Jackson v. Denno

378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, 1964 U.S. LEXIS 826, 1 A.L.R. 3d 1205, 28 Ohio Op. 2d 177

• Court: Supreme Court of the United States
• Decided: June 22, 1964
• Docket: 62
• Status: Published

Opinions

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'ln the New York courts is invalid because it was founded upon a confession not properly 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.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 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.² The interview was completed at 4 a. m. An 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 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.³

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.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 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.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 term. Jackson’s conviction was affirmed by the New York Court of Appeals, 10 N. Y. 2d 780, 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, 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 Cin).

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 to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of vol-untariness, 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 volun-tariness 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.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.”⁷ Stein v. New York, 346 U. S. 156, 172. If an issue of coercion is presented, the judge may not resolve conflicting evidence or arrive at his independent appraisal of the voluntariness of the confession, one way or ohe 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,⁸ under which the jury passes on volun-tariness only after the judge has fully and independently resolved the issue against the accused,⁹ the judge’s con-elusions 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 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, 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 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.

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, swpra, 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.¹⁰

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 the determination of the coercion issue.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 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, 597; Gallegos v. Nebraska, 342 U. S. 55, 63, and was unequivocally put to rest in Rogers v. Richmond, supra, where it was held that the reliability of a confession has 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 545.¹²

It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only 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, 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 ca,n 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, 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.¹³ As a consequence, it cannot be assumed, as the Stein Court assumed, that the jury reliably found the facts against the accused.¹⁴ This unsound assumption undermines Stem’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.

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?¹⁵

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 vol-untariness, 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.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 modes of 'persuasion.’ ” Blackburn v. Alabama, 361 U. S. 199, 206.¹⁷

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. 147.¹⁸ Where pure 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.¹⁹ In our view, the New York procedure falls short of satisfying these constitutional requirements. Stein v. New York is overruled.

IY.

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 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.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.

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: 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 pre-empt functions that belong to state machinery in the administration of state criminal law.” 365 U. S., at 547-548.

It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which 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 con-féssion. 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.²²

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,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 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.

APPENDIX TO OPINION OF THE COURT.

Arizona : State v. Preis, 89 Ariz. 336, 338-339, 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, 169 P. 295 (judge must determine if freely and vountarily 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 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 Ore. 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 Ore. 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 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.), 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. 350; McBryde v. United States, 7 F. 2d 466.

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 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 by-passing 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, 439. See also Johnson v. Zerbst, 304 U. S. 458.

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. Tdld 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.”

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 ce’s of blood. Now, I am asking you, would that make any difference in the time that this — A. I don’t think so.”

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.”

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 Tests 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.

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.

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.

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.

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 vol-untariness 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 ALR 568; 85 ALR 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 Appendix.

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.

11 “[Rjeliance 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 forced confession is a false foundation for any conviction, while evidence obtained by illegal search and seizure, wire tapping, 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 192. The Court further noted in Stein that the detailed confessions were “corroborated throughout by other evidence,” 346 U. S., at 168, and felt it necessary to recount the context in which the confessions were obtained only from “a summary of the whole testimony,” 346 IT. S., at 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 175.

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.

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).

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.

15 See Rideau v. Louisiana, 373 U. S. 723, 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, 248: “The Government should not have the windfall of having the jury be influenced by 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 co-defendant under limiting instructions.) Krulewitch v. United States, 336 U. S. 440, 453: “The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U. S. 539, 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, 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).

16 Further obstacles to a reliable and fair determination of volun-tariness 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 maj1, 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.

17 Also see Gallegos v. Colorado, 370 U. S. 49; Culombe v. Connecticut, 367 U. S. 668; 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.

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.” Id., at 624.

The Court held in United States v. Carignan, 342 U. S. 36, 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, 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.”

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.

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.

21 Compare Townsend v. Sain, 372 U. S. 293, with Rogers v. Richmond, 365 U. S. 534.

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.

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, 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, 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.”