The Federal District Court granted respondent's petition for a
writ of habeas corpus, holding that a hearing of testimony by the
state trial court, in the jury's presence, regarding the
voluntariness of an incriminating statement sought to be introduced
by the prosecution, violated respondent's constitutional rights.
The Court of Appeals affirmed. Respondent had not objected to the
procedure, and, after the evidence regarding voluntariness had been
heard, the court had ruled the statement voluntary.
Previous cases in this Court have not determined
that voluntariness hearings must necessarily be held out of the
jury's presence, and where, as here, respondent's counsel consented
to the procedure used, and the judge found the statement voluntary,
respondent was deprived of no constitutional right.
Certiorari granted; 374 F.2d 472, reversed and remanded.
Respondent was indicted by the grand jury of Essex County, New
Jersey, on July 2, 1959, for the crime of robbery while armed.
Following a plea of not guilty, he was tried before a jury,
convicted and sentenced to a term of from 16 to 23 years in the New
Jersey State Prison. On June 6, 1966, respondent filed a petition
for a writ of habeas corpus in the United States District Court for
the District of New Jersey. The District Judge determined from the
transcript of respondent's trial that the trial court had heard in
the presence of the jury testimony regarding the voluntariness of
an incriminating statement sought to be introduced by the
prosecution, held that, under prior decisions of this Court, this
procedure violated respondent's constitutional rights and
Page 389 U. S. 32
granted the writ. The Court of Appeals for the Third Circuit
affirmed, and petitioner, the Superintendent of the New Jersey
State Prison Farm, seeks a writ of certiorari.
The petition for certiorari is granted, and the judgment is
reversed. This Court has never ruled that all voluntariness
hearings must be held outside the presence of the jury, regardless
of the circumstances. Jackson v. Denno, 378 U.
(1964), held that a defendant's constitutional
rights are violated when his challenged confession is introduced
without a determination by the trial judge of its voluntariness
after an adequate hearing. A confession by the defendant found to
be involuntary by the trial judge is not to be heard by the jury
which determines his guilt or innocence. Hence, because a disputed
confession may be found involuntary and inadmissible by the judge,
it would seem prudent to hold voluntariness hearings outside the
presence of the jury. [Footnote
] In this case, however, the confession was held voluntary and
admitted as evidence suitable for consideration by the jury. In
addition, there is no claim that, because the hearing was held in
the presence of the jury it was inadequate or had any other unfair
consequences for the respondent. [Footnote 2
Page 389 U. S. 33
Finally, it is clear that the respondent in this case did not
object to having the voluntariness of his admission considered in
the presence of the jury. At his trial, the court asked defense
counsel whether there was any objection to the testimony being
taken in the presence of the jury. Defense counsel replied, "None
whatsoever." The court continued,
"As you know, it can be taken in their presence or outside of
their presence, and that is a matter of discretion with the Court,
but I am inquiring of you if you have any objections. If you did, I
would hear you, but I assume you have none."
Again counsel replied, "I have none." The evidence regarding
voluntariness, which included testimony by respondent, was then
taken, after which the court ruled that the statement was
Since trial counsel consented to the evidence on voluntariness
being taken in the presence of the jury, and the judge found the
statement voluntary, respondent was deprived of no constitutional
right. The motion of respondent for leave to proceed in forma
and the petition for certiorari are granted, the
judgment is reversed, and the case is remanded to the District
Court with instructions to dismiss the writ of habeas corpus.
MR. JUSTICE BLACK concurs in the result.
The New Jersey Supreme Court has recently announced that, from
September 11, 1967, hearings on admissibility shall be outside the
presence of the jury if the defendant so requests. See State v.
49 N.J. 373, 386, n. 2, 230 A.2d
, 496, n. 2 (1967).
In United States v. Carignan, 342 U. S.
(1951), relied upon by the trial court, reversal of a
conviction was affirmed because the trial judge, after hearing some
evidence concerning voluntariness with the jury present, refused to
permit the defendant to testify on the subject.
The other cases cited by the District Court granted writs of
habeas corpus in cases in which trial judges had made no
independent determination of voluntariness. See,
citations to those cases, United States ex rel. Pierce v.
Pinto, 259 F.
, 731 (D.C. N.J.1966).
MR. JUSTICE FORTAS, concurring in the result.
I concur in the result because of trial counsel's consent to the
taking of evidence on voluntariness in the presence of the jury.
Otherwise, I disagree. The rule of Jackson v. Denno,
378 U. S. 368
(1964), should be more than ritual. It was not intended to assure a
determination by the judge at the cost of diluting the jury's role
in the determination of voluntariness and the weight to be given to
"Just as questions of admissibility of evidence are
traditionally for the court, questions of credibility,
Page 389 U. S. 34
whether of a witness or a confession, are for the jury."
at 378 U. S. 386
n. 13. See also id.
at 378 U. S. 378
n. 8, and cf. id.
at 378 U. S. 404
(separate opinion of BLACK, J.).
Jackson v. Denno
means that the judge and the jury must
each make an independent judgment of voluntariness of an admission,
the judge for purposes of admissibility and the jury for
evidentiary acceptability, credibility, and weight. A telescoped
hearing before judge and jury, in which the judge finds
voluntariness for purposes of admissibility, in reality reduces the
jury function to an echo. Hearing the evidence simultaneously with
the judge, the jury is not apt to approach disagreement with him. I
believe that the procedure here sanctioned, by reducing the
effectiveness of the jury, gravely impairs the constitutional
principle of excluding involuntary confessions which Jackson v.
sought to serve.
The jury is the traditional and preferred arbiter of facts. The
procedure countenanced here, by dicta, sanctions, in effect, a
direction to the jury to accept and give full credence to the
admission -- because the judge, hearing the same testimony, has
ruled that the admission is voluntary.