(dissenting) :
Smallwood was convicted in 1953. Under the standards then prevailing, there is no question but that his confession was not involuntary and was properly admissible. If the Supreme Court had taken the case on direct review, it would have affirmed the conviction.1
Some eight to ten years after Small-wood’s conviction, the Supreme Court began to apply more stringent standards.2 *950Moving responsively to a sense of need to develop effective protections against oppressive police practices, evolving standards for the resolution of the involuntariness question were applied with an increasing exactness. Finally, those standards have been supplemented and, to a large extent displaced, by Miranda’s3 new standards. Miranda is not to be applied retroactively to this case,4 and the principal question on this appeal is what standard is to be applied in answering the question of involuntariness. That standard is not so uncertain in its general verbal formulation; our difficulty arises out of the practical- necessity to determine the dimensions of the rule by which we are to measure the conduct of the police in this case.
If the gauge is cut to the dimensions prescribed in the most recent pronouncements of the Supreme Court, there were some indicia of coercion. The length of the interrogation is the principal one, but the confession does not appear to have been its product. The confession was the direct and immediate result of his belief that the lie detector had revealed his falsehoods and disclosed the truth.5 He had consented to that test. He had sought no outside assistance, but nothing had been done or said to create in him the impression that he could not have done so had he wished. After the confession, he told his brother he “had been treated as good as gold.”
On the whole record, the circumstances are far milder than those in any case in which the Supreme Court has found a confession involuntary,6 to overturn the *951District Court’s finding here, the majority applies a still narrower gauge, for the conflicting inferences which the record supports are disregarded and the relatively mild indicia of coercion are accepted as conclusive. No case in the Supreme Court has commanded that approach. No case in the Supreme Court “dictates” an appellate finding of coercion here.
If the gauge is cut to the pattern of earlier Supreme Court cases, the confession was not even arguably coerced. In 1953, there was no decision, or group of decisions, in the Supreme Court which can be said to have foreshadowed proscription of the procedures followed by the police in this case.7
*952In Johnson8 the Supreme Court has clearly recorded its intention not to require the retrial of prisoners whose confessions were secured under procedures sanctioned by doctrine current at the time of trial or not forbidden by the reasonable implications of decisions then available for the governance of police conduct. If the police carefully observed the rules as reasonably understood in 1953, the burden of retrial ought not now in this belated collateral proceeding be cast upon the state, nor the risk of Small-wood’s release be cast upon the innocent public.
Smallwood is a violent man. His motivation is so primitive and poor that the psychiatrists agree that under the influence of alcoholic drink, he can be expected to become homicidal again. He is unquestionably guilty of the crime of which he was convicted; his confession was clearly truthful.
Such considerations are irrelevancies if his conviction was constitutionally infirm when the judgment was entered. Current astuteness in the protection of individual rights is not at odds with the interests of a society which places high values upon liberty and justice and freedom and fairness. It is the cornerstone of such a society. If one innocent suffers harm which an authoritarian society might have avoided, millions of individuals are assured of protection of their rights and of their dignity. But there was no such infirmity in Smallwood’s conviction, for all agree that in 1953 it was unassailable. The question then arises of the values which should govern judgment in the dubious application, thirteen years later, of a shortened standard to compel the release of this undeserving man of violence upon defenseless individuals when retrial may be impossible because of the unavailability of witnesses and civil commitment, the plaintive suggestion of the majority, highly uncertain.
Smallwood’s conditional release cannot correct any mistake the police made thirteen years ago. If the officers involved are still on active duty, today’s decision will not assist their understanding of their duty. What we say adds nothing to Miranda’s guidelines; they undermine them, for we inform police officials that, if they observe Miranda’s standards today, we may censure them for it tomorrow.
While today’s decision can make no positive contribution to police procedures in the future, it undermines what little finality there is in criminal judgments. This runs counter to the Supreme Court’s course in Johnson in which the desirability of finality in criminal judgments comporting with current constitutional standards is recognized. It is not fair to the states or to the public to vacate judgments as old as this one on the basis of evolving constitutional standards which could not have been reasonably anticipated by the police at the time they acted.
An appraisal of the values which influence our judgment point clearly toward affirmance. The principle of Johnson seems to me to require it.
For these reasons, I respectfully record my dissent.
. Thomas v. State of Arizona, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; Ash-down v. State of Utah, 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443; Crooker v. State of California, 357 U.S. 433, 78 S. Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. La-Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed. 2d 1523. These eases were decided in 1958, well after a direct appeal in this case would have reached the Supreme Court.
. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037; Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513; Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.
. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
. Smallwood’s actions during the questioning and shortly thereafter do not indicate that his will was broken by overbearing police. Until after the lie detector test, he stoutly denied his guilt. The extensive questioning, even against the background of incriminating physical evidence, did not cause him to waver. He uttered not a word to link himself to the crime. His prior dealings with the police were standing him in good stead. His consent to take the lie detector test was made in a noncoercive atmosphere, after a three-hour rest period during which he had been fed. His desire to take the test, beat it and thus secure his release, seems clear enough, but when faced with its negative results he almost immediately implicated himself. This indicates that his confession was the product of the results of the lie detector test, fairly rendered, and not here claimed to have been coercive. That he was not induced to talk by the length of the interrogation or any overbearing was reemphasized by Smallwood’s action subsequent to the two oral confessions. At first, he agreed to dictate a statement to the officers, and sign a transcript of it, but just after this procedure began he changed his mind and refused to proceed. He was not a malleable toy doing anything the police wanted. Later, the next afternoon, when the effect of any imagined coercive practices had dissipated, he signed a statement that he had not been abused or mistreated in any way.
. Without close comparison of the facts in the relevant Supreme Court cases with those in this case no conclusion can rest upon a firm foundation. An assumption that after Davis, the slightest pressure to speak is impermissible and unlawfully coercive, regardless of when it was exerted and under what circumstances, is unwarranted. “The nature and components of this problem, concerning as it does liberty and security, had better be overtly and critically examined than smothered by unanalyzed assumptions.” Culombe v. Connecticut, 367 U.S. 568, 578, 81 S.Ct. 1860, 1865.
Through the years it has been recognized that the police may use a certain amount of pressure, yet be free of unlawful coercion. As late as 1964 it was said with some validity that
“a fairly high degree of pressure may be applied before the [Supreme] Court will term the confession ‘involuntary.’ The rulings of the Court buttress such a conclusion. It has held that the use of certain psychological pressure tactics for a. limited time does not require exclusion of a resulting confession. The police may illegally detain the accused, fail to warn him of his rights, or deny him access to counsel without necessarily overbearing his will.” Spanogle, *951The Use of Coerced Confessions in State Courts, 17 Vand.L.Rev. 421, 428. Miranda has changed much of that, but we deal with pre-Miranda standards.
Nothing appears in the treatment of Smallwood to rival that received by Davis, Haynes, or Culombe. I need not now stop to detail the facts in those cases, but each was subjected to infinitely greater pressure than was Smallwood. Each of them understood that the police intended to extract a confession, regardless of its truth, and each finally succumbed to the pressure that was applied.
In contrast, Smallwood obviously believed that his detention would soon end after he beat the lie detector. That belief may prove Smallwood’s stupidity, but it is inconsistent with a theory of meek submission to the mounting pressures of extended interrogation. Here, too, the police are not easily cast in a villainous role. They carried out their duties as they knew them in 1953. They did nothing which they then had any reason to believe was an impropriety.
Culombe begins with the premise that questioning is not to be limited to an ineffective formal ceremony presided over by the suspect. “[Wjhatever reasonable means are needed to make the questioning effective must be also conceded to the police.” Despite the effect Miranda will have upon cases tried subsequent to its decision, the language of Culombe is still highly relevant to the decision of coercion issues in pre-Miranda eases.
. No coercion was found in Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522, decided in 1953, where the Court said:
“Both Stein and Cooper confessed only after about twelve hours of intermittent questioning. In each case this was stretched out over a 32-hour period, with the suspect sleeping and eating in the interim. In the case of Cooper, a substantial part of this time he spent driving a bargain with the police and the parole officers. It also is true that the questioning was by a number of officers at a time and by different officers at different times. But we cannot say that the use of successive officers to question these petitioners for the periods of time indicated is so oppressive as to overwhelm powers of resistance. While we have reversed convictions founded on confessions secured through interrogations by ‘relays,’ we have also sustained convictions when, under different circumstances, the relay technique was employed. But we have never gone so far as to hold that the Fourteenth Amendment requires a one-to-one ratio between interrogators and prisoners, or that extensive questioning of a prisoner automatically makes the evidence he gives in response constitutionally prohibited. “ x * *
“Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary.
“Cooper’s and Stem’s confessions obviously came when they were convinced that their dance was over and the time had come to pay the fiddler.”
Also, in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, decided in the same year, the illiterate petitioner was held after arrest for five days before being charged with the crime, and eighteen days before he was given a preliminary hearing. During the entire period he was without counsel’s aid. Yet the conviction withstood the scrutiny of the Supreme Court.
There was none of the “pressure of unrelenting interrogation” directed at Small-wood which the Court condemned in Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949). In that case Watts was arrested on November 12, 1947 and became a suspect for murder. He was questioned in relays by officers from about 11:30 that night until 3:00 o’clock the following morning. The same procedure of persistent interrogation from about 5:30 in the afternoon until about 3:00 o’clock the following morning, by a relay of six to *952eight officers, was pursued on the 13th, 14th, 15th, 17th, and 18th, when Watts finally broke. During the entire time he was given little food and less sleep. Between questioning sessions he was placed in “the hole.” See also Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810, and Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815, decided concurrently with Watts. In both Turner and Harris there was relay questioning and incommunicado detention of over five days’ duration.
These were the eases which the police in 1953 had available for their guidance, Stein v. People of State of New York and Brown v. Allen showing what was permissible and how extensive interrogation might be, Watts, Turner and Harris showing what was impermissible. The police here were well within the Stein and Brown limits.
. Johnson v. State of New Jersey, 384 U.S. 719, 731, 733, 86 S.Ct. 1772.