(dissenting).
In my view the defendant created a factual issue on the question whether or not his post-arraignment confession was voluntary, and this question should have been submitted to the jury with instructions to disregard the confession unless they found it to have been voluntarily given. He testified that he was hazy from lack of narcotics at the time he gave the confession. On redirect he amplified and clarified this statement by saying that he was not feeling well and wanted to get out of the office as quickly as possible. The confession shows on its face that he either was lying in part or did not completely understand the questions, for he first admitted that he gave the package to Grant and then a few questions later said that he gave it to the agent. In these circumstances sufficient doubt was cast on the admissibility of the confession to require that the jury be given proper instructions on the question of voluntariness. The trial judge, however, not only said nothing on the issue, but accepted the evidence in full in a short instruction concluding with the completely damaging statement that defendant admitted he knew what was going on when he was being interrogated.
The question is thus more than one of police “protocol”; it is the nature of the evidence accepted by the judge and hence obviously by the jury as demonstrating guilt. It seems clear to me that, against the background just described, the confession should not have been sent to the jury for consideration without cautionary instructions, which were never given. Defendant’s failure to request such instructions .should not be held a waiver of the objection. The problem of coerced confessions is a familiar and recurring one, and the trial court can properly be expected to fashion appropriate instructions on the issue even when not specifically requested. The prejudicial impact of such confessions is so great and so final that the failure to give adequate instructions constitutes plain error. Fed. R. Grim. P. 52(b). I would therefore reverse and remand for a new trial.