Petitioner, after robbing a hotel, fatally wounded a policeman
and himself received two bullet wounds. Questioned shortly after
arrival at a hospital, he admitted the shooting and the robbery.
Some time later, after considerable loss of blood and soon after he
had been given drugs, he was interrogated and admitted firing the
first shot at the policeman. Petitioner was indicted for murder,
and both statements were admitted at the trial, at which
petitioner's testimony differed in some important respects from the
confessions. In accord with New York practice where the
voluntariness of a confession is attacked, the trial court
submitted that issue, with the others, to the jury. The jury was
told to disregard the confession entirely if it was found
involuntary, and to determine the guilt or innocence solely from
other evidence; or, if it found the confession voluntary, it was to
determine its truth or reliability and weigh it accordingly. The
jury found petitioner guilty of first-degree murder, the New York
Court of Appeals affirmed, and this Court denied certiorari.
Petitioner filed a petition for a writ of habeas corpus asserting
that the New York procedure for determining voluntariness of a
confession was unconstitutional and that his confession was
involuntary. The District Court denied the petition and the Court
of Appeals affirmed.
Held:
1. Under the New York procedure, the trial judge must make a
preliminary determination of the voluntariness of a confession and
exclude it if in no circumstances could the confession be deemed
voluntary. If the evidence presents a fair question as to its
voluntariness, as where certain facts bearing on the issue are in
dispute or where reasonable men could differ over the inferences to
be drawn from the undisputed facts, the judge must admit the
confession and leave to the jury, under proper instructions, the
determination of its voluntary character and also of its
truthfulness. This procedure does not provide an adequate and
reliable determination of the voluntariness of the confession, and
does not adequately protect the petitioner's right not to be
convicted through the use of a coerced confession, and is therefore
violative of the Due Process Clause of the Fourteenth Amendment.
Stein v. New York, 346 U. S. 156,
overruled. Pp.
378 U. S.
376-391.
Page 378 U. S. 369
(a) It is a deprivation of due process of law to base a
conviction in whole or in part on a coerced confession, regardless
of its truth, and even though there may be sufficient other
evidence to support the conviction. P.
378 U. S.
376.
(b) A defendant has a constitutional right to a fair hearing and
reliable determination of the voluntariness of a confession, not
influenced by its truth or falsity. Pp.
378 U. S.
376-377.
(c) It is impossible to tell whether the trial jury found the
confession voluntary and relied on it, or involuntary and
supposedly ignored it, but for the Court to accept these
alternatives is to fail to protect the rights of the accused. Pp.
378 U. S.
379-391.
(d) 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. Alternatively there is the danger that a confession
found to be coerced plays some part in the jury's deliberations on
guilt or innocence. Pp.
378 U. S.
386-389.
2. Petitioner is entitled to a state court hearing on the issue
of the voluntariness of the confession by a body other than the one
trying his guilt or innocence, but that does not necessarily
entitle him to a new trial. Pp.
378 U. S.
391-396.
(a) If, at an evidentiary hearing on the coercion issue, it is
determined that the confession was voluntary and admissible in
evidence, a new trial is unnecessary. P.
378 U. S.
394.
(b) If it is determined at the hearing that the confession was
involuntary, a new trial, at which the confession is excluded, is
required. P.
378 U. S.
394.
309 F.2d 573, reversed and remanded.
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
Page 378 U. S. 370
determined to be voluntary. The writ was denied, 206 F. Supp.
759 (D.C.S.D.N.Y.), the Court of Appeals affirmed, 309 F.2d 573
(C.A.2d Cir.), and we granted certiorari to consider fundamental
questions about the constitutionality of the New York procedure
governing the admissibility of a confession alleged to be
involuntary. [
Footnote 1] 371
U.S. 967.
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
Page 378 U. S. 371
policeman was fatally wounded, and petitioner was shot twice in
the body. He managed to hail a cab, however, which took him to the
hospital.
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 had 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. [
Footnote 2] The interview was completed at 4 a.m.
An
Page 378 U. S. 372
operation upon petitioner was begun at 5 a.m. and completed at 8
a.m.
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
Page 378 U. S. 373
records, elicited the fact that demerol and scopolamine were
administered to Jackson immediately before his interrogation. But
any effect of these drugs on Jackson during the interrogation was
denied. [
Footnote 3]
Page 378 U. S. 374
Although Jackson's counsel did not specifically object to the
admission of the confession initially, the trial court indicated
its awareness that Jackson's counsel was questioning the
circumstances under which Jackson was interrogated. [
Footnote 4]
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
Page 378 U. S. 375
solely from the other evidence in the case; alternatively, if it
found the confession voluntary, it was to determine its truth or
reliability and afford it weight accordingly. [
Footnote 5]
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
Page 378 U. S. 376
term. Jackson's conviction was affirmed by the New York Court of
Appeals,
People v. Jackson, 10 N.Y.2d 780, 219 N.Y.S.2d
621, 177 N.E.2d 59, its remittitur being amended to show that it
had necessarily passed upon the voluntariness of the confession and
had found that Jackson's constitutional rights had not been
violated. 10 N.Y.2d 816, 221 N.Y.S.2d 521, 178 N.E.2d 234.
Certiorari was denied here. 368 U.S. 949. Jackson then filed a
petition for habeas corpus claiming that the New York procedure for
determining the voluntariness of a confession was unconstitutional
and that in any event his confession was involuntary. After hearing
argument and examining the state court record, the District Court
denied the petition without holding an evidentiary hearing.
Indicating that it is the trier of fact who must determine the
truth of the testimony of prisoner and official alike and resolve
conflicts in the testimony, the court found "no clear and
conclusive proof that these statements were extorted from him, or
that they were given involuntarily." Nor was any constitutional
infirmity found in the New York procedure. 206 F. Supp. 759
(D.C.S.D.N.Y.). The Court of Appeals, after noting the conflicting
testimony concerning the coercion issue and apparently accepting
the State's version of the facts, affirmed the conviction. 309 F.2d
573 (C.A.2d Cir.).
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
Page 378 U. S. 377
to object to the use of the confession 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. In our view, the
New York procedure employed in this case did not afford a reliable
determination of the voluntariness of the confession offered in
evidence at the trial, did not adequately protect Jackson's right
to be free of a conviction based upon a coerced confession, and
therefore cannot withstand constitutional attack under the Due
Process Clause of the Fourteenth Amendment. We therefore reverse
the judgment below denying the writ of habeas corpus.
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. [
Footnote 6] But if
the evidence presents a fair question as to its voluntariness, as
where certain facts bearing on the issue are in dispute or where
reasonable men could differ over the inferences to be drawn from
undisputed facts, the judge
"must receive the confession and leave to the jury, under proper
instructions, the ultimate determination of its voluntary character
and also its truthfulness. [
Footnote 7]"
Stein v. New York, 346 U. S. 156,
346 U. S. 172.
If an issue of coercion is presented, the judge may not resolve
conflicting evidence or arrive at his independent appraisal of the
voluntariness
Page 378 U. S. 378
of the confession, one way or the other. These matters he must
leave to the jury.
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, [
Footnote 8] under which the jury passes on voluntariness
only after the judge has fully and independently resolved the issue
against the accused, [
Footnote
9] the judge's conclusions
Page 378 U. S. 379
are clearly evident from the record, since he either admits the
confession into evidence if it is voluntary or rejects it if
involuntary. Moreover, his findings upon disputed issues of fact
are expressly stated, or may be ascertainable from the record. In
contrast, the New York jury returns only a general verdict upon the
ultimate question of guilt or innocence. It is impossible to
discover whether the jury found the confession voluntary and relied
upon it, or involuntary and supposedly ignored it. Nor is there any
indication of how the jury resolved disputes in the evidence
concerning the critical facts underlying the coercion issue.
Indeed, there is nothing
Page 378 U. S. 380
to show that these matters were resolved at all, one way or the
other.
These uncertainties inherent in the New York procedure were
aptly described by the Court in
Stein v. New York,
346 U. S. 156,
346 U. S.
177-178:
"Petitioners suffer a disadvantage inseparable from the issues
they raise in that this procedure does not produce any definite,
open and separate decision of the confession issue. Being cloaked
by the general verdict, petitioners do not know what result they
really are attacking here. . . ."
"This method of trying the coercion issue to a jury is not
informative as to its disposition. Sometimes the record permits a
guess or inference, but where other evidence of guilt is strong, a
reviewing court cannot learn whether the final result was to
receive or to reject the confessions as evidence of guilt. Perhaps
a more serious, practical cause of dissatisfaction is the absence
of any assurance that the confessions did not serve as makeweights
in a compromise verdict, some jurors accepting the confessions to
overcome lingering doubt of guilt, others rejecting them but
finding their doubts satisfied by other evidence, and yet others or
perhaps all never reaching a separate and definite conclusion as to
the confessions, but returning an unanalytical and impressionistic
verdict based on all they had heard."
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
Page 378 U. S. 381
no constitutional deprivation to the defendant. The Court
proceeded to this conclusion on the basis of alternative
assumptions regarding the manner in which the jury might have
resolved the coercion issue. Either the jury determined the
disputed issues of fact against the accused, found the confession
voluntary and therefore properly relied upon it; or it found the
contested facts in favor of the accused and deemed the confession
involuntary, in which event it disregarded the confession in
accordance with its instructions and adjudicated guilt based solely
on the other evidence. On either assumption, the Court found no
error in the judgment of the state court.
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.
Page 378 U. S. 382
In those cases where, without the confession, the evidence is
insufficient, the defendant should not be convicted if the jury
believes the confession but finds it to be involuntary. The jury,
however, may find it difficult to understand the policy forbidding
reliance upon a coerced, but true, confession, a policy which has
divided this Court in the past,
see Stein v. New York,
supra, and an issue which may be reargued in the jury room.
That a trustworthy confession must also be voluntary if it is to be
used at all generates natural and potent pressure to find it
voluntary. Otherwise, the guilty defendant goes free. Objective
consideration of the conflicting evidence concerning the
circumstances of the confession becomes difficult, and the implicit
findings become suspect. [
Footnote 10]
Page 378 U. S. 383
The danger that matters pertaining to the defendant's guilt will
infect the jury's findings of fact bearing upon voluntariness, as
well as its conclusion upon that issue itself, is sufficiently
serious to preclude their unqualified acceptance upon review in
this Court, regardless of whether there is or is not sufficient
other evidence to sustain a finding of guilt. In Jackson's case, he
confessed to having fired the first shot, a matter very relevant to
the charge of first degree murder. The jury also heard the evidence
of eyewitnesses to the shooting. Jackson's testimony going to his
physical and mental condition when he confessed and to the events
which took place at that time, bearing upon the issue of
voluntariness, was disputed by the prosecution. The obvious and
serious danger is that the jury disregarded or disbelieved
Jackson's testimony pertaining to the confession because it
believed he had done precisely what he was charged with doing.
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
Page 378 U. S. 384
the determination of the coercion issue. [
Footnote 11] This approach in
Stein
drew a sharp dissent from Mr. Justice Frankfurter, who admonished
that considerations of truth or falsity of the admissions are to be
put aside in determining the question of coercion:
"This issue must be decided without regard to the confirmation
of details in the confession by reliable other evidence. The
determination must not be influenced by an irrelevant feeling of
certitude that the accused is guilty of the crime to which he
confessed."
346 U.S. at
346 U. S.
200.
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,
322 U. S. 597;
Gallegos v. Nebraska, 342 U. S. 55,
342 U. S. 63,
and was unequivocally put to rest in
Rogers v. Richmond,
supra, where it was held that the reliability of a confession
has
Page 378 U. S. 385
nothing to do with its voluntariness -- proof that a defendant
committed the act with which he is charged and to which he has
confessed is not to be considered when deciding whether a
defendant's will has been overborne. Reflecting his dissent in
Stein, Mr. Justice Frankfurter wrote for a unanimous Court
on this issue in
Rogers, supra:
"[T]he weight attributed to the impermissible consideration of
truth and falsity . . . entering into the Connecticut trial court's
deliberations concerning the admissibility of the confessions may
well have distorted, by putting in improper perspective, even its
findings of historical fact. Any consideration of this
'reliability' element was constitutionally precluded precisely
because the force which it carried with the trial judge cannot be
known."
365 U.S. at
365 U. S. 545.
[
Footnote 12]
It is now inescapably clear that the Fourteenth Amendment
forbids the use of involuntary confessions not only
Page 378 U. S. 386
because of the probable unreliability of confessions that are
obtained in a manner deemed coercive, but also because of the
"strongly felt attitude of our society that important human
values are sacrificed where an agency of the government, in the
course of securing a conviction, wrings a confession out of an
accused against his will,"
Blackburn v. Alabama, 361 U. S. 199,
361 U. S.
206-207, and because of
"the deep-rooted feeling that the police must obey the law while
enforcing the law; that, in the end, life and liberty can be as
much endangered from illegal methods used to convict those thought
to be criminals as from the actual criminals themselves."
Spano v. New York, 360 U. S. 315,
360 U. S.
320-321. Because it did not recognize this "complex of
values,"
Blackburn, supra, underlying the exclusion of
involuntary confessions,
Stein also ignored the pitfalls
in giving decisive weight to the jury's assumed determination of
the facts surrounding the disputed confession.
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.
[
Footnote 13] As a
consequence, it cannot be
Page 378 U. S. 387
assumed, as the
Stein Court assumed, that the jury
reliably found the facts against the accused. [
Footnote 14] This unsound assumption undermines
Stein's authority as a precedent and its view on the
constitutionality of the New York procedure. The admixture of
reliability and voluntariness in the considerations of the jury
would itself entitle a defendant to further proceedings in any case
in which the essential facts are disputed, for we cannot determine
how the jury resolved these issues, and will not assume that they
were reliably and properly resolved against the accused. And it is
only a reliable determination on the voluntariness issue which
satisfies the constitutional rights of the defendant and which
would permit the jury to consider the confession in adjudicating
guilt or innocence.
Page 378 U. S. 388
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? [
Footnote
15]
Page 378 U. S. 389
It is difficult, if not impossible, to prove that a confession
which a jury has found to be involuntary has nevertheless
influenced the verdict or that its finding of voluntariness, if
this is the course it took, was affected by the other evidence
showing the confession was true. But the New York procedure poses
substantial threats to a defendant's constitutional rights to have
an involuntary confession entirely disregarded and to have the
coercion issue fairly and reliably determined. These hazards we
cannot ignore. [
Footnote
16]
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.
"[T]his 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 the thumbscrew can be matched, given the proper
subject, by more sophisticated
Page 378 U. S. 390
modes of 'persuasion.'"
Blackburn v. Alabama, 361 U. S. 199,
361 U. S. 206.
[
Footnote 17] 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. [
Footnote
18] Where pure
Page 378 U. S. 391
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 substitute for a full and reliable
determination of the voluntariness issue in the trial court, and
the trial court's determination,
pro tanto, takes on an
increasing finality. The procedures used in the trial court to
arrive at its conclusions on the coercion issue progressively take
on added significance as the actual measure of the protection
afforded a defendant under the Due Process Clause of the Fourteenth
Amendment against the use of involuntary confessions. These
procedures must, therefore, be fully adequate to insure a reliable
and clear-cut determination of the voluntariness of the confession,
including the resolution of disputed facts upon which the
voluntariness issue may depend. [
Footnote 19] In our view, the New York procedure falls
short of satisfying these constitutional requirements.
Stein v.
New York is overruled.
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
Page 378 U. S. 392
as in strong condition despite his wounds. According to Jackson,
the police told him he could have no water and would not be left
alone until he gave the answers the authorities desired. These
verbal threats were denied by the State. Whereas Jackson claimed
his will was affected by the drugs administered to him, the State's
evidence was that the drugs neither had nor could have had any
effect upon him at all. Whether Jackson is entitled to relief
depends upon how these facts are resolved, for, if the State is to
be believed, we cannot say that Jackson's confession was
involuntary, whereas, if Jackson's version of the facts is
accepted, the confession was involuntary and inadmissible.
[
Footnote 20]
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.
Page 378 U. S. 393
However, we think that the further proceedings to which Jackson
is entitled should occur initially in the state courts, rather than
in the federal habeas corpus court. Jackson's trial did not comport
with constitutional standards, and he is entitled to a
determination of the voluntariness of his confession in the state
courts in accordance with valid state procedures; the State is also
entitled to make this determination before this Court considers the
case on direct review or a petition for habeas corpus is filed in a
Federal District Court. This was the disposition in
Rogers v.
Richmond, supra, where, in a case coming to this Court from a
denial of a habeas corpus, the Court ascertained a trial error of
constitutional dimension: [
Footnote 21]
"A state defendant should have the opportunity to have all
issues which may be determinative of his guilt tried by a state
judge or a state jury under appropriate state procedures which
conform to the requirements of the Fourteenth Amendment. . . .
[T]he State, too, has a weighty interest in having valid federal
constitutional criteria applied in the administration of its
criminal law by its own courts and juries. To require a federal
judge exercising habeas corpus jurisdiction to attempt to combine
within himself the proper functions of judge and jury in a state
trial -- to ask him to approximate the sympathies of the
defendant's peers or to make the rulings which the state trial
judge might make . . . -- is potentially to prejudice state
defendants claiming federal rights and to preempt functions that
belong to state machinery in the administration of state criminal
law."
365 U.S. at
365 U. S.
547-548.
It is New York, therefore, not the federal habeas corpus court,
which should first provide Jackson with that which
Page 378 U. S. 394
he has not yet had and to which he is constitutionally entitled
-- an adequate evidentiary hearing productive of reliable results
concerning the voluntariness of his confession. It does not follow,
however, that Jackson is automatically entitled to a complete new
trial including a retrial of the issue of guilt or innocence.
Jackson's position before the District Court, and here, is that the
issue of his confession should not have been decided by the
convicting jury, but should have been determined in a proceeding
separate and apart from the body trying guilt or innocence. So far,
we agree, and hold that he is now entitled to such a hearing in the
state court. But if, at the conclusion of such an evidentiary
hearing in the state court on the coercion issue, it is determined
that Jackson's confession was voluntarily given, admissible in
evidence, and properly to be considered by the jury, we see no
constitutional necessity at that point for proceeding with a new
trial, for Jackson has already been tried by a jury with the
confession placed before it and has been found guilty. True, the
jury in the first trial was permitted to deal with the issue of
voluntariness, and we do not know whether the conviction rested
upon the confession; but if it did, there is no constitutional
prejudice to Jackson from the New York procedure if the confession
is now properly found to be voluntary, and therefore admissible. If
the jury relied upon it, it was entitled to do so. Of course, if
the state court, at an evidentiary hearing, redetermines the facts
and decides that Jackson's confession was involuntary, there must
be a new trial on guilt or innocence without the confession's being
admitted in evidence. [
Footnote
22]
Page 378 U. S. 395
Obviously, the State is free to give Jackson a new trial if it
so chooses, but for us to impose this requirement before the
outcome of the new hearing on voluntariness is known would not
comport with the interests of sound judicial administration and the
proper relationship between federal and state courts. We cannot
assume that New York will not now afford Jackson a hearing that is
consistent with the requirements of due process. Indeed, New York
thought it was affording Jackson such a hearing, and not without
support in the decisions of this Court, [
Footnote 23] when it submitted the issue of
voluntariness to the same jury that adjudicated guilt. It is both
practical and desirable that, in cases to be tried hereafter, a
proper determination of voluntariness be made prior to the
admission of the confession to the jury which is adjudicating guilt
or innocence. But as to Jackson, who has already been convicted and
now seeks collateral relief, we cannot say that the Constitution
requires a new trial if, in a soundly conducted collateral
proceeding, the confession which was admitted at the trial is
fairly determined
Page 378 U. S. 396
to be voluntary. Accordingly, the judgment denying petitioner's
writ of habeas corpus is reversed, and the case is remanded to the
District Court to allow the State a reasonable time to afford
Jackson a hearing or a new trial, failing which Jackson is entitled
to his release.
Reversed and remanded.
|
378
U.S. 368app|
APPENDIX A
ARIZONA:
State v. Preis, 89 Ariz. 336,
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,
Page 378 U. S. 397
169 P. 295 (judge must determine if freely and voluntarily made
before admission.)
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
Page 378 U. S. 398
the defendant's testimony as to voluntariness, he may leave the
issue to the jury; preliminary hearing in presence of jury is
discretionary).
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
Page 378 U. S. 399
other or, if very doubtful, leave it to the jury).
State v.
Nicholas, 62 S.D. 511, 253 N.W. 737 (procedure is
discretionary with the trial judge, but the more frequent practice
is for the trial judge to decide the question of voluntariness).
State v. Montgomery, 26 S.D. 539, 128 N.W. 718 (question
of voluntariness may be submitted to the jury where the evidence is
conflicting).
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 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.),
Page 378 U. S. 400
cert. denied, 350 U.S. 828;
United States v.
Leviton, 193 F.2d 848 (C.A.2d Cir.); or where the trial judge
finds the confession to be voluntary,
United States v.
Anthony, 145 F.
Supp. 323 (D.C.M.D.Pa.).
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. 318 U.S.
350;
McBryde v. United States, 7 F.2d 466.
Page 378 U. S. 401
[
Footnote 1]
There is no claim in this Court that the constitutionality of
the New York procedural rule governing admission of confessions is
not properly before us. Although it appears that this issue was not
seasonably tendered to the New York courts, exhaustion requirements
were satisfied and the Federal District Court ruled on the merits
of the issue, as our decision last Term in
Fay v. Noia,
372 U. S. 391,
clearly requires:
"[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
372 U. S.
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 bypassing 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,
372 U. S. 439.
See also Johnson v. Zerbst, 304 U.
S. 458.
[
Footnote 2]
The confession reads in pertinent part as follows:
"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."
[
Footnote 3]
The properties of these medications were described in this
way:
"
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."
[
Footnote 4]
"The Court: Judge Healy raised the point in cross-examination
that sedation of a kind was administered to the patient."
"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."
[
Footnote 5]
"If you determine that it was a confession, the statement
offered here, and if you determine that Jackson made it, and if you
determine that it is true; if you determine that it is accurate,
before you may use it, the law still says you must find that it is
voluntary, and the prosecution has the burden of proving that it
was a voluntary confession. The defendant merely comes forward with
the suggestion that it was involuntary, but the burden is upon the
prosecution to show that it was voluntary."
"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.
[
Footnote 6]
See People v. Weiner, 248 N.Y. 118, 161 N.E. 441;
People v. Leyra, 302 N.Y. 353, 98 N.E.2d 553.
[
Footnote 7]
People v. Doran, 246 N.Y. 409, 416-417, 159 N.E. 379,
381-382;
People v. Leyra, supra. , Under the New York rule
the judge is not required to exclude the jury while he hears
evidence as to voluntariness and perhaps is not allowed to do so.
People v. Brasch, 193 N.Y. 46, 85 N.E. 809;
People v.
Randazzio, 194 N.Y. 147, 87 N.E. 112.
[
Footnote 8]
We raise no question here concerning the Massachusetts
procedure. In jurisdictions following this rule, the judge hears
the confession evidence, himself resolves evidentiary conflicts,
and gives his own answer to the coercion issue, rejecting
confessions he deems involuntary and admitting only those he
believes voluntary. It is only the latter confessions that are
heard by the jury, which may then, under this procedure, disagree
with the judge, find the confession involuntary, and ignore it.
Given the integrity of the preliminary proceedings before the
judge, the Massachusetts procedure does not, in our opinion, pose
hazards to the rights of a defendant. While no more will be known
about the views of the jury than under the New York rule, the jury
does not hear all confessions where there is a fair question of
voluntariness, but only those which a judge actually and
independently determines to be voluntary, based upon all of the
evidence. The judge's consideration of voluntariness is carried out
separate and aside from issues of the reliability of the confession
and the guilt or innocence of the accused and without regard to the
fact the issue may again be raised before the jury if decided
against the defendant. The record will show the judge's conclusions
in this regard and his findings upon the underlying facts may be
express or ascertainable from the record.
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.
[
Footnote 9]
Not all the States and federal judicial circuits can be neatly
classified in accordance with the above three procedures. In many
cases, it is difficult to ascertain from published appellate court
opinions whether the New York or Massachusetts procedure, or some
variant of either, is being followed. Some jurisdictions apparently
leave the matter entirely to the discretion of the trial court;
others state the rule differently on different occasions; and still
others deal with voluntariness in terms of trustworthiness, which
is said to be a matter for the jury, an approach which, in the
light of this Court's recent decision in
Rogers v.
Richmond, 365 U. S. 534, may
make these cases of doubtful authority.
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 A.L.R. 568;
85 A.L.R. 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
378
U.S. 368app|>Appendix.
[
Footnote 10]
"It may be urged that the commitment of our system to jury trial
presupposes the acceptance of the assumptions that the jury follows
its instructions, that it will make a separate determination of the
voluntariness issue, and that it will disregard what it is supposed
to disregard. But that commitment generally presupposes that the
judge will apply the exclusionary rules before permitting evidence
to be submitted to the jury."
Meltzer, Involuntary Confessions: The Allocation of
Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 327
(1954).
See also 9 Wigmore, Evidence (3d ed. 1940), §
2550.
"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.
[
Footnote 11]
"[R]eliance on a coerced confession vitiates a conviction
because such a confession combines the persuasiveness of apparent
conclusiveness with what judicial experience shows to be illusory
and deceptive evidence. A beaten confession is a false foundation
for any conviction, while evidence obtained by illegal search and
seizure, wiretapping, or larceny may be and often is of the utmost
verity. Such police lawlessness therefore may not void state
convictions while forced confessions will do so."
346 U.S. at
346 U. S. 192.
The Court further noted in
Stein that the detailed
confessions were "corroborated throughout by other evidence," 346
U.S. at
346 U. S. 168,
and felt it necessary to recount the context in which the
confessions were obtained only from "a summary of the whole
testimony," 346 U.S. at
346 U. S. 162.
The premise that the veracity of the confession is highly pertinent
to its voluntariness can also be gleaned from other statements in
the opinion. In response to an objection that the New York
procedure deterred testimony from a defendant on the facts
surrounding the obtaining of the confession, the Court stated:
"If in open court, free from violence or threat of it,
defendants had been obliged to admit incriminating facts, it might
bear on the credibility of their claim that the same facts were
admitted to the police only in response to beating."
Id. at
346 U. S.
175.
[
Footnote 12]
Rogers dealt with the situation where the state trial
judge and the State Supreme Court applied a legal standard of
voluntariness which incorporated reliability of the confession as a
relevant determinant of voluntariness, whereas there is no issue
here that the jury was explicitly instructed to consider
reliability in deciding whether Jackson's confession was
admissible, although it should be noted that the jury was not
clearly told not to consider this element. The jury is indeed told
to, and necessarily does, consider this element in determining the
weight to be given the confession. The issues of probativeness and
voluntariness are discrete, and have different policy
underpinnings, but are often confused.
See note 13 infra. Regardless of
explicit instructions, however, we think the likelihood that these
forbidden considerations enter the jury's deliberations too great
for us to ignore. Under the New York procedure, the jury is not
asked to resolve the issue of voluntariness until after the State
has carried its burden of proof on the issue of a defendant's
guilt, and thus not until after matters pertaining to the
defendant's guilt, including matters corroborative of the
confession itself, are fully explored at trial.
See
Morgan,
note 10
supra.
[
Footnote 13]
The question of the credibility of a confession, as
distinguished from its admissibility, is submitted to the jury in
jurisdictions following the orthodox Massachusetts or New York
procedure. Since the evidence surrounding the making of a
confession bears on its credibility, such evidence is presented to
the jury under the orthodox rule not on the issue of voluntariness
or competency of the confession, but on the issue of its weight.
Just as questions of admissibility of evidence are traditionally
for the court, questions of credibility, whether of a witness or a
confession, are for the jury. This is so because trial courts do
not direct a verdict against the defendant on issues involving
credibility. Nothing in this opinion, of course, touches upon these
ordinary rules of evidence relating to impeachment.
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).
[
Footnote 14]
Another assumption of
Stein -- that a criminal
conviction can stand despite the introduction of a coerced
confession if there is sufficient other evidence to sustain a
finding of guilt and if the confession is only tentatively
submitted to the jury -- an assumption also related to the view
that the use of involuntary confessions is constitutionally
proscribed solely because of their illusory trustworthiness, has
also been rejected in the decisions of this Court. It is now clear
that reversal follows if the confession admitted in evidence is
found to be involuntary in this Court regardless of the possibility
that the jury correctly followed instructions and determined the
confession, to be involuntary.
Haynes v. Washington,
373 U. S. 503;
Spano v. New York, 360 U. S. 315;
Payne v. Arkansas, 356 U. S. 560;
Leyra v. Denno, 347 U. S. 556.
[
Footnote 15]
See Rideau v. Louisiana, 373 U.
S. 723,
373 U. S.
727:
"But we do not hesitate to hold, without pausing to examine a
particularized transcript of the
voir dire examination of
the members of the jury, that due process of law in this case
required a trial before a jury drawn from a community of people who
had not seen and heard Rideau's televised 'interview.'"
See also Delli Paoli v. United States, 352 U.
S. 232,
352 U. S.
248:
"The Government should not have the windfall of having the jury
be influenced be evidence against a defendant which, as a matter of
law, they should not consider but which they cannot put out of
their minds."
(Dissenting opinion of Mr. Justice Frankfurter relating to use
of a confession of a codefendant under limiting instructions.)
Krulewitch v. United States, 336 U.
S. 440,
336 U. S.
453:
"The naive assumption that prejudicial effects can be overcome
by instructions to the jury,
cf. Blumenthal v. United
States, 332 U. S. 539,
332 U. S.
559, all practicing lawyers know to be unmitigated
fiction.
See Skidmore v. Baltimore & Ohio R. Co., 167
F.2d 54."
(Concurring opinion of Mr. Justice Jackson relating to limiting
instructions concerning use of declarations of co-conspirators.)
Shepard v. United States, 290 U. S.
96,
290 U. S. 104;
United States v. Leviton, 193 F.2d 848, 865 (C.A.2d Cir.),
certiorari denied, 343 U. S. 946;
Morgan, Functions of Judge and Jury in the Determination of
Preliminary Questions of Fact, 43 Harv.L.Rev. 165, 168-169 (1929);
Meltzer, Involuntary Confessions: The Allocation of Responsibility
Between Judge and Jury, 21 U.Chi.L.Rev. 317, 326 (1954).
[
Footnote 16]
Further obstacles to a reliable and fair determination of
voluntariness under the New York procedure result from the ordinary
rules relating to cross-examination and impeachment. Although not
the case here, an accused may well be deterred from testifying on
the voluntariness issue when the jury is present because of his
vulnerability to impeachment by proof of prior convictions and
broad cross-examination, both of whose prejudicial effects are
familiar. The fear of such impeachment and extensive
cross-examination in the presence of the jury that is to pass on
guilt or innocence as well as voluntariness may induce a defendant
to remain silent, although he is perhaps the only source of
testimony on the facts underlying the claim of coercion. Where this
occurs, the determination of voluntariness is made upon less than
all of the relevant evidence.
Cf. United States v.
Carignan, 342 U. S. 36.
[
Footnote 17]
Also see Gallegos v. Colorado, 370 U. S.
49;
Culombe v. Connecticut, 367 U.
S. 568;
Spano v. New York, 360 U.
S. 315;
Fikes v. Alabama, 352 U.
S. 191;
Watts v. Indiana, 338 U. S.
49;
Turner v. Pennsylvania, 338 U. S.
62;
Harris v. South Carolina, 338 U. S.
68.
[
Footnote 18]
In
Wilson v. United States, 162 U.
S. 613, an early confession case in this Court, where
the trial judge first ruled on the voluntariness of the confession
before submitting the issue to the jury, the procedure governing
admissibility in the federal courts was stated as follows:
"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, 5 N.E. 494."
Id. at
162 U. S.
624.
The Court held in
United States v. Carignan,
342 U. S. 36,
342 U. S. 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,
348 U. S. 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."
[
Footnote 19]
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.
[
Footnote 20]
We reject Jackson's alternative claim that even the undisputed
evidence in this record shows his confession to have been
involuntary. If the State's version of the facts is accepted, we
have only Jackson's ready and coherent responses to brief
questioning by the police unaffected by drugs or threats or
coercive behavior on the part of the police; and his apparently
strong condition at the time despite his two bullet wounds.
[
Footnote 21]
Compare Townsend v. Sain, 372 U.
S. 293,
with Rogers v. Richmond, 365 U.
S. 534.
[
Footnote 22]
In
Rogers v. Richmond, supra, the Court, upon finding
that the state trial judge applied a wholly erroneous standard of
voluntariness, ordered a new trial. But the alternative disposition
urged and rejected in that case was an evidentiary hearing in the
Federal District Court. It does not appear that the Court
considered the possibility of a more limited initial hearing in the
state court with a new trial dependent upon the outcome of the
hearing.
[
Footnote 23]
Except for
Stein v. New York, supra, the procedure
invalidated herein was not questioned in confession cases decided
by this Court. In
Spano v. New York, 360 U.
S. 315, the Court read
Stein as holding
that,
"when a confession is not found by this Court to be involuntary,
this Court will not reverse on the ground that the jury might have
found it involuntary and might have relied on it."
Also see Thomas v. Arizona, 356 U.
S. 390;
Lyons v. Oklahoma, 322 U.
S. 596;
Wilson v. United States, 162 U.
S. 613.
But cf. United States v. Carignan,
342 U. S. 36,
342 U. S.
38:
"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,
162 U. S. 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. JUSTICE BLACK, with whom MR. JUSTICE CLARK joins as to Part
I of this opinion, dissenting in part and concurring in part.
I
In
Stein v. New York, 346 U. S. 156,
346 U. S.
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, [
Footnote 2/1] to have the question of voluntariness of a
confession submitted to a jury until the trial judge has first
canvassed the matter completely and made a final decision that the
confession
Page 378 U. S. 402
is voluntary. New York does not do this, although, as pointed
out in
Stein, supra, 346 U.S. at
346 U. S. 174,
the trial judge does have much power to consider this question both
before and after a jury's final verdict is entered. [
Footnote 2/2] If a rule like that which the
Court now holds to be constitutionally required would in actual
practice reduce the number of confessions submitted to juries, this
would obviously be an advantage for a defendant whose alleged
confession was for this reason excluded. Even assuming this Court's
power to fashion this rule, I am still unable to conclude that this
possible advantage to some defendants is reason enough to create a
new constitutional rule striking down the New York trial by jury
practice.
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 factfinding by human
factfinders -- 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 factfinders (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
Page 378 U. S. 403
Court does refer to commentators who have made the suggestion.
[
Footnote 2/3] None of these
commentators appears to have gathered factual data to support his
thesis, nor does it appear that their arguments are at all rooted
in the actual trial of criminal cases. Theoretical contemplation is
a highly valuable means of moving toward improved techniques in
many fields, but it cannot wholly displace the knowledge that comes
from the hard facts of everyday experience. With this in mind, it
is not amiss to recall that the New York method of submitting the
question of voluntariness to the jury without first having a
definitive ruling by the judge not only has more than a century of
history behind it, but appears from the cases to be the procedure
used in 15 States, the District of Columbia, and Puerto Rico, has
been approved by this Court as a federal practice,
see Smith v.
United States, 348 U. S. 147,
348 U. S.
150-151;
compare Wilson v. United States,
162 U. S. 613,
162 U. S. 624,
and has been approved in six of the 11 United States Court of
Appeals Circuits. [
Footnote 2/4]
Fourteen other States appear to require full-scale determinations
as to voluntariness both by the trial court and the jury. [
Footnote 2/5] Another 20 States require the
trial judge first to decide the question of voluntariness for
purposes of "admissibility," but have him then submit that question
for the jury to consider in determining "credibility" or "weight."
[
Footnote 2/6] Yet no matter what
label a particular State gives its rule and no matter what the
purpose for which the rule says the jury may consider the
confession's voluntariness, it is clear that all the States, in the
end, do let the jury pass on
Page 378 U. S. 404
the question of voluntariness for itself, whether in deciding
"admissibility" or "credibility."
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 U. S. 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." [
Footnote
2/7]
Another disadvantage to the defendant under the Court's new rule
is the failure to say anything about the
Page 378 U. S. 405
burden of proving voluntariness. The New York rule does now and
apparently always has put on the State the burden of convincing the
jury beyond a reasonable doubt that a confession is voluntary.
See Stein v. New York, supra, 346 U.S. at
346 U. S. 173
and n. 17;
People v. Valletutti, 297 N.Y. 226, 229, 78
N.E.2d 485, 486. The Court has not said that its new constitutional
rule, which requires the judge to decide voluntariness, also
imposes on the State the burden of proving this fact beyond a
reasonable doubt. Does the Court's new rule allow the judge to
decide voluntariness merely on a preponderance of the evidence? If
so, this is a distinct disadvantage to the defendant. In fashioning
its new constitutional rule, the Court should not leave this
important question in doubt.
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. [
Footnote 2/8] The reasons given by the Court for this
downgrading of trial by jury appear to me to challenge the
soundness of the Founders' great faith in jury trials. Implicit in
these constitutional requirements of jury trial is a belief that
juries can be trusted to decide factual issues. Stating the obvious
fact that "it is only a
reliable determination on the
voluntariness issue which satisfies the constitutional rights of
the defendant . . . ,"
ante, p.
378 U. S. 387
(emphasis supplied), the Court concludes, however, that a jury's
finding on this question is tainted by inherent unreliability. In
making this judgment about the unreliability of juries, the Court,
I believe, overlooks the fact that the Constitution itself long ago
made the decision that juries
are to be trusted.
Page 378 U. S. 406
Today's holding means that hundreds of prisoners in the State of
New York have been convicted after the kind of trial which the
Court now says is unconstitutional. The same can fairly be said
about state prisoners convicted in at least 14 other States listed
in
378
U.S. 368appaii|>Appendix A-II to this opinion and federal
prisoners convicted in 6 federal judicial circuits listed in
378
U.S. 368appbii|>Appendix B-II. Certainly if having the
voluntariness of their confessions passed on only by a jury is a
violation of the Fourteenth Amendment, as the Court says it is,
then not only Jackson, but all other state and federal prisoners
already convicted under this procedure, are, under our holding in
Fay v. Noia, 372 U. S. 391,
entitled to release unless the States and Federal Government are
still willing and able to prosecute and convict them.
Cf.
Doughty v. Maxwell, 376 U. S. 202;
Pickelsimer v. Wainwright, 375 U. S.
2. The disruptive effect which today's decision will
have on the administration of criminal justice throughout the
country will undoubtedly be great. Before today's holding is even a
day old, the Court has relied on it to vacate convictions in 11
cases from Arizona, Pennsylvania, Texas, New York, and the District
of Columbia. [
Footnote 2/9]
Nevertheless, if I thought that submitting the issue of
voluntariness to the jury really denied the kind of trial commanded
by the Constitution, I would not hesitate to reverse on that
ground, even if it meant overturning convictions in all the States,
instead of in just about one-third of them. But, for the reasons
already stated, it is
Page 378 U. S. 407
impossible for me to believe that permitting the jury alone to
pass on factual issues of voluntariness violates the United States
Constitution, which attempts in two different places to guarantee
trial by jury. My wide difference with the Court is in its apparent
holding that it has constitutional power to change state trial
procedures because of its belief that they are not fair. There is
no constitutional provision which gives this Court any such
lawmaking power. I assume, although the Court's opinion is not
clear on this point, that the basis for its holding is the "due
process of law" clause of the Fourteenth Amendment. The Court
appears to follow a judicial philosophy which has relied on that
clause to strike down laws and procedures in many fields because of
a judicial belief that they are "unfair," are contrary to "the
concept of ordered liberty," "shock the conscience," or come within
various other vague but appealing catch phrases.
See, e.g.
Betts v. Brady, 316 U. S. 455;
Rochin v. California, 342 U. S. 165;
Palko v. Connecticut, 302 U. S. 319;
see also cases collected in
Adamson v.
California, 332 U. S. 46,
332 U. S. 83, n.
12 (dissenting opinion). I have repeatedly objected to the use of
the Due Process Clause to give judges such a wide and unbounded
power, whether in cases involving criminal procedure,
see,
e.g., Betts v. Brady, supra, 316 U.S. at
316 U. S. 474
(dissenting opinion);
cf. Gideon v. Wainwright,
372 U. S. 335, or
economic legislation,
see Ferguson v. Skrupa, 372 U.
S. 726. I believe that "due process of law" as it
applies to trials means, as this Court held in
Chambers v.
Florida, 309 U. S. 227,
309 U. S.
235-238, a trial according to the "law of the land,"
including all constitutional guarantees, both explicit and
necessarily implied from explicit language, and all valid laws
enacted pursuant to constitutionally granted powers.
See also
Adamson v. California, supra, 332 U.S. at
332 U. S. 68
(dissenting opinion). I think that the New York law here held
invalid is
Page 378 U. S. 408
in full accord with all the guarantees of the Federal
Constitution, and that it should not be held invalid by this Court
because of a belief that the Court can improve on the
Constitution.
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, 378 U. S. 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,
361 U. S. 205,
n. 5;
Payne v. Arkansas, 356 U. S. 560,
356 U. S.
561-562;
cf. United States ex rel. Toth v.
Quarles, 350 U. S. 11,
350 U. S. 18-19.
In the present case, the undisputed evidence showed:
"Petitioner committed a robbery in a hotel in New York. He ran
from the place to get away, was accosted by a policeman, and, after
some words, each shot the other. The policeman died. Petitioner
caught a cab and went directly to a hospital, arriving there about
2 a.m. In response to a question, he admitted that he had shot the
policeman. By 3:35 a.m., he had lost a considerable amount of blood
from serious gunshot wounds in his liver and one lung, and was
awaiting an operation which began
Page 378 U. S. 409
about an hour later and lasted about two hours. At 3:55, he was
given doses of demerol and scopolamine, which are sedative and
relaxing in their effects. During all the time he was in the
hospital, policemen were there. He had no counsel present, and no
friends. Immediately after the demerol and scopolamine were given
him, the assistant district attorney and a stenographer arrived. At
the time he was questioned by the assistant district attorney, he
was thirsty and asked for water, which was denied him either
because, as he testified, he could get no water until he confessed,
or because, as the State's witnesses testified, it was the
hospital's rule not to give water to preoperative patients. While
in this situation and condition, he gave in answer to questions the
confession that was used against him."
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,
322 U. S. 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
Page 378 U. S. 410
CLARK that what Jackson is entitled to is a complete new trial.
The Court's action makes use of the technique recently invented in
United States v. Shotwell Mfg. Co., 355 U.
S. 233, under which a defendant is subjected to
"piecemeal prosecution." 355 U.S. at
355 U. S. 250
(dissenting opinion). I think, as I said in
Shotwell, that
such a fragmentizing process violates the spirit of the
constitutional protection against double jeopardy, even if it does
not infringe it technically. In
Shotwell, the use of the
piecemeal procedure was justified by what were called the "peculiar
circumstances" of that case. 355 U.S. at
355 U. S. 243.
But, as this case demonstrates, the availability and usefulness of
the
Shotwell device in sustaining convictions and denying
defendants a new trial where all the facts are heard together are
too apparent for its use to be confined to exceptional cases. I
think
Shotwell was wrong, and should be overruled, not
extended, as the Court is doing.
[
Footnote 2/1]
I am by no means suggesting that I believe that it is within
this Court's power to treat as unconstitutional every state law or
procedure that the Court believes to be "unfair."
[
Footnote 2/2]
The trial judge may set aside a verdict if he believes it to be
"against the weight of the evidence." The state appellate courts
exercise the same power, and may set verdicts aside if for any
reason they believe that "justice requires" them to do so.
See N.Y.Code Crim.Proc. §§ 465, 528.
[
Footnote 2/3]
Morgan, Functions of Judge and Jury in the Determination of
Preliminary Questions of Fact, 43 Harv.L.Rev. 165, 168-169 (1929);
Meltzer, Involuntary Confessions: The Allocation of Responsibility
Between Judge and Jury, 21 U.Chi.L.Rev. 317, 325-326 (1954).
[
Footnote 2/4]
For a survey of the rule in the various States and in the
Federal Judicial Circuits,
see Appendices
378
U.S. 368appa|>A and
378
U.S. 368appb|>B.
[
Footnote 2/5]
See 378
U.S. 368appaii|>Appendix A.
[
Footnote 2/6]
See 378
U.S. 368appaii|>Appendix A.
[
Footnote 2/7]
The Court's opinion indicates that the judge will not make any
such statement to the jury. If the Court here is holding that it is
constitutionally impermissible for the judge to tell the jury that
he himself has decided that the confession is voluntary, that is
one thing. As I read the decisions in this field, however, I am far
from persuaded that there are not many States in which the judge
does admit the confession along with his statement that it is
voluntary.
[
Footnote 2/8]
New York Const., Art. I, § 2, also provides that a defendant may
not waive trial by jury if the crime with which he is charged may
be punishable by death.
[
Footnote 2/9]
McNerlin v. Denno, post, p. 575 (trial in New York
court);
Muschette v. United States, post, p. 569
(C.A.D.C.Cir);
Pea v. United States, post, p. 578
(C.A.D.C.Cir.);
Owen v. Arizona, post, p. 574;
Catanzaro v. New York, post, p. 573;
Del Hoyo v. New
York, post, p. 570;
Lathan v. New York, post, p. 566;
Oister v. Pennsylvania, post, p. 568;
Senk v.
Pennsylvania, post, p. 562;
Harris v. Texas, post, p.
572;
Lopez v. Texas, post, p. 567.
See also Berman v.
United States, post, p. 530, at
378 U. S. 532,
n. (dissenting opinion).
|
378
U.S. 368appa|
APPENDIX A TO OPINION OF MR. JUSTICE BLACK.
RULES FOLLOWED IN THE STATES TO DETERMINE
V
OLUNTARINESS 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
Page 378 U. S. 411
are not cited.
E.g., Commonwealth v. Knapp, 10 Pick.
(27 Mass.) 477, 495-496 (1830), approved the "orthodox" rule,
which, since
Commonwealth v. Preece, 140 Mass. 276, 277, 5
N.E. 494, 495 (1885), is no longer followed in Massachusetts.
[
Footnote 3/1]
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.
|
378
U.S. 368appai|
I
.
Wigmore [
Footnote 3/2]
or "Orthodox" Rule
"Judge hears all the evidence and then rules on voluntariness
for purpose of admissibility of confession; jury considers
voluntariness as affecting weight or credibility of
confession."
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. 354 U. S.
Alabama, 354
Page 378 U. S. 412
U.S. 393 (1957),
aff'd, 40 Ala.App. 116, 109 So. 2d 736
(1958),
cert. denied, 268 Ala. 699, 109 So. 2d 738 (1959),
rev'd on another point sub nom. Blackburn v. Alabama,
361 U. S. 199
(1960).
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 (Fla.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,
Page 378 U. S. 413
cert. denied, 323 U.S. 745 (1944);
Herd v.
Commonwealth, 294 Ky. 154, 156-157, 171 S.W.2d 32, 33
(1943).
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, N.D., 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,
935-939, 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).
Page 378 U. S. 414
UTAH:
State v. Braasch, 119 Utah 450, 455,
229 P.2d 289, 291
(1951),
cert. denied, 342 U.S. 910 (1952);
State v.
Mares, 113 Utah 225, 243-244, 192 P.2d 861, 870 (1948);
State v. Crank, 105 Utah 332, 346-355, 142 P.2d 178,
184-188 (1943).
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 Wash. 2d
144, 146-147,
372 P.2d
536,
538 (1962);
State v. Holman, 58 Wash. 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).
|
378
U.S. 368appaii|
II
.
"New York" Rule
"If there is a factual conflict in the evidence as to
voluntariness over which reasonable men could differ, the judge
leaves the question of voluntariness to the jury."
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.
Page 378 U. S. 415
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).
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, Mo.,
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).
Page 378 U. S. 416
OHIO: If the evidence as to voluntariness is conflicting, the
trial judge may in his discretion follow the New York rule;
otherwise he may follow the "orthodox" rule.
Burdge v.
State, 53 Ohio St. 512, 516-518, 42 N.E. 594, 595-596 (1895);
State v. Powell, 105 Ohio App. 529, 530-531, 148 N.E.2d
230, 231 (1957),
appeal dismissed, 167 Ohio St. 319, 148
N.E.2d 232 (1958),
cert. denied, 359 U.S. 964 (1959);
State v. Hensley, 31 Ohio Law Abst. 348, 349, 350
(1939).
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, 378 U.
S. 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,
378 U. S. 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.R. 208, 243-244
(1954);
People v. Declet, 65 P.R.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 "[i]f the evidence submitted
to the court should
Page 378 U. S. 417
be conflicting, leaving in the mind of the court any question as
to the competency of such confession");
cf. State v. Hinz,
78 S.D. 442, 449-450,
103 N.W.2d
656, 660 (1960).
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, 378 U.
S. 572;
Lopez v. State, 366
S.W.2d 587 (1963),
vacated and remanded on authority of the
present case sub nom. Lopez v. Texas, 378 U.
S. 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).
|
378
U.S. 368appaiii|
III
.
"Massachusetts" or "Humane" Rule
"Judge hears all the evidence and rules on voluntariness before
allowing confession into evidence; if he finds the confession
voluntary, jury is then instructed that it must also find that the
confession was voluntary before it may consider it."
ALASKA:
Smith v. United States, 268 F.2d 416, 420-421
(C.A.9th Cir. 1959).
Page 378 U. S. 418
ARIZONA:
State v. Hudson, 89 Ariz. 103, 106,
358 P.2d 332,
333-334 (1960);
State v. Pulliam, 87 Ariz. 216, 220-223,
349 P.2d 781,
784 (1960);
State v. Hood, 69 Ariz. 294, 299-300,
213 P.2d 368,
371-372 (1950);
State v. Johnson, 69 Ariz. 203, 206, 211
P.2d 469, 471 (1949).
But see State v. Federico, 94 Ariz.
413, 385 P.2d 706 (1963),
vacated and remanded on authority of
the present case sub nom. Owen v. Arizona, 378 U.
S. 574;
State v. Owen, 94 Ariz. 404, 409,
385 P.2d 700,
703 (1963),
vacated and remanded on authority of the present
case sub nom. Owen v. Arizona, 378 U.
S. 574;
State v. Preis, 89 Ariz. 336, 338,
362 P.2d 660,
661,
cert. denied, 368 U.S. 934 (1961) (seem to state or
follow New York rule).
CALIFORNIA:
People v. Bevins, 54 Cal. 2d 71,
76-77, 4 Cal. Rptr. 504, 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, 10 Terry 37, 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
Page 378 U. S. 419
Idaho 396, 401-402, 257 P. 370, 371 (1927) (seem to state
"orthodox" rule).
MAINE:
State v. Robbins, 135 Me. 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.
Page 378 U. S. 420
501, 557-560,
161 A.2d
520, 550-552 (1960),
cert. denied, 364 U.S. 936
(1961).
OKLAHOMA:
Williams v. State, 93 Okl.Cr. 260, 265, 226
P.2d 989, 993 (1951);
Lyons v. State, 77 Okl.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 Okl.Cr. 364, 374-375,
116
P.2d 728, 733 (1941).
But cf. Cornell v. State, 91
Okl.Cr. 175, 183-184, 217 P.2d 528, 532-533 (1950);
Pressley v.
State, 71 Okl.Cr. 436, 444-446,
112
P.2d 809, 813-814 (1941);
Rowan v. State, 57 Okl.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).
|
378
U.S. 368appb|
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,
162 U. S. 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.
Page 378 U. S. 421
Cases are cited below subject to the same qualifications set
forth in
378
U.S. 368appa|>Appendix A,
supra.
|
378
U.S. 368appbi|
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).
|
378
U.S. 368appbii|
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, (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
Page 378 U. S. 422
seems to apply New York rule and cites Pennsylvania cases
following it).
SIXTH CIRCUIT:
Anderson v. United States, 124 F.2d 58,
67 (1941),
rev'd on another point, 318 U. S. 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, 378 U.
S. 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, 378 U.
S. 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).
|
378
U.S. 368appbiii|
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,
162 U. S. 624
(1896), and apply Massachusetts rule).
Page 378 U. S. 423
NINTH CIRCUIT:
Leonard v. United States, 278 F.2d 418,
420-421 (1960) (
semble);
Smith v. United States,
268 F.2d 416, 420-421 (1959).
But cf. Pon Wing Quong v. United
States, 111 F.2d 751, 757 (1940) ("orthodox" rule).
[
Footnote 3/1]
The law in Nevada on this point apparently has not been settled.
Although
State v. Williams, 31 Nev. 360, 375-376, 102 P.
974, 980-981 (1909), appeared to establish the "orthodox" rule, the
Supreme Court of Nevada, in
State v. Fouquette, 67 Nev.
505, 533-534,
221 P.2d 404,
419 (1950),
cert. denied, 341 U.S. 932 (1951), stated that
the question was still open, and that the
Williams case
had not decided it. The trial judge in the Fouquette case applied
the Massachusetts rule.
[
Footnote 3/2]
See 3 Wigmore, Evidence (3d ed. 1940), § 861.
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.
[
Footnote 4/1] And, even after this
dialogue, petitioner's counsel
Page 378 U. S. 424
never made any motion to strike the statements or any objection
to their use by the jury, but challenged only the weight to be
given them. This is further shown by his failure to raise the
constitutionality of New York's practice at any time before
verdict, or thereafter on his motion for a new trial. Nor was it
raised or passed upon by New York's Court of Appeals. That court's
amended remittitur shows that the constitutional questions passed
upon were whether the "confession was coerced" and whether the
judge erred in failing to instruct the jury that, "in determining
the voluntary nature of the confession, they were to consider his
physical condition at the time thereof." 10 N.Y.2d 816, 221
N.Y.S.2d 521, 178 N.E.2d 234.
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
Page 378 U. S. 425
applicable to this case. In reaching out for this question, the
Court apparently relies on
Fay v. Noia, 372 U.
S. 391 (1963). While that case seems to have turned into
a legal "Mother Hubbard," I fail to see how it could govern this
situation.
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:
"If you determine that it was a confession, the statement
offered here, and if you determine that Jackson made it, and if you
determine that it is true; if you determine that it is accurate,
before you may use it, the law still says you must find that it is
voluntary, and the prosecution has the burden of proving that it
was a voluntary confession."
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.
[
Footnote 4/2] There, the jurors
were told to use the confession if they found it "in
Page 378 U. S. 426
accord with the truth. . . ." And Connecticut's highest court
held that the question was whether the conduct "induced the
defendant to confess falsely that he had committed the crime being
investigated."
State v. Rogers, 143 Conn. 167, at 173, 120
A.2d 409, at 412. Here, the judge warned the jury that, even if
they found the statements true, they must also find them voluntary
before they may use them. And the proof of voluntariness was placed
on the State. As my Brother BLACK says, the Court, in striking down
New York's procedure, thus "challenge[s] the soundness of the
Founders' great faith in jury trials." I too regret this
"downgrading of trial by jury," and join in Section I of Brother
BLACK's opinion. To me, it appears crystal clear that the charge
amply protected Jackson from the possibility that the jury might
have confused the question of voluntariness with the question of
truth. Dependence on jury trials is the keystone of our system of
criminal justice, and I regret that the Court lends its weight to
the destruction of this great safeguard to our liberties.
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
365 U. S. 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
Page 378 U. S. 427
reasoning of the Court, the petitioner would be entitled to a
new trial.
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.
[
Footnote 4/1]
"The Court: Judge Healy raised the point in cross-examination
that sedation of a kind was administered to the patient."
"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."
[
Footnote 4/2]
"No confession or admission of an accused is admissible in
evidence unless made freely and voluntarily, and not under the
influence of promises or threats. The fact that a confession was
procured by the employment of some artifice or deception does not
exclude the confession if it was not calculated, that is to say, if
the artifice or deception was not calculated to procure an untrue
statement. The motive of a person in confessing is of no
importance, provided the particular confession does not result from
threats, fear, or promises made by persons in actual or seeming
authority. The object of evidence is to get at the truth, and a
trick or device which has no tendency to produce a confession
except one in accordance with the truth does not render the
confession inadmissible. . . . The rules which surround the use of
a confession are designed and put into operation because of the
desire expressed in the law that the confession, if used, be
probably a true confession."
At
365 U. S.
542.
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 longstanding
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. [
Footnote 5/1]
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.
Page 378 U. S. 428
Today's holding is the more surprising because, as recently as
1953, the Court held precisely the opposite in
Stein v. New
York, 346 U. S. 156, and
in 1958 and again in 1959 implicitly accepted the constitutionality
of the New York rule,
Payne v. Arkansas, 356 U.
S. 560,
356 U. S. 568,
note 15;
Spano v. New York, 360 U.
S. 315,
360 U. S. 324.
[
Footnote 5/2]
I 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.
378 U. S.
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
378 U. S. 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.
378 U. S.
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
Page 378 U. S. 429
fact concerning the circumstances in which the confession was
made. Where there are facts "permitting different conclusions it is
left for the jury, under a proper submission, to say whether or not
there was coercion. . . ."
Id. at 364, 98 N.E.2d at
559.
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, [
Footnote 5/3] and in the practice in that
State "followed from an early day in a long line of cases."
People v. Doran, 246 N.Y. 409, 416, 159 N.E. 379, 381,
see cases cited therein at 416-417, 159 N.E. at 381-382.
Thus, by statutory enactment as well as by undeviating judicial
approbation, New York has evinced a deliberate procedural policy.
One may wonder how this Court can strike down such a deep-seated
state policy without giving a moment of attention to its origins or
justification.
At the core of this decision is the Court's unwillingness to
entrust to a jury the "exceedingly sensitive task,"
ante,
p.
378 U. S. 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
Page 378 U. S. 430
that the New York practice, in effect, the jury system, will not
work as intended, not possibilities that, working as it should, the
system will nevertheless produce the wrong result.
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,
348 U. S. 95,
[
Footnote 5/4] as a ground for
reversing a conviction or,
a fortiori, as the reason for
adopting generally a particular trial practice. "Our theory of
trial relies upon the ability of a jury to follow instructions."
Ibid. Two of the Court's past cases, especially, show how
foreign the premises of today's decision are to principles which
have hitherto been accepted as a matter of course.
In
Leland v. Oregon, 343 U. S. 790, the
appellant was charged with murder in the first degree. His defense
was insanity.
"In conformity with the applicable state law, the trial judge
instructed the jury that, although appellant was charged with
murder in the first degree, they might determine that he had
committed a lesser crime included in that charged. They were
further instructed that his plea of not guilty put in issue every
material and necessary element of the lesser degrees of homicide,
as well as of the offense charged in the indictment. The jury could
have returned any of five verdicts: (1) guilty of murder in the
first
Page 378 U. S. 431
degree if they found beyond a reasonable doubt that appellant
did the killing purposely and with deliberate and premeditated
malice; (2) guilty of murder in the second degree if they found
beyond a reasonable doubt that appellant did the killing purposely
and maliciously, but without deliberation and premeditation; (3)
guilty of manslaughter if they found beyond a reasonable doubt that
appellant did the killing without malice or deliberation, but upon
a sudden heat of passion caused by a provocation apparently
sufficient to make the passion irresistible; (4) not guilty if,
after a careful consideration of all the evidence, there remained
in their minds a reasonable doubt as to the existence of any of the
necessary elements of each degree of homicide; and (5) not guilty
by reason of insanity if they found beyond a reasonable doubt that
appellant was insane at the time of the offense charged."
Id. at
343 U. S.
793-794 (footnotes omitted).
These complex instructions, [
Footnote 5/5] which required the jurors to keep in mind
and apply the most subtle distinctions, were complicated still
further by the law of Oregon regarding the burden of proof on an
insanity defense:
". . . [The] instructions, and the charge as a whole, make it
clear that the burden of proof of guilt, and of all the necessary
elements of guilt, was placed squarely upon the State. As the jury
was told, this burden did not shift, but rested upon the State
throughout the trial, just as, according to the instructions,
Page 378 U. S. 432
appellant was presumed to be innocent until the jury was
convinced beyond a reasonable doubt that he was guilty. The jurors
were to consider separately the issue of legal sanity
per
se -- an issue set apart from the crime charged, to be
introduced by a special plea and decided by a special verdict. On
this issue, appellant had the burden of proof under the statute in
question here."
Id. at
343 U. S.
795-796 (footnotes omitted). 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
343 U. S. 800.
This Court responded:
"We think the charge to the jury was as clear as instructions to
juries ordinarily are or reasonably can be, and, with respect to
the State's burden of proof upon all the elements of the crime, the
charge was particularly emphatic. Juries have for centuries made
the basic decisions between guilt and innocence and between
criminal responsibility and legal insanity upon the basis of the
facts, as revealed by all the evidence, and the law, as explained
by instructions detailing the legal distinctions, the placement and
weight of the burden of proof, the effect of presumptions, the
meaning of intent, etc. We think that to condemn the operation of
this system here would be to condemn the system generally. We are
not prepared to do so."
Ibid.
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
Page 378 U. S. 433
does not mention, were present in
Leland: the factual
issue was extremely complex, and required the jury to make a
hazardous inference concerning the defendant's mental state, which
inference, in turn, depended on exceedingly subtle distinctions;
the instructions to the jury were themselves complex, their
complexity being necessitated by the complexity of the issues; the
crime charged was particularly heinous, and likely to have aroused
the community's, and, in particular, the jurors', anger; the
defendant had, beyond question, committed the act charged; the
possible, and, as it turned out, actual, penalty was death.
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 codefendants 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
Page 378 U. S. 434
contention that admission of the confession was reversible
error, the Court said:
"It is a basic premise of our jury system that the court states
the law to the jury and that the jury applies that law to the facts
as the jury finds them. Unless we proceed on the basis that the
jury will follow the court's instructions where those instructions
are clear and the circumstances are such that the jury can
reasonably be expected to follow them, the jury system makes little
sense. Based on faith that the jury will endeavor to follow the
court's instructions, our system of jury trial has produced one of
the most valuable and practical mechanisms in human experience for
dispensing substantial justice."
Id.at
352 U. S.
242.
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.
378 U. S. 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
378 U. S. 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
Page 378 U. S. 435
it not more "difficult, if not impossible,"
ante, p.
378 U. S. 389,
for the jurors to lodge the evidence in the right mental
compartments in a trial of five defendants than here, in a trial of
one?
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 nonconstitutional, 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
Page 378 U. S. 436
justice,
McNabb v. United States, 318 U.
S. 332,
318 U. S.
340-341, obviating any suggestion that this Court has
power to act here which it lacks in other situations.
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 waywardness, because to do so would
be to "condemn the system generally,"
Leland, supra, at
343 U. S. 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 U. S.
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. [
Footnote
5/6] Whatever their theoretical variance, in practice, the New
York and Massachusetts rules are likely to show a distinction
without a difference. Indeed, some commentators, and sometimes the
courts themselves, have been unable to see two distinct rules.
[
Footnote 5/7]
Page 378 U. S. 437
The Court finds significance in the fact that, under the
Massachusetts rule, "the judge's conclusions are clearly evident
from the record," and "his findings upon disputed issues of fact
are expressly stated or may be ascertainable from the record."
Ante, pp.
378 U. S.
378-379. It is difficult to see wherein the significance
lies. The "judge's conclusions" are no more than the admission or
exclusion of the confession. If the confession is admitted, his
findings of fact, if they can be ascertained, will, realistically,
either have no effect on review of the conviction for
constitutional correctness or will serve only to buttress an
independent conclusion that the confession was not
Page 378 U. S. 438
coerced. Indeed, unless the judge's findings of fact are stated
with particularity, the Massachusetts rule is indistinguishable
from the New York rule from the standpoint of federal direct or
collateral review of the constitutional question. Whichever
procedure is used, the reviewing court is required to give weight
to the state determination and reverse only if the confessions are
coerced as a matter of law.
See Lisenba v. California,
314 U. S. 219,
314 U. S.
236-238;
Payne v. Arkansas, 356 U.
S. 560,
356 U. S.
561-562. [
Footnote
5/8]
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.
378 U. S. 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
Page 378 U. S. 439
as it may, "[t]he states are free to allocate functions as
between judge and jury as they see fit."
Stein, supra, at
346 U. S. 179.
I, like the Court in
Stein, believe that this Court has no
authority to
"strike down as unconstitutional procedures so long established
and widely approved by state judiciaries, regardless of our
personal opinion as to their wisdom."
Ibid. This principle, alone here relevant, was founded
on a solid constitutional approach, the loss of which will do
serious disservice to the healthy working of our federal system in
the criminal field.
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.
378 U. S. 395,
when it tried Jackson according to its existing rules,
Page 378 U. S. 440
does not give the State its due. Those rules had been directly
considered and explicitly approved by this Court in
Stein
just seven years before Jackson was tried. They were implicitly
reaffirmed by this Court in
Spano, supra, little more than
one year before the trial. If the concept of due process has as
little stability as this case suggests, so that the States cannot
be sure from one year to the next what this Court, in the name of
due process, will require of them, surely they are entitled at
least to be heard on the question of retroactivity.
See my
dissenting opinion in
Pickelsimer v. Wainwright,
375 U. S. 2.
I would affirm. [
Footnote
5/9]
[
Footnote 5/1]
Whether or not the Court would permit the trial jury to render a
special verdict on the issue of coercion and, having found the
confession involuntary, go on to hear the evidence on and determine
the question of guilt is unclear.
See ante, pp.
378 U. S.
379-380 and p.
378 U. S. 391,
n. 19.
[
Footnote 5/2]
Indeed, in his petition for certiorari to review the judgment of
the New York Court of Appeals, 10 N.Y.2d 780, 219 N.Y.S.2d 621, 177
N.E.2d 59, which this Court denied, 368 U.S. 949, the petitioner
did not even challenge the constitutionality of the New York
procedure.
[
Footnote 5/3]
"On the trial of an indictment for any other crime than libel,
questions of law are to be decided by the court, saving the right
of the defendant to except; questions of fact by the jury. And
although the jury have the power to find a general verdict, which
includes questions of law as well as of fact, they are bound,
nevertheless, to receive as law what is laid down as such by the
court."
[
Footnote 5/4]
The Court does not question the sufficiency of the trial judge's
instructions in this case.
[
Footnote 5/5]
Their full complexity is not revealed even by the passage
quoted. Since the law permitted two different verdicts of guilty of
murder in the first degree, the difference being the inclusion or
not of a recommendation as to punishment, a total of six possible
verdicts was submitted to the jury for its consideration.
Leland v. Oregon, supra, at
343 U. S. 793,
n. 4.
[
Footnote 5/6]
E.g., Commonwealth v. Sheppard, 313 Mass., 590, 604, 48
N.E.2d 630, 639-640.
[
Footnote 5/7]
The majority of this Court itself proclaims its inability to
distinguish clearly between the States which do and those which do
not follow the rule now found by it to be constitutionally
required.
See ante, pp.
378 U. S.
378-379, note 9. In
378
U.S. 368appa|>Appendix A to the Court's opinion, the rules
in 14 States are listed as "doubtful."
Annotations in 85 A.L.R. 870 and 170 A.L.R. 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 U. S. 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).
[
Footnote 5/8]
If the Court's point is that, under the New York rule, there is
no way of knowing whether the jury has addressed itself specially
to the coerced confession issue at all, the point simply raises
again the fear of jury error discussed in the first section of this
opinion.
[
Footnote 5/9]
Like the Court,
ante, p.
378 U. S. 392,
n. 20, I reject petitioner's contention that, looking only to the
undisputed evidence, his confession must be deemed involuntary as a
matter of law.