dissenting.
When the prosecution, state or federal, seeks to put in evidence
an allegedly involuntary confession, its admissibility is
determined by the command of the Fifth Amendment that "[n]o person
. . . shall be compelled in any criminal case to be a witness
against himself."
Davis v. North Carolina, 384 U.
S. 737,
384 U. S. 740
(1966);
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 7-8
(1964);
Bram v. United States, 168 U.
S. 532,
168 U. S.
542-543 (1897). This right against compulsory
self-incrimination is the "essential mainstay" of our system of
criminal prosecution,
Malloy v. Hogan, supra, at
378 U. S. 7,
"a system in which the State must establish guilt by evidence
independently
Page 404 U. S. 491
and freely secured and may not by coercion prove its charge
against an accused out of his own mouth,"
Rogers v. Richmond, 365 U. S. 534,
365 U. S. 541
(1961). What is thereby protected from governmental invasion is,
quite simply, "the right of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own will."
Malloy v. Hogan, supra, at
378 U. S. 8.
Hence, a confession is involuntary and inadmissible unless it is
"the product of a rational intellect and a free will."
Blackburn v. Alabama, 361 U. S. 199,
361 U. S. 208
(1960);
see Reck v. Pate, 367 U.
S. 433,
367 U. S. 440
(1961).
Ideally, of course, a defendant's compelled utterance would
never be admitted into evidence against him. As we said in
Jackson v. Denno, 378 U. S. 368,
378 U. S. 376
(1964), it is "axiomatic" that a criminal conviction cannot stand
if it
"is founded, in whole or in part, upon an involuntary confession
. . . even though there is ample evidence aside from the confession
to support the conviction."
Yet I doubt that informed observers of the criminal process
would deny that at least some compelled utterances slip through,
even assuming scrupulous adherence to constitutional standards and
the most rigorous procedural protections.
Jackson was an
attempt to move that reality somewhat closer to the ideal. We there
rejected the New York rule because it "did not afford a reliable
determination of the voluntariness of the confession offered in
evidence at the trial," and consequently "did not adequately
protect [a defendant's] right to be free of a conviction based upon
a coerced confession."
Id. at
378 U. S. 377.
As the Court today points out,
"[t]he procedure we established in
Jackson was designed
to safeguard the right of an individual, entirely apart from his
guilt or innocence, not to be compelled to condemn himself by his
own utterances."
Ante at
404 U. S.
485.
There is no need to dwell upon the importance our American
concept of justice attaches to preserving the
Page 404 U. S. 492
integrity of the constitutional privilege. Both the rule that
automatically reverses a conviction when an involuntary confession
was admitted at trial and the procedure established in
Jackson for determining whether a confession was voluntary
are means to further the end that no utterance of a defendant not
the product of his own free choice will be used against him. The
Court today reaffirms what we held in
Jackson:
"[W]hen a confession challenged as involuntary is sought to be
used against a criminal defendant at his trial, he is entitled to a
reliable and clear-cut determination that the confession was in
fact, voluntarily rendered."
Ante at
404 U. S. 489.
But the Court goes on to hold that it follows from
Jackson
that "the prosecution must prove at least by a preponderance of the
evidence that the confession was voluntary."
Ibid. I
disagree. In my view, the rationale of
Jackson requires
the conclusion that the preponderance standard does not provide
sufficient protection against the danger that involuntary
confessions will be employed in criminal trials.
A
Jackson hearing normally presents the factfinder with
conflicting testimony from the defendant and law enforcement
officers about what occurred during the officers' interrogation of
the defendant. The factfinder's resolution of this conflict is
often, as a practical matter, the final resolution of the
voluntariness issue.
Jackson, supra, at
378 U. S.
390-391. This case is a typical example. Petitioner
testified that he confessed because the police had beaten him; the
police testified that there was no beating. As the Court notes,
"[t]he trial judge resolved this credibility problem in favor of
the police, and ruled the confession admissible."
Ante at
404 U. S. 480.
When the question before the factfinder is whether to believe one
or the other of two self-serving accounts of what has happened, it
is apparent that the standard of persuasion will in many instances
be of controlling significance.
Page 404 U. S. 493
See Speiser v. Randall, 357 U.
S. 513,
357 U. S.
525-526 (1958). Although the Court suggests "that
federal rights have [not] suffered from determining admissibility
by a preponderance of the evidence" and that there has been no
showing "that admissibility rulings have been unreliable . . .
because not based on some higher standard,"
ante at
404 U. S. 488,
I do not think it can be denied, given the factual nature of the
ordinary voluntariness determination, that permitting a lower
standard of proof will necessarily result in the admission of more
involuntary confessions than would be admitted were the prosecution
required to meet a higher standard. The converse, of course, is
also true. Requiring the higher standard means that some voluntary
confessions will be excluded as involuntary even though they would
have been found voluntary under the lower standard.
The standard of proof required for a criminal conviction
presents a similar situation, yet we have held that guilt must be
established by proof beyond a reasonable doubt.
In re
Winship, 397 U. S. 358,
397 U. S.
361-364 (1970);
see id. at
397 U. S.
370-372 (Harlan, J., concurring). Permitting proof by a
preponderance of the evidence would necessarily result in the
conviction of more defendants who are, in fact, innocent.
Conversely, imposing the burden of proof beyond a reasonable doubt
means that more defendants who are, in fact, guilty are found
innocent. It seems to me that the same considerations that demand
the reasonable doubt standard when guilt or innocence is at stake
also demand that standard when the question is the admissibility of
an allegedly involuntary confession.
We permit proof by a preponderance of the evidence in civil
litigation because
"we view it as no more serious in general for there to be an
erroneous verdict in the defendant's favor than for there to be an
erroneous verdict in the plaintiff's favor."
Id. at
397 U. S. 371
(Harlan, J., concurring). We do not take that view in criminal
cases.
Page 404 U. S. 494
We said in
Winship that the reasonable doubt
standard
"is a prime instrument for reducing the risk of convictions
resting on factual error. The standard provides concrete substance
for the presumption of innocence. . . ."
Id. at
397 U. S. 363.
As Mr. Justice Harlan put it in his concurring opinion, the
requirement of proof beyond a reasonable doubt is
"bottomed on a fundamental value determination of our society
that it is far worse to convict an innocent man than to let a
guilty man go free."
Id. at
397 U. S.
372.
If we permit the prosecution to prove by a preponderance of the
evidence that a confession was voluntary, then, to paraphrase Mr.
Justice Harlan, we must be prepared to justify the view that it is
no more serious in general to admit involuntary confessions than it
is to exclude voluntary confessions. I am not prepared to justify
that view. Compelled self-incrimination is so alien to the American
sense of justice that I see no way that such a view could ever be
justified. If we are to provide "concrete substance" for the
command of the Fifth Amendment that no person shall be compelled to
condemn himself, we must insist, as we do at the trial of guilt or
innocence, that the prosecution prove that the defendant's
confession was voluntary beyond a reasonable doubt.
* In my judgment,
to paraphrase Mr. Justice
Page 404 U. S. 495
Harlan again, the command of the Fifth Amendment reflects the
determination of our society that it is worse to permit involuntary
self-condemnation than it is to deprive a jury of probative
evidence. Just as we do not convict when there is a reasonable
doubt of guilt, we should not permit the prosecution to introduce
into evidence a defendant's confession when there is a reasonable
doubt that it was the product of his free and rational choice.
I add only that the absolute bar against the admission of a
defendant's compelled utterance at his criminal trial is
fundamentally an expression of the American commitment to the moral
worth of the individual. What we said in
Winship bears
repeating here.
"[U]se of the reasonable doubt standard is indispensable to
command the respect and confidence of the community in applications
of the criminal law. It is critical that the moral force of the
criminal law not be diluted by a standard of proof that leaves
people in doubt whether innocent men are being condemned."
Id. at
397 U. S. 364.
I believe that it is just as critical to our system of criminal
justice that, when a person's words are used against him, no
reasonable doubt remains that he spoke of his own free will.
* My view that the reasonable doubt standard must be imposed
upon the prosecution does not depend upon whether that standard
would be more effective than some lower standard in deterring
police misconduct. When a defendant challenges his confession as
involuntary,
"the constitutional inquiry is not whether the conduct of state
officers in obtaining the confession was shocking, but whether the
confession was 'free and voluntary. . . .'"
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 7
(1964). It is true that the defendant will frequently allege police
misconduct, as petitioner did here. Nevertheless, as we said in
Townsend v. Sain, 372 U. S. 293,
372 U. S. 308
(1963),
"[a]ny questioning by police officers which,
in fact,
produces a confession which is not the product of a free intellect
renders that confession inadmissible."
(Emphasis in original.)