(dissenting):
As I am unable to agree with my colleagues in their disposition of this case, I respectfully dissent.
The Supreme Court of the United States, in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), held that a criminal defendant has a constitutional due process right to litigate, at some stage of his criminal trial, whether his pretrial statement, sought to be introduced against him by the prosecution, had been voluntarily rendered and to have a fair hearing and reliable determination on that issue uninfluenced by the truth or falsity of the statement itself. See United States v. Fayette, 388 F.2d 728 (2nd Cir. 1968); United States v. Inman, 352 F.2d 954 (4th Cir. 1965). The implementation of this decision in military practice is found in paragraphs 57g and 140 a (2), Manual for Courts-Martial, United States, 1969 (Revised edition). The latter provision makes it clear that court-martial evidentiary rules have incorporated the so-called “Massachusetts rule” effectuating the Jackson mandate — that there be a preliminary hearing out of the presence of the jury and, assuming the judge’s decision is adverse to the defendant, a final appraisal of voluntariness made by the jury.1 See United States v. Inman, supra; see also Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1967), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967).
It is at once obvious that in judicial systems such as this one, it is imperative that the jurors’ discretion to weigh the evidence and to freely make this determination be wholly unfettered and untainted by collateral influence. To this end, courts uniformly have held that it is improper for the judge in any way to make known to the jury his findings in his preliminary determination. See United States v. Cotton, 13 U.S.C.M.A. 176, 32 C.M.R. 176 (1962); United States v. Williams, 13 U.S.C.M.A. 208, 32 C.M.R. 208 (1962); United States v. Standing Soldier, 538 F.2d 196 (8th Cir. 1976), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976); United States v. Bear *182Killer, 534 F.2d 1253 (8th Cir. 1976), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); United States v. Fayette, supra; Clifton v. United States, supra; United States v. Inman, supra. As the Court explained in Bear Killer:2
The instruction, which informs the jury that in-custody statements are in law and in fact voluntary, renders superfluous any evidence relative to the conditions under which the statements were given. It makes impossible, as a general rule, the fulfillment of the jury’s duty to give the statements such weight as they deserve under all the circumstances.
* * * * * *
[F]airness requires that the court not disclose to the jury its finding of voluntariness. See United States v. Harper, 432 F.2d 100, 102 (5th Cir. 1970); Ellis v. Fitzharris, 407 F.2d 799, 803 n.8 (9th Cir. 1969); United States v. Fayette, 388 F.2d 728, 736 (2nd Cir. 1968). Disclosure places upon the in-custody statements the imprimatur of the court which, it must be presumed, influences the jury. See Lego v. Twomey, supra, 404 U.S. [477] at 483-484, 92 S.Ct. [619] at 623-624, 30 L.Ed. 2d [618] at 623-624 [1972].
Additionally, military trial judges have been specifically admonished against such revelations to the members of the court. For instance, paragraph 5 — 2 of the Military Judges’ Guide, Department of the Army Pamphlet 27-9 (1969), pointedly cautions:
Although court members are apprised of admissibility, the military judge’s specific factual findings should be announced only during an out-of-court hearing or side bar conference.
Notwithstanding all this, however, the trial judge in the present case charged the members that he was “convinced . that the statement was not obtained or induced by the use of a threat, promise, inducement, duress, or physical or mental abuse, amounting to coercion, unlawful influence, or unlawful inducement” and that after being fully warned of his legal rights, “the accused freely, knowingly, intelligently, and specifically waived his right to the assistance of Counsel, and the right to remain silent.” (Emphasis added).
The majority, while acknowledging the error of the trial judge’s instruction, nonetheless merely tests the instruction for prejudice to the appellant, and finds none.3 I submit that such a test is inappropriate. In United States v. Bear Killer, supra at 1259, the court reasoned:
The instruction [that the judge had found the statement voluntary but that it was up to the jury to determine the credibility and the weight to be given such statement] should not have been given and is not to be given in the future. But because we have not heretofore spoken on the matter, we consider whether the error was harmless.
In United States v. Standing Soldier, supra, the same court later that year expressly noted that Bear Killer's direction “that the instruction ‘is not to be given in the future’ is not applicable here,”4 underlining the warning that in such cases, where the trial bench was on notice by virtue of these two *183decisions not to give the instruction in question, the court would not test for prejudice.5
It now has been 17 years since this Court first admonished trial judges not to give an instruction such as this, which risks influencing the jury’s province in determining the voluntariness of an accused’s statement. See United States v. Williams, supra; United States v. Cotton, supra. Under these circumstances, a test for prejudice no longer is appropriate in this area fraught with mischief in the midnight of jurors’ subconscious. See United States v. Standing Soldier, supra; United States v. Bear Killer, supra.
In United States v. Shackelford, 2 M.J. 17, 19-20 (C.M.A.1976), this Court through Chief Judge Fletcher observed:
[I]t is common among jurors “to attempt to tune in on and adopt a trial judge’s appraisal of the facts . . . . Extreme caution must be observed to prevent a joinder of an exposure of a trial judge’s view of the facts and a juror’s natural curiosity about an affinity for that view from causing an abandonment of each juror’s personal factfinding responsibility.” [United States v. Clower], 23 U.S.C.M.A. [15] at 18, 48 C.M.R. [307] at 310 [(1974)].
The same theme was sounded by Judge Ferguson in his dissent in Cotton, directed specifically to this issue:6
The necessary inference from the emphasized statement of the law officer regarding the effect of his admission of the confession is the conclusion that his ruling, while subject to being overturned by the court members in their deliberations on appellant’s guilt or innocence, might properly be weighed by them as a factor in finally determining voluntariness.
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Permitting the fact finders to weigh the law officer’s determination as evidence in deciding a factual issue whose final resolution clearly lies only within their competence brings to bear against the appellant a consideration which he can in no way overcome. It leaves the military jury in a position of concluding only whether to review and overturn the ruling of one whose authoritative position and legal training are known to them and to which they normally accord great deference.
In the years since Cotton was decided, the Congress of the United States, this Court, and others have taken significant steps to elevate even more the reality and the perception of the military trial judge as a figure of authority. At this point in the development of military justice, this Court should no longer perpetuate the fiction that when a trial judge instructs the court that he is “convinced” of all the facts required to render the appellant’s pretrial statement voluntary, there is no fair risk that the court members would be influenced thereby in exercising their responsibility of determining the voluntariness of the statement beyond a reasonable doubt. The impressive and authoritative cloak of the judicial officer and all the power it represents simply belies this naive notion of innocence.
. Compare with the “orthodox view” of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) — that the voluntariness of a pretrial statement is a matter of law exclusively, to be resolved finally by the judge and that, therefore, no instruction on voluntariness is to be given to the jury. See United States v. Fayette, 388 F.2d 728 (2nd Cir. 1968); United States v. Inman, 352 F.2d 954 (4th Cir. 1965).
. United States v. Bear Killer, 534 F.2d 1253, 1258-59 (8th Cir. 1976), cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976) (emphasis added).
. The United States Army Court of Military Review did likewise. United States v. Clark, 5 M.J. 785 (A.C.M.R.1978). These judges find solace in the remainder of the instructions, set out fully in Judge Cook’s opinion, and I suppose, in the notion that jurors are presumed to follow the judge’s instructions. I find none. Rather, I believe that when the judge instructed the court that he was “convinced” of all the facts necessary to conclude that the statement was voluntary he rendered “superfluous any evidence relative to the conditions under which the statements were given” and any instructions that they could determine this issue anew. United States v. Bear Killer, supra at 1258-59. To conclude to the contrary is to delude oneself as to psychological reality.
. United States v. Standing Soldier, 538 F.2d 196, 204 n.9 (8th Cir. 1976), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976).
. The court also tested for prejudice to the accused from the erroneous instruction in United States v. Fayette, supra. However, it did so only because, in that circuit, where the orthodox view of Jackson v. Denno, supra, is applied, the instruction was harmless surplusage and “gave [the accused] a second chance not required by Jackson v. Denno . . ” Id. at 735. In the military, where the Massachusetts rule is practiced, however, the instruction is not mere surplusage and, therefore, must be legally correct in all respects.
. United States v. Cotton, 13 U.S.C.M.A. 176, 181-2, 32 C.M.R. 176, 181-2 (1962) (emphasis added).