Respondent, who was convicted of murder in 1956 in a Nebraska
state court, petitioned the federal District Court for a writ of
habeas corpus. That court, relying on state court findings in a
1965 post-conviction proceeding, concluded that respondent's
confessions were voluntary and dismissed the petition. The Court of
Appeals reversed, finding that the trial judge had not found the
confessions voluntary before admitting them into evidence, contrary
to
Jackson v. Denno, 378 U. S. 368;
that this procedural violation had tainted all later findings of
voluntariness; and, after examining the record, that the
confessions were involuntary.
Held: When a federal court finds a
Jackson v.
Denno error in a state proceeding, it must allow the State a
reasonable time to make an error-free determination on the
voluntariness of the confessions.
Certiorari granted; 413 F.2d 459, vacated and remanded.
PER CURIAM.
In 1956, respondent was found guilty in a Nebraska court of
first-degree murder; he was sentenced to life imprisonment. After
exhausting his post-conviction remedies under Nebraska law,
respondent petitioned the United States District Court for the
District of Nebraska for a writ of habeas corpus. After an
evidentiary hearing, the District Court dismissed the petition. One
of the issues presented to the District Court was the voluntariness
of confessions used against respondent at his trial. Relying on the
findings of the state court in a
Page 396 U. S. 483
1965 post-conviction proceeding, the District Court concluded
that the confessions were voluntarily given, and hence admissible.
The Court of Appeals for the Eighth Circuit, without reaching the
other issues before it, reversed on the ground that respondent's
confessions were involuntary. 413 F.2d 459 (1969). The court first
found that the opinion of the Nebraska Supreme Court affirming
respondent's conviction indicated that the trial judge had not
found the confessions voluntary before admitting them into
evidence. The court then found that this violation of the
procedural rule of
Jackson v. Denno, 378 U.
S. 368 (1964), had tainted all subsequent findings of
voluntariness in the Nebraska courts and in the District Court.
Since it seemed "unlikely that either party has any additional
substantial evidence on the voluntariness issue," 413 F.2d at 463,
the Court of Appeals chose to evaluate the confessions itself,
rather than to remand the case to allow the State to make an
untainted determination on the voluntariness question. After
examining the record of the trial and the post-conviction
proceedings, the court held that the confessions could on no view
of the evidence be deemed voluntary. On the basis of this
determination, the court directed that the writ of habeas corpus
should be granted unless within a reasonable time respondent was
given a new trial from which the confessions were excluded.
We agree with the Court of Appeals that the record of
proceedings in the trial court and the opinion of the Nebraska
Supreme Court affirming respondent's conviction do not justify a
conclusion that the trial judge made his own determination of
voluntariness as required by
Jackson v. Denno, supra.
See Sims v. Georgia, 385 U. S. 538
(1967). In addition, we accept the Court of Appeals' determination
that all subsequent findings of voluntariness were made at least in
part in reliance on the first, procedurally defective,
determination of the
Page 396 U. S. 484
admissibility of the confessions.
* However, as
indicated in our opinion in
Jackson v. Denno, supra, at
378 U. S.
391-396, the appropriate remedy when a federal court
finds a
Jackson v. Denno error in a prior state proceeding
is to allow the State a reasonable time to make an error-free
determination on the voluntariness of the confession at issue.
Hence, it was error for the Court of Appeals to pass judgment on
the voluntariness of respondent's confessions without first
permitting a Nebraska court to make such an evaluation uninfluenced
by the apparent finding of voluntariness at the 1956 trial.
The writ of certiorari is granted. The judgment of the Court of
Appeals is vacated, and the case is remanded to that court for
further proceedings consistent with this opinion.
It is so ordered.
* After a hearing in 1965 under the Nebraska Post Conviction
Act, Neb.Rev.Stat. §§ 29-3001 to 29-3004 (Cum.Supp. 1967), the
state trial court found that the record and exhibits indicated that
the confessions were voluntary. The Court of Appeals may have
deemed this conclusion unsatisfactory because the state court's
finding on the voluntariness question was followed immediately by a
reference to the original determination, at trial and on appeal
from the conviction, as to the admissibility of the confessions.
The Court of Appeals' view is supported by the fact that the
Nebraska Supreme Court relied heavily on the apparent finding of
voluntariness at the original trial and on appeal in affirming the
trial court's denial of collateral relief.
State v. Parke,
180 Neb. 707,
144 N.W.2d
525 (1966).
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE joins,
dissenting.
This Court in
Jackson v. Denno, 378 U.
S. 368 (1964), held over my dissent that the question of
the voluntariness of a defendant's alleged confession must be made
by the trial judge in a separate proceeding prior to the submission
of the confession to the jury, and that, insofar
Page 396 U. S. 485
as federal questions concerning coercion under the Fifth
Amendment were involved the decision of the trial judge forecloses
the jury from passing upon the voluntariness question. In my
dissent, I said:
"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."
Id. at
378 U. S. 401.
I adhere to that dissent and hope that, at some future time, this
Court will restore to defendants their right to have the
voluntariness of alleged confessions determined by the jury as the
Sixth Amendment requires.
I would not object if the Court were remanding the case for a
new and complete retrial in which a Nebraska jury of the
defendant's peers could determine after hearing the evidence
whether the alleged confessions had been voluntarily given.
Clearly, when a jury passes upon the truthfulness of a confession,
as it must do when a confession is offered, the jury must also be
allowed to determine whether the confession was caused by police
coercion or whether it was freely given.
Jackson v. Denno
thus took away a defendant's traditional right to have the jury
decide for itself whether a confession was tainted and probably
untrue because it was coerced. The vital importance of this issue
to defendants tried in this country is a sufficient reason for me
to continue my protest against the Court's holding in
Jackson
v. Denno.
MR. JUSTICE DOUGLAS, dissenting.
Respondent was convicted of murder and he was sentenced to life
imprisonment on June 2, 1956, nearly 14 years ago. On appeal, his
conviction was affirmed.
Page 396 U. S. 486
Parker v. State, 164 Neb. 614,
83 N.W.2d
347, and we denied certiorari, 356 U.S. 933.
In 1962 respondent filed a petition for writ of error
coram
nobis in the trial court which was dismissed. The dismissal
was affirmed on appeal.
Parker v. State, 178 Neb. 1,
131 N.W.2d
678.
In 1963 respondent sought post-conviction relief in the Nebraska
court, alleging that the confessions obtained from him and used at
the trial were involuntary and in violation of the Federal
Constitution. The court after an evidentiary hearing denied relief
and the Supreme Court of Nebraska affirmed.
State v.
Parker, 180 Neb. 707,
144 N.W.2d
525.
In 1966, respondent filed the present petition for habeas corpus
in the Federal District Court, again challenging the voluntariness
of the confessions. Again a full evidentiary hearing was held and
the petition was denied. That was on June 27, 1968. On July 18,
1969, the Court of Appeals reversed, 413 F.2d 459, saying:
"The interest of justice would not be served by remanding this
case for a hearing upon the voluntariness of the confession[s] if
the factual background in the present case is such that, in event
the state court again found the confession[s] voluntary, a
determination that such finding was not warranted would be
required. In both the state and federal post conviction hearings,
reliance was placed upon the extensive record made on voluntariness
at the trial, and no additional evidence was introduced. Thus, it
would seem unlikely that either party has any additional
substantial evidence on the voluntariness issue."
Id. at 463.
The issue of voluntariness
vel non of the confessions
is a much-plowed field. If the federal courts were coming to this
question without prior state opportunity to
Page 396 U. S. 487
act, I would agree that the federal courts should not act until
the state tribunal first had the opportunity to try the issue.
Moreover, it would be more appropriate, as MR. JUSTICE BLACK says,
to remand the case so that there might be a new trial before a
jury. But if this issue is to be resolved in a habeas corpus
proceeding, where traditionally a jury does not sit,* then we
should affirm the Court of Appeals. The issue as to the voluntary
character of the confessions has been hotly contested, and the
facts thoroughly exposed in the state proceedings. And the
conclusion by the Court of Appeals that the confessions were not
voluntary is a responsible one. Moreover, the observation of the
Supreme Court of Nebraska that there is no evidence of "a real
miscarriage of justice,"
State v. Parker, 180 Neb. at 714,
144 N.W.2d at 529, though popular in some legal circles, is
irrelevant. For under our presumably civilized constitutional
procedures, a conviction on a coerced confession, even of one whom
we despise, is intolerable.
* The rule that there is no right to jury trial in habeas corpus
cases has been codified in the federal statute, 28 U.S.C. §
2243:
"The court shall summarily hear and determine the facts, and
dispose of the matter as law and justice require."
Section 2243 does not preclude the use of an advisory jury
pursuant to Fed.Rule Civ.Proc. 39(c).
See 5 J. Moore,
Federal Practice 265-269 (1969);
cf. W. Church, A Treatise
on the Writ of Habeas Corpus 256 (2d ed. 1893). Yet the use of an
advisory jury is discretionary only.
See Barry v. White,
62 App.D.C. 69, 70, 64 F.2d 707, 708 (1933).
"[T]he court should not utilize an advisory jury, if to do so
would delay the hearing of the habeas corpus proceeding, and as a
matter of sound practice the advisory jury should be used, if at
all, only in the rare and exceptional case."
Moore,
supra, at 268-269.