Jackson v. Denno/Dissent Black

by Hugo Black

United States Supreme Court

378 U.S. 368

Jackson  v.  Denno

 Argued: Dec. 9 and 10, 1963. --- Decided: June 22, 1964

Mr. Justice BLACK, with whom Mr. Justice CLARK joins as to Part I of this opinion, dissenting in part and concurring in part.

In Stein v. New York, 346 U.S. 156, 177-179, 73 S.Ct. 1077, 1089-1090, 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 § unfair to a defendant, and therefore unconstitutional, ^[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 is voluntary. New York does not do this, although, as pointed out in Stein, supra, 346 U.S., at 174, 73 S.Ct. at 1087, the trial judge does have much power to consider this question both before and after a jury's final verdict is entered. ^[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 fact-finding by human fact-finders-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 fact-finders (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 Court does refer to commentators who have made the suggestion. ^[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, 150-151, 75 S.Ct. 194, 196; compare Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900, and has been approved in six of the 11 United States Court of Appeals Circuits. ^[4] Fourteen other States appear to require full-scale determinations as to voluntariness both by the trial court and the jury. ^[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.' ^[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 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. 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.' ^[7]

Another disadvantage to the defendant under the Court's new rule is the failure to say anything about the 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 173 and n. 17, 73 S.Ct., at 1087; 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. ^[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 § 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. 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.

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 Appendix A-II to this opinion and federal prisoners convicted in 6 federal judicial circuits listed in 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 84 S.Ct. 1927 (C.A.D.C.Cir.); Pea v. 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, 84 S.Ct. 702, 11 L.Ed.2d 650; Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41. 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. ^[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 all the States, instead of in just about one-third of them. But for the reasons already stated it is 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, 62 S.Ct. 1252, 86 L.Ed. 1595; Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; see also cases collected in Adamson v. California, 332 U.S. 46, 83, n. 12, 67 S.Ct. 1672, 1692, 91 L.Ed. 1903 (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 474, 62 S.Ct., at 1262 (dissenting opinion); cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, or economic legislation, see Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.E .2d 93. 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, 235-238, 60 S.Ct. 472, 476-477, 84 L.Ed. 716, 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 68, 67 S.Ct., at 1684 (dissenting opinion). I think that the New York law here held invalid is 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.

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, 84 S.Ct. 1489, 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, 83 S.Ct. 1336; Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472; Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682. 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, 205, n. 5, 80 S.Ct. 274, 279; Payne v. Arkansas, 356 U.S. 560, 561-562, 78 S.Ct. 844, 846-847; cf. United States ex rel. Toth v. Quarles, 350 U.S. 11, 18-19, 76 S.Ct. 1, 5-6, 100 L.Ed. 8. 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 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, 154, 64 S.Ct. 921, 926, 88 L.Ed. 1192, 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.

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 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, 78 S.Ct. 245, 2 L.Ed.2d 234, under which a defendant is subjected to 'piecemeal prosecution.' 355 U.S., at 250, 78 S.Ct., at 255 (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 243, 78 S.Ct., at 251. 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.

APPENDIX A TO OPINION OF MR. JUSTICE BLACK.

RULES FOLLOWED IN THE STATES TO DETERMINE VOLUNTARINESS 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 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. ^[10]

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.

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. Blackburn v. Alabama, 354 U.S. 393, 77 S.Ct. 1098, 1 L.Ed.2d 1423 (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, 80 S.Ct. 274 (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, 70 S.Ct. 516, 94 L.Ed. 1332 (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, 82 S.Ct. 639, 7 L.Ed.2d 543 (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, 78 S.Ct. 1394, 2 L.Ed.2d 1556 (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, Ky., 374 S.W.2d 481, 482-483 (1964); Bass v. Commonwealth, 296 Ky. 426, 431, 177 S.W.2d 386, 388, cert. denied, 323 U.S. 745, 65 S.Ct. 64, 89 L.Ed. 596 (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, 71 S.Ct. 611, 95 L.Ed. 1341 (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, 38 S.Ct. 8, 62 L.Ed. 517 (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, 81 S.Ct. 816, 5 L.Ed.2d 819 (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, 79 S.Ct. 134, 3 L.Ed.2d 117 (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).

UTAH: State v. Braasch, 119 Utah 450, 455, 229 P.2d 289, 291 (1951), cert. denied, 342 U.S. 910, 72 S.Ct. 304, 96 L.Ed. 681 (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, 170 A.L.R. 542 (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).

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.

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, 60 S.Ct. 1094, 84 L.Ed. 1410 (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, Mo., 376 s.W.2d 97, 103 (1964); State v. Bridges, Mo., 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, 77 S.Ct 237, 1 L.Ed.2d 167 (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, Mo., 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).

OHIO: If the evidence as to voluntariness is conflicting, the trial judge may in his discretion follow the New York rule; otherwise he may fol ow 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, 79 S.Ct. 882 (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, 84 S.Ct. 1928; 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, 84 S.Ct. 1926; Commonwealth v. Ross, 403 Pa. 358, 365, 169 A.2d 780, 784, cert. denied, 368 U.S. 904, 82 S.Ct. 182 (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, 81 S.Ct. 686 (1961); State v. Livingston, 223 S.C. 1, 6, 73 S.E.2d 850, 852 (1952), cert. denied, 345 U.S. 959, 73 S.Ct. 944 (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 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, Tex.Cr.App., 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, 84 S.Ct. 1930; Lopez v. State, Tex.Cr.App., 366 S.W.2d 587 (1963), vacated and remanded on authority of the present case sub nom. Lopez v. Texas, 378 U.S. 567, 84 S.Ct. 1924; 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, 66 S.Ct. 174, 90 L.Ed. 466 (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, 62 S.Ct. 1139, 86 L.Ed. 1663 (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).

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).

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, 84 S.Ct. 1932; 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, 84 S.Ct. 1932; State v. Preis, 89 Ariz. 336, 338, 362 P.2d 660, 661, cert. denied, 368 U.S. 934, 82 S.Ct. 372 (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, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (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, 75 S.Ct. 574, 99 L.Ed. 765 (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 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, 82 S.Ct. 399, 7 L.Ed.2d 389 (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, 74 S.Ct. 634, 98 L.Ed. 1088 (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, 72 S.Ct. 141 (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.

501, 557-560, 161 A.2d 520, 550-552 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (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, 64 S.Ct. 1208, 88 L.Ed. 1481 (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).

APPENDIX B TO OPINION OF MR. JUSTICE BLACK.

RULES FOLLOW D IN THE FEDERAL JUDICIAL CIRCUITS TO DETERMINE VOLUNTARINESS OF CONFESSIONS.

In Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900 (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. Cases are cited below subject to the same qualifications set forth in Appendix A, supra.

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, 83 S.Ct. 939 (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, 60 S.Ct. 1104, 84 L.Ed. 1411 (1940). But cf. Duncan v. United States, 197 F.2d 935, 937-938, cert. denied, 344 U.S. 885, 73 S.Ct. 185, 97 L.Ed. 685 (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, 83 S.Ct. 1878, 10 L.Ed.2d 1055 (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).

II. 'New York' Rule.

SECOND CIRCUIT: United States v. Leviton, 193 F.2d 848, 852 (1951), cert. denied, 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350 (1952); but cf. United States v. Gottfried, 165 F.2d 360, 367 (1948), cert. denied, 333 U.S. 860, 68 S.Ct. 738 (1948) ('orthodox' rule); United States v. Lustig, 163 F.2d 85, 88-89, cert. denied, 332 U.S. 775, 68 S.Ct. 88 (1947) ('orthodox' rule); United States v. Aviles, 2 Cir., 274 F.2d 179, 192, cert. denied Evola v. U.S., 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009, and Santora v. U.S., 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1010, and Lessa v. U.S., 362 U.S. 974, 80 S.Ct. 1058, 4 L.Ed.2d 1010, and Capece v. U.S., 362 U.S. 974, 80 S.Ct. 1058, 4 L.Ed.2d 1010, and Di Palermo v. U.S., 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1010, and Genavese v. U.S., 362 U.S. 974, 80 S.Ct. 1059, 4 L.Ed.2d 1010, and Di Palermo v. U.S., 362 U.S. 982, 80 S.Ct. 1068, 4 L.Ed.2d 1015, and Palizzano v. U.S., 362 U.S. 982, 80 S.Ct. 1071, 4 L.Ed.2d 1016, and Barcellona v. U.S., 362 U.S. 982, 80 S.Ct. 1073, 4 L.Ed.2d 1016 (1960) (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 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. 350, 63 S.Ct. 599 (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, 76 S.Ct. 58 (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, 43 S.Ct. 362 (1923) (appears to state 'orthodox' rule).

EIGHTH CIRCUIT: Hayes v. United States, 296 F.2d 657, 670 (1961), cert. denied, 369 U.S. 867, 82 S.Ct. 1033 (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, 84 S.Ct. 1929; 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, 84 S.Ct. 1927; 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, 60 S.Ct. 1094, 84 L.Ed. 1410 (1940); cf. Sawyer v. United States, 112 U.S.App.D.C. 381, 303 F.2d 392, 393 (1962).

III. 'Massachusetts' Rule.

FOURTH CIRCUIT: Denny v. United States, 151 F.2d 828, 833 (1945), cert. denied, 327 U.S. 777, 66 S.Ct. 521 (1946) (appears to follow Wilson v. United States, 162 U.S. 613, 624, 16 S.Ct. 895, 900 (1896), and apply Massachusetts rule).

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).

Notes

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.'
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.
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).
4. For a survey of the rule in the various States and in the Federal Judicial Circuits, see Appendices A and B.
5. See Appendix A.
6. See Appendix A.
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.
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.
9. McNerlin v. Denno, 378 U.S. 575, 84 S.Ct. 1933 (trial in New York court); Muschette v. United States, 378 U.S. 569, 84 S.Ct. 1927 (C.A.D.C.Cir); Pea v. United States, 378 U.S. 578, 84 S.Ct. 1929 (C.A.D.C.Cir.); Owen v. Arizona, 378 U.S. 574, 84 S.Ct. 1932; Catanzaro v. New York, 378 U.S. 573, 84 S.Ct. 1931; Del Hoyo v. New York, 378 U.S. 570, 84 S.Ct. 1928; Lathan v. New York, 378 U.S. 566, 84 S.Ct. 1923; Oister v. Pennsylvania, 378 U.S. 568, 84 S.Ct. 1926; Senk v. Pennsylvania, 378 U.S. 562, 84 S.Ct. 1928; Harris v. Texas, 378 U.S. 572, 84 S.Ct. 1930; Lopez v. Texas, 378 U.S. 567, 84 S.Ct. 1924. See also Berman v. United States, 378 U.S. 530, at 532, n., 84 S.Ct. 1895, at 1896 (dissenting opinion).
10. 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, 71 S.Ct. 799, 95 L.Ed. 1361 (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.