Kalin, J.
Appellant was found guilty by a jury of the crime of burglary in the second degree. Such a verdict is supported by the evidence which was permitted to be considered by the jury.
Prior to trial, a hearing was held pursuant to Rule of Pleading, Practice and Procedure 101.20W, RCW vol. 0, to determine the admissibility of appellant’s confession. At the conclusion of this pretrial proceeding, the trial court orally ruled:
Well, I believe that the evidence preponderates strongly, as a matter of fact beyond all reasonable doubt, in favor of the state’s position, that this was a voluntary confession, or a voluntary statement. At least that is my evaluation of the evidence.
Prepare findings of fact and conclusions in this regard.
This was never reduced to writing. There was no record of undisputed and disputed facts, nor conclusions as to disputed facts, nor were any reasons given in the oral ruling. At trial, no instructions were given to the jury as to the weight and credibility to be given to the confession.
Appellant assigns error to the trial court’s failure to make a written record of its findings in the confession procedure, in admitting the written confession in evidence, and in failing to instruct the jury on the weight and credibility to be given the confession.
Rule 101.20W (a) reads in part:
In every criminal case in which a confession . . . [is] to be offered in evidence, the judge, either at the time of the trial or prior thereto,
shall
hold a hearing, in the absence of the jury for the purpose of determining whether . . . the confession was voluntary, and, therefore admissible. (Italics ours.)
Subdivision (b) of the rule states, “It
shall
be the duty of the trial judge to inform the defendant that: . . .” (Italics ours.) and enumerates the rights granted the defendant under this subdivision of the rule.
Subdivision (c) of the rule states:
After the hearing the trial judge
shall
set forth in writing (1) the undisputed facts; (2) the disputed facts; (3) his conclusions as to the disputed facts; (4) his conclusion as to whether the confession was voluntary and admissible, or involuntary and inadmissible, with reasons in either case. (Italics ours.)
Subdivision (d) of the rule sets forth the rights of the defendant when the confession is ruled admissible, with (4) of this subdivision stating “the jury
shall
be instructed” (Italics ours.) as to the weight and credibility to be accorded such confession if the defense raises the issue of voluntariness.
Rule 101.20W,
our confession procedure rule, was very carefully drafted to protect the rights of the criminally accused. The safeguards it extolls are in clear, unambigu
ous, and simple language so that it is not subject to misinterpretation.
The rule is designed to prescribe a uniform procedure for the admission of voluntary confessions into evidence so that a jury will not have an opportunity to consider an involuntarily obtained confession.
In our procedure, the judge makes the determination of the issue of voluntariness in the absence of the jury. This is in accord with the recent pronouncement on the subject by the United States Supreme Court in
Jackson v. Denno,
378 U.S. 368, 12 L. Ed.2d 908, 84 Sup. Ct. 1774, 1 A.L.R.3d 1205 (1964). The majority in
Jackson v. Denno
held that due process requires the judge, or a jury convened solely for the purpose, to determine the voluntariness of a confession; to find upon consideration of the pertinent evidence, including disputed facts, whether the confession was coerced or voluntary, and only where it is found to be voluntary, is the confession submitted to the jury deciding guilt. Of course, the procedure for determining voluntariness varies in different jurisdictions. See Annotation 1 A.L.R.3d 1251. However, there is no doubt that the Washington procedure meets the federal constitutional requirements.
In
State v. Jones,
65 Wn.2d 449, 397 P.2d 815 (1964), the court held that the trial court’s failure to adhere strictly to the confession rule did not in fact result in a violation of the defendant’s constitutional rights. There, the trial court found defendant’s declaration was an exculpatory statement rather than a confession and ruled that there was no requirement that the confession procedure be followed. However, this court said, p. 438:
The statements were, however, quite incriminating and their admissibility was challenged upon the ground that they were involuntarily induced. Under such circumstances, the requirements of due process are not to be measured by hairline distinctions between admissions, exculpatory statements, and confessions. The procedure outlined in Rule 101.20W,
supra,
should be invoked.
Dean Stevens, commenting on Rule 101.20W(c) (3), states:
The objective is to assure a careful consideration of the facts and of the law by the trial judge. These findings of fact and conclusions of law will, when properly prepared, prevent unnecessary appeals and reduce applications for habeas corpus on the one hand, and will facilitate correction by appeal where error is apparent on the other. Stevens,
Confessions and Criminal Procedure,
34 Wash. L. Rev. 542, 559.
We now hold that the language in Rule 101.20W is mandatory. See
State v. Plumley,
65 Wn.2d 592 398 P.2d 714 (1965) and
State v. Hoffman,
64 Wn.2d 445, 392 P.2d 237 (1964). Compliance with the rule not only protects the constitutional rights of a defendant in a criminal proceeding, but when a ruling and reasons therefor are reduced to writing as prescribed, a reviewable record is available on appeal.
As the record in the present case now stands, we are unable to determine what the trial court’s reasons were for his oral ruling. We do not know what his findings were to undisputed facts and disputed facts and conclusions thereto. We do not know whether he found that there were inducements, but nevertheless concluded that the confession was still admissible. None of these facts appear in his oral ruling. A statement attributed to one Detective Sprinkle by defendant suggesting inducement, which was undisputed in the confession procedure, was not commented on by the trial court.
No instruction as to the weight and credibility of the confession as prescribed by Rule 101.20W (d) (4) was given; nor was any requested by either the state or defendant.
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Kalin, J.
Appellant was found guilty by a jury of the crime of burglary in the second degree. Such a verdict is supported by the evidence which was permitted to be considered by the jury.
Prior to trial, a hearing was held pursuant to Rule of Pleading, Practice and Procedure 101.20W, RCW vol. 0, to determine the admissibility of appellant’s confession. At the conclusion of this pretrial proceeding, the trial court orally ruled:
Well, I believe that the evidence preponderates strongly, as a matter of fact beyond all reasonable doubt, in favor of the state’s position, that this was a voluntary confession, or a voluntary statement. At least that is my evaluation of the evidence.
Prepare findings of fact and conclusions in this regard.
This was never reduced to writing. There was no record of undisputed and disputed facts, nor conclusions as to disputed facts, nor were any reasons given in the oral ruling. At trial, no instructions were given to the jury as to the weight and credibility to be given to the confession.
Appellant assigns error to the trial court’s failure to make a written record of its findings in the confession procedure, in admitting the written confession in evidence, and in failing to instruct the jury on the weight and credibility to be given the confession.
Rule 101.20W (a) reads in part:
In every criminal case in which a confession . . . [is] to be offered in evidence, the judge, either at the time of the trial or prior thereto,
shall
hold a hearing, in the absence of the jury for the purpose of determining whether . . . the confession was voluntary, and, therefore admissible. (Italics ours.)
Subdivision (b) of the rule states, “It
shall
be the duty of the trial judge to inform the defendant that: . . .” (Italics ours.) and enumerates the rights granted the defendant under this subdivision of the rule.
Subdivision (c) of the rule states:
After the hearing the trial judge
shall
set forth in writing (1) the undisputed facts; (2) the disputed facts; (3) his conclusions as to the disputed facts; (4) his conclusion as to whether the confession was voluntary and admissible, or involuntary and inadmissible, with reasons in either case. (Italics ours.)
Subdivision (d) of the rule sets forth the rights of the defendant when the confession is ruled admissible, with (4) of this subdivision stating “the jury
shall
be instructed” (Italics ours.) as to the weight and credibility to be accorded such confession if the defense raises the issue of voluntariness.
Rule 101.20W,
our confession procedure rule, was very carefully drafted to protect the rights of the criminally accused. The safeguards it extolls are in clear, unambigu
ous, and simple language so that it is not subject to misinterpretation.
The rule is designed to prescribe a uniform procedure for the admission of voluntary confessions into evidence so that a jury will not have an opportunity to consider an involuntarily obtained confession.
In our procedure, the judge makes the determination of the issue of voluntariness in the absence of the jury. This is in accord with the recent pronouncement on the subject by the United States Supreme Court in
Jackson v. Denno,
378 U.S. 368, 12 L. Ed.2d 908, 84 Sup. Ct. 1774, 1 A.L.R.3d 1205 (1964). The majority in
Jackson v. Denno
held that due process requires the judge, or a jury convened solely for the purpose, to determine the voluntariness of a confession; to find upon consideration of the pertinent evidence, including disputed facts, whether the confession was coerced or voluntary, and only where it is found to be voluntary, is the confession submitted to the jury deciding guilt. Of course, the procedure for determining voluntariness varies in different jurisdictions. See Annotation 1 A.L.R.3d 1251. However, there is no doubt that the Washington procedure meets the federal constitutional requirements.
In
State v. Jones,
65 Wn.2d 449, 397 P.2d 815 (1964), the court held that the trial court’s failure to adhere strictly to the confession rule did not in fact result in a violation of the defendant’s constitutional rights. There, the trial court found defendant’s declaration was an exculpatory statement rather than a confession and ruled that there was no requirement that the confession procedure be followed. However, this court said, p. 438:
The statements were, however, quite incriminating and their admissibility was challenged upon the ground that they were involuntarily induced. Under such circumstances, the requirements of due process are not to be measured by hairline distinctions between admissions, exculpatory statements, and confessions. The procedure outlined in Rule 101.20W,
supra,
should be invoked.
Dean Stevens, commenting on Rule 101.20W(c) (3), states:
The objective is to assure a careful consideration of the facts and of the law by the trial judge. These findings of fact and conclusions of law will, when properly prepared, prevent unnecessary appeals and reduce applications for habeas corpus on the one hand, and will facilitate correction by appeal where error is apparent on the other. Stevens,
Confessions and Criminal Procedure,
34 Wash. L. Rev. 542, 559.
We now hold that the language in Rule 101.20W is mandatory. See
State v. Plumley,
65 Wn.2d 592 398 P.2d 714 (1965) and
State v. Hoffman,
64 Wn.2d 445, 392 P.2d 237 (1964). Compliance with the rule not only protects the constitutional rights of a defendant in a criminal proceeding, but when a ruling and reasons therefor are reduced to writing as prescribed, a reviewable record is available on appeal.
As the record in the present case now stands, we are unable to determine what the trial court’s reasons were for his oral ruling. We do not know what his findings were to undisputed facts and disputed facts and conclusions thereto. We do not know whether he found that there were inducements, but nevertheless concluded that the confession was still admissible. None of these facts appear in his oral ruling. A statement attributed to one Detective Sprinkle by defendant suggesting inducement, which was undisputed in the confession procedure, was not commented on by the trial court.
No instruction as to the weight and credibility of the confession as prescribed by Rule 101.20W (d) (4) was given; nor was any requested by either the state or defendant.
The “shah” in Rule 101.20W (d) (4), unlike the substantive rights specified in other subdivisions of the rule, is directive rather than mandatory. The instruction as to weight and credibility of a confession is a procedural provision rather than an absolute constitutional right. Defendant cannot fail to request this instruction and then assign error to the court’s failure to give it. In
Seattle v. Love,
61 Wn.2d 113, 377 P.2d 255 (1962), where there was no request by the defense for an instruction on presumption
of innocence, burden of proof and reasonable doubt, the conviction was affirmed. We can visualize where, for strategic reasons, the defendant may not desire that an instruction as to weight and credibility of a confession be given because it may tend to highlight the confession in the eyes of the jurors.
We reiterate our belief that in cases hereafter to be tried, a proper determination of voluntariness be made consonant with Rule 101.20W prior to the admission of the confession to the jury. As to the present defendant who has already been convicted and now seeks collateral relief, in harmony with
Jackson v. Denno, supra,
we do not say that the constitution requires a new trial if, in a soundly conducted collateral proceeding, the confession which was admitted at the trial is reasonably determined to be voluntary. If there is a finding that the confession was voluntary, the verdict must stand; if involuntary, the defendant must be granted a new trial.
The cause is remanded with directions to proceed in accordance herewith.
Rosellint, C. J., Hill, Hunter, and Hale, JJ., concur.