(concurring in result):
I have a different view from that of my brethren as to the rule appropriate in implementing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), concerning the standard that properly governs the trial judge when making a determination as to the voluntariness of defendant’s confession before permitting its presentation in evidence in a criminal case tried to a jury.
1. As to all cases tried subsequent to Jackson v. Denno, the standards and procedures that are applicable, in my view, are those stated in United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965), where Judge Bryan succinctly outlined the procedure prescribed for the district courts in our neighboring circuit:
To assure the accused complete protection, the procedure should substantially be this. On proffer of the confession, even though there be no objection, the court should let the jury withdraw, and then take evidence upon the confession and its factual setting. On this voir dire the defendant may testify without prejudice to his privilege not to take the stand before the jury, but he may be examined or cross-examined only with regard to the origin and character of the confession, not upon his innocence or guilt. The court will thereupon independently determine whether the confession is admissible.
*361In this determination the District Judge will evaluate the evidence to ascertain whether, after resolving any conflicts therein, it convinces him beyond a reasonable doubt that the confession was voluntary. Unless the judge is so persuaded, the confession may not be admitted. If, however, he is satisfied beyond a reasonable doubt of its voluntariness, he should explicitly make and include in the record a finding of that fact. (Emphasis added.)
******
Following the voir dire hearing, the trial will proceed with or without the confession, according to whether it was received or rejected. If admitted, the court should instruct the jury, whether requested or not, upon the law governing the use of a confession. Stevenson v. Boles, 331 F.2d 939 (4 Cir. 1964), aff’d per curiam, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109. Included would be a forthright caution that before giving any weight to the confession, the jury must be satisfied beyond a reasonable doubt that it had been made by the accused uninfluenced by promise of reward, threat of injury or diminution of his rights.
Applying a reasonable doubt standard would not be a strange or exotic task for a judge. Every time he tries a criminal case without a jury he must find all the elements of a crime established beyond a reasonable doubt. The determination by a judge of the voluntariness of a confession is so significant in the final assessment of guilt or innocence, and relates to such basic values in our system of jurisprudence, that it must be governed by the same standards as apply to the elements of the crime, and is not to be relegated to a lower plane on the ground that it is a mere ruling on a point of evidence.
We are not dealing with an ordinary ruling on evidence. The exclusion of confessions not shown to be voluntary inheres in the constitutional privilege against self-incrimination. Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Malloy v. Hogan, 378 U.S. 1, 6-7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The historical root is the maxim nemo tenetur seipsum acensare, “no one shall be held to accuse himself.” “ [This] maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of constitutional enactment.” Brown v. Walker, 161 U.S. 591, 596-597, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896), quoted in Miranda, supra, 384 U.S. at 442-443, 86 S.Ct. 1602.
In Dram Justice White, later the Chief Justice, explored the “quantum of proof” necessary to show the voluntariness of a confession. The current vitality of his approach is attested by the recent and extensive reliance on his opinion.1 He expressly declared that in the court’s: determination whether to admit a confession “any doubt as to whether the confession was voluntary must be determined in favor of the accused.” 168 U.S. at 565, 18 S.Ct. at 195. In Harrold v. Territory of Oklahoma, 169 F. 47, 53-54 (8th Cir. 1909), Judge Sanborn cited Bram and spelled out its requirement:
The burden was upon the prosecutor to' prove to the court that the confession was voluntary, that it was not. influenced by compulsion, hope, fear, or other inducement of any sort, and, if the evidence failed to establish that fact beyond a reasonable doubt, it was the duty of the court to reject the confession.
Other decisions that applied the same rule are cited in the footnote.2 This aspect of Bram was not applied in the District of Columbia, where “voluntariness” was for determination by the jury under *362the reasonable doubt standard, and local “law and practice” contemplated submission of the confession to the jury without a finding of voluntariness by the court. Wright v. United States, 102 U.S.App.D.C. 36, 45, 250 F.2d 4, 13 (1957). Prior to Jackson v. Denno there was no ruling that the Constitution required a judicial determination of volun-tariness.
That the court making the determination of voluntariness required of the court by Jackson v. Denno should be governed by the standard of being convinced beyond a reasonable doubt, and not by the analytically lower standard of proof to the “satisfaction of the court” which governs findings of fact involved in ordinary rulings on evidence, is attributable to the distinctive nature of the voluntariness determination. It has the deepest roots in our Constitution and system of jurisprudence. And it relates to a matter which is usually the key item in the proof of guilt, and certainly one of overpowering weight with the jury. The very introduction of an involuntary confession is a denial of constitutional rights so prejudicial as to vitiate the conviction irrespective of the quantum of other untainted evidence demonstrating the guilt of the accused.3
Plainly the jury must disregard a confession unless they find it voluntary beyond a reasonable doubt. That was recognized by both federal and state courts in both the pre-Jackson era4 and in the post -Jackson cases wherein this issue was re-submitted to the jury.5
In Jackson the Supreme Court held that procedures in the trial court must “be fully adequate to insure a reliable and clear-cut determination of the volun-tariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” 378 U.S. at 391, 84 S.Ct. at 1788. So important is the need for reliability that the basic and primary determination must be made by the court. This is not to derogate from the jury as such, but to recognize the prejudice inhering in the admixture of a determination of voluntariness together with the jury’s inescapable consideration of reliability of the confession, and indeed ultimate guilt or innocence.
Certainly the need for a finding beyond a reasonable doubt must govern the judge operating under the orthodox, or Wig-more, rule, where the issue of voluntariness is not presented as such to the jury. And Jackson makes clear that the Supreme Court’s approval of the Massachusetts rule rests on the premise that it provides as much protection as the orthodox rule in regard to the screening by the judge, which remains the basic determination safeguarding the accused even though the voluntariness is re-submitted to the jury. See 378 U.S. at 378 n. 8, 84 S.Ct. at 1781.
It is true that in Jackson v. Denno the Supreme Court did not expressly address itself to the question before us. But to me a reasonable doubt standard for the judge’s determination of voluntariness ensues from the Court’s reasoning as surely as Euclid’s corollaries unfolded *363from his theorems. The decisive ruling in Jackson v. Denno is that it is the determination of voluntariness by the judge which is crucial to our constitutional liberties. Any redetermination by the jury may be “ultimate” in time but not in constitutional significance.
Practical considerations of proof underscore the importance of the court’s use of the reasonable-doubt standard, notwithstanding a later submission to the jury. There may be more evidence before the court than before the jury, for example the testimony of a defendant who dare not risk presentation of prior convictions to the jury. It would be unjust if such evidence raised a reasonable doubt only to find that this doubt was ignored by the judge, under the rule proclaimed by the majority, and was never available to the jury.
Finally attention should be called to the weight of the post -Jackson rulings that the judge must determine voluntariness of the confession beyond a reasonable doubt. States that applied this standard prior to Jackson have continued it.6 Rulings to this effect appear not only in jurisdictions applying the orthodox rule,7 but also in jurisdictions, like New York, which resubmit the issue of voluntariness to the jury.8 This standard has been adopted even where the court expressly took into account that it was dealing with a rule of evidence.9
The view I hold is the result reached not only by the Fourth Circuit but also, so far as I am aware, by every other court that has analyzed Jackson in its opinion, And it is not without significance that the majority have not adduced any post-Jackson ruling discarding the reasonable doubt standard for the trial judge which they can champion as authoritative.10
2. Assuming, however, that the reasonable doubt standard for the judge is not a constitutional prerequisite in a jurisdiction where the issue is resubmitted to the jury, the reasonable doubt standard for the judge should be enunciated in the exercise of our responsibility to exercise supervisory powers over the administration of justice in the District of Columbia. Cf. Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245, 252 (1966), and cases cited. I see no reason for our rejection of a rule approved by the Supreme Court in Brain and recently adopted by both federal and state courts (see notes 7-9 supra) as an incident of Jackson v. Denno.
3. However, the requirement that a reasonable doubt standard govern the judge’s determination of voluntariness should not, in my view, be applied retroactively to a conviction which became final some sixteen years before Jackson was decided.
Jackson v. Denno is plainly retroactive in the sense that it applies to cases even though judgment has already become final, so as to require a judicial determination of voluntariness when there was no judicial screening of the issue prior *364to its presentation to the jury in a setting likely to prejudice a defendant.11 This does not govern the question whether similar retroactivity is requisite in a case where there was a preliminary judicial determination but it is contended that although the judge was satisfied of volun-tariness he was not convinced beyond a reasonable doubt.
There are substantial considerations for withholding retroactivity as to this aspect of Jackson v. Denno. The fact that the judge was independently “satisfied” of voluntariness removes the most serious prejudice, the prejudice that appears in the case where “some evidence” was enough to bring the confession into the juryroom. There is only a relatively narrow zone of cases in which a judge in a criminal matter will be “satisfied” of voluntariness though he harbors a reasonable doubt.
On the other side of the coin lie considerations of judicial administration. Whether consideration is to be by the same or another judge, it becomes extraordinarily difficult of ascertainment whether a judge who was convinced of voluntariness was or was not convinced beyond a reasonable doubt. The extra margin of convincement assured by the reasonable-doubt standard is an elusive matter difficult to define. Compare Mc-Gill v. United States, 121 U.S.App.D.C. 179, 185, 348 F.2d 791, 797 (1965). Applying this standard is difficult enough at trial. The difficulty is enormously increased if the trial has long since been concluded and there is injected in the equation such imponderables as the lack of demeanor evidence of witnesses not now before the court, failure of recollection with the passage of time, inability to reconstruct the atmosphere of the trial. And, of course, a judge at a pre-Jackson trial would have had no occasion to make a particular note of the depth of his conclusion.
In considering whether this aspect of Jackson v. Denno should be applied retroactively, we cannot ignore the fact of the course of decisions in the District of Columbia which did not follow the Brarn forebear. Cf. Linkletter v. Walker, supra note 11, at 636 of 381 U.S., at 1741 of 85 S.Ct. It does not matter whether this was right or wrong under the non-constitutional doctrines then deemed applicable; whether it was due to the fact that Bram was overlooked, or was then regarded as a poorly considered opinion, whether perhaps the courts felt free to fashion a different common law rule for the District of Columbia treated as a state than the rule applicable in other federal courts. The fact remains that Bram’s reasonable doubt standard for judges was dormant at best and was not revitalized until Jackson v. Denno.
As the Supreme Court’s decisions make clear, the retroactivity issue is not a matter of absolutes. A balance must be struck in terms ci the degree of unfairness of what was done and the practical quagmires of correction. As the Court noted in Johnson v. State of New Jersey, supra note 11, at 729, of 384 U.S., 86 S.Ct. 1772, it is essentially concerned with a "matter of degree,” a “question of probabilities.”
In my view the overall interest of justice is achieved by ruling that this aspect of Jackson v. Denno — that the judge must be convinced of voluntariness beyond a reasonable doubt even where the issue is also submitted to the jury — is requisite for subsequent trials, but need not be accorded retrospective application.12
. In addition to Miranda and Malloy, noted in the text, see, e.g., Escobedo v. State of Illinois, 378 U.S. 478, 485-486, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Mapp v. Ohio, 367 U.S. 643, 656-657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
. Commonwealth v. Mayhew, 297 Ky. 172, 178 S.W.2d 928 (1943); State v. Wilson, 217 La. 470, 46 So.2d 738 (1950), aff’d per curiam, 341 U.S. 901, 71 S.Ct. 611, 95 L.Ed. 1341 (1951).
. See, e.g., Payne v. State of Arkansas, 356 U.S. 560, 567-568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); Blackburn v. State of Alabama, 361 U.S. 199, 210, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Haynes v. State of Washington, 373 U.S. 503, 518-520, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).
. E.g., Smith v. United States, 268 F.2d 416, 421 (9th Cir. 1959); Smith v. State, 189 Md. 596, 56 A.2d 818, 822 (1948); State v. Gidron, 211 S.C. 360, 45 S.E.2d 587 (1947).
. United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965); United States ex rel. Walden v. Pate, 350 F.2d 240, 243 (7th Cir. 1965), cert. denied, 384 U.S. 1018, 86 S.Ct. 1948, 16 L.Ed.2d 1041 (1966); Whiteside v. United States, 346 F.2d 500, 506 n. 2 (8th Cir. 1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1946, 16 L.Ed.2d 1025 (1966); Lopez v. State, 384 S.W.2d 345, 348 (Tex.Crim.App. 1964), a companion case remanded on the same date as Jackson v. Denno, see 378 U.S. 567, 84 S.Ct. 1924, 12 L.Ed.2d 1038 (1964).
. E.g., State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966).
. State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965), cert. denied, 384 U.S. 1017, 86 S.Ct. 1941, 16 L.Ed.2d 1039 (1966); State v. Keiser, 274 Minn. 265, 143 N.W.2d 75, 79 (1966).
. United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965); State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965).
. See State ex rel. Goodchild v. Burke, supra note 7, 133 N.W.2d at 763.
. Since my brethren agree that the reasonable doubt standard must govern the trial court in “orthodox” states, they obviously would ascribe no authoritative quality to People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68 (1965), cert. denied, 384 U.S. 1023, 86 S.Ct. 1951, 16 L.Ed.2d 1026 (1966), cited by the majority supra note 12. Rather, it illustrates how a few states have failed to come to grips with problems raised by Jackson v. Denno. This is an orthodox jurisdiction court that failed even to cite Jackson — and slipped into the indefensible result that in Illinois neither the court nor the jury is required to determine beyond a reasonable doubt that the confession is voluntary. This issue was not raised by the certiorari petition filed in Golson.
. See Johnson v. State of New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); McNerlin v. Denno, 378 U.S. 575, 84 S.Ct. 1933, 12 L.Ed.2d 104 (1964); Mitchell v. Stephens, 353 F.2d 129, 144 (8th Cir. 1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1966, 16 L.Ed.2d 1042 (1966); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283, 286 (1965).
. Compare Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Thornton v. United States, 125 U.S.App.D.C. -, 368 F.2d 822 (1966).