Emanuel Pea, Jr. v. United States

On Rehearing En Banc

Before BAZELON, Chief Judge, and DANAHER, BURGER, WRIGHT, Mc-

GOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge:

On December 20, 1967, a division of this court found error in the District Court’s determination (made at 1966 Jackson v. Denno1 hearing held pursuant to the Supreme Court’s mandate),2 that appellant’s confession was voluntary. The division went on to rule that “it cannot fairly be found beyond a reasonable doubt that the confession was voluntary * * * [and] if that is the appropriate standard * * * a new trial must be held without introducing the confession in evidence.” En banc hearing was ordered by a majority of the active judges on their own motion to decide whether the reasonable doubt standard is the appropriate one.

In Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966), cert denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967), the court rejected the contention that in order to be admissible in evidence a confession must be found by the trial judge to be voluntary beyond a reasonable doubt. We overrule that pronouncement and, in the exercise of our supervisory power over the administration of federal criminal justice in the District of Columbia,3 adopt the rule that a judicial determination that a confession is-admissible cannot be made unless the judge is satisfied beyond a reasonable doubt that the confession was voluntary.4

The reasons which support our adoption of this rule have been set forth *638elsewhere,5 and it is unnecessary to dwell upon them. Normally, we recognize, courts are chary of imposing upon trial judges the burden of applying quantitative standards in determining whether proffered evidence is admissible. But there are some places in the law of evidence, outside the domain of confessions, where it has been thought appropriate that a trial judge should follow such an approach.6 Trial judges have certainly been required by a number of courts to determine voluntariness of a confession beyond a reasonable doubt7 as a necessary aspect of determining admissibility in evidence. We concur in that rule as a sound implementation of the public interest in preventing involuntary confessions from playing any part in a jury’s determination of guilt.8

Appellant’s case is here on direct appeal. The judgment is reversed and remanded with the instruction that appellant’s confession not be admitted in a new trial.

So ordered.

BURGER, Circuit Judge, with whom DANAHER, and TAMM, Circuit Judges join, dissenting:

I dissent for the reason stated in my opinion in Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966), cert, denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967), which, notwithstanding Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the majority now overrules with respect to the standard of proof governing the trial judge’s preliminary determi*639nation of voluntariness of a confession. There is no need to go beyond anything that was said in Clifton except to offer some general observations.

First, Jackson does no more than call for a procedure that will insure a “reliable determination on the voluntariness issue * * * ” Id. 378 U.S. at 387, 84 S.Ct. at 1786 (emphasis added). The Court stopped there in the face of Mr. Justice Black’s astringent dissent to the effect that the court failed to define the burden of proof by which the trial judge must initially determine voluntariness out of the jury’s presence. Id. at 404-405, 84 S.Ct. 1774. Thus neither in Jackson nor in more recent confession cases has the Supreme Court made any effort to spell out a standard as absolute as the one now adopted. One might well consider that the Supreme Court sub silentio decided against adopting the reasonable doubt standard by its own refusal to come to grips with the problem. Yet this court now — without waiting for a body of experience to develop under Jackson — elects to rush into an area the Supreme Court only four years ago deliberately avoided. It could have done this only because it was not prepared to prescribe a standard for admissibility of evidence which is barren of support in either logic or experience and for which there is not even a hint of demonstrated need.

It is indeed a remarkable anomaly in the law that a trial judge, in passing on the admissibility of a piece of evidence, do so by any particular quantitative standard. Why is it not sufficient that the trial judge be convinced that jurors could reasonably conclude the confession voluntary beyond a reasonable doubt? The jurors, not the judge, are the ultimate triers under our system. This is an elementary rule on the admissibility of an infinite variety of evidence and has been so for centuries.1

No other federal appellate court, with the single exception of one,2 has imposed the reasonable doubt standard in this context. All others have either avoided the problem entirely,3 or established some qualitative standard consistent with sound judicial experience and far less stringent than what we now adopt.4

The use of our supervisory powers to impose this unique and unwarranted burden of proof is a misconception of the purposes of our supervisory powers. As we noted in Clifton

[i]n the future trial judges will be evaluating only those utterances of an accused which have already passed through the whole gamut of screening *640processes outlined in McNabb, Mallory, Escobedo, Massiah, and Miranda. The prospects now are that trial judges, otherwise much overburdened, will not be overworked in passing on the voluntariness of the few confessions which will survive the application of these cases.

125 U.S.App.D.C. at 263, 371 F.2d at 360. Our extraordinary supervisory powers should be exercised only for overriding need, and in such cases we should not be concerned too much if we find we must break with tradition. But here, with the number of usable confessions dwindling to the vanishing point, the need is not present, let alone overriding. But in those few remaining cases to which it will apply, the consequences will be to make convictions of the obviously guilty yet more difficult to secure even when the accused has fully described the details of his criminal act in a confession which is capable of satisfying twelve jurors, beyond reasonable doubt, as to voluntariness. We now hold that one judge must usurp the historic role of the twelve jurors.

This case is but another manifestation in this court of a tendency — happily not widespread in appellate courts — to follow the Jerome Frank syndrome — a school of thought which profoundly mistrusts juries,5 and prefers fact finding by one judge whose conclusions can more readily be upset by appellate judges.

Since the Constitutional mandate for twelve jurors is explicit and cannot be directly evaded, this mistrust manifests itself in gradually chipping away at the jury function, requiring constantly increasing arrays of special instructions to fence in their discretion and multiple pretrial processes to restrict what jurors can safely be allowed to see and hear.

I think it is fair to say, again, that this is probably in part, at least, what Mr. Justice Black must have had in mind when in Jackson he pointedly said:

Finally, and even more important, the Court’s new constitutional doctrine [Jackson v. Denno] is, it seems to me, a strange one when we consider that both the United States Constitution and the New York Constitution (Art. 1, § 2) establish trial by jury of criminal charges as a bedrock safeguard of the people’s liberties. The reasons given by the Court for this downgrading of trial by jury appear to me to challenge the soundness of the Founders’ great faith in jury trials. Implicit in these constitutional requirements of jury trial is a belief that juries can be trusted to decide factual issues. Stating the obvious fact that “it is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant * * ante, p. 1786 (emphasis supplied), the Court concludes, however, that a jury’s finding on this question is tainted by inherent unreliability. In making this judgment about the unreliability of juries, the Court, I believe, overlooks the fact that the Constitution itself long ago made the decision that juries are to be trusted.

378 U.S. at 405, 84 S.Ct. at 1796 (Black, J., dissenting).

I consider that juries are to be trusted as much when they return verdicts of guilty as when they set an accused free. Jurors do not need judges to act.m loco ;parentis.

. 378 U.S. 571, 84 S.Ct. 1 (1964)1

. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964),

. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) ; Fisher v. United States, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382, 166 A.L.R. 1176 (1946) ; Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245 (1966).

. Whether this standard is also a constitutional requirement is now and may remain an academic question. Even a petition under 28 U.S.C. § 2255 could raise the question only by making a claim that prior to today’s decision the judge admitted a confession in evidence notwithstanding his reasonable doubt of voluntariness. There may not be any such cases. Any such § 2255 petition would be referred to the trial judge who admitted the confession in evidence (unless deceased or unavailable) and he would be in a position to clarify the matter.

. See Clifton v. United States, 125 U.S. App.D.C. 257, 263, 371 F.2d 354, 360 (1966), cert, denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967) (concurring opinion); United States v. Inman, 352 F.2d 954 (4th Cir. 1965); State v. Yough, 49 N.J. 587, 231 A.2d 598 (1967). The concurring Clifton opinion was also based, in the alternative, on constitutional grounds, and so perhaps was Inman, but it is not necessary to resolve the constitutional question in this case. See note 4 supra.

. E. g., Newton v. Richmond, 198 Va. 869, 96 S.E.2d 775 (1957) (blood test evidence in drunk driving prosecution); Hardeman v. State, 216 Miss. 115, 61 So.2d 797, 802 (1953) (dying declaration); Tucker v. State, Nev., 412 P.2d 970 (1966) (evidence of prior crime); see generally State v. Yough, supra note 5 and materials cited therein.

. Mullins v. United States, 382 F.2d 258 (4th Cir. 1967), reaffirming United States v. Inman, 352 F.2d 954 (4th Cir. 1965) ; Fernandez v. Beto, 3 Cr.L.Rep. 2005 (U.S.DistCt., N.D.Tex. March 6, 1968) ; State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966), cert, denied, 385 U.S. 1029, 87 S.Ct. 758, 17 L.Ed.2d 676 (1967); State v. Keiser, 274 Minn. 265, 143 N.W.2d 75 (1966); Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959); State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965); State v. Yough, 49 N.J. 587, 231 A.2d 598 (1967); People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); 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). See also United States v. Feinberg, 383 F.2d 60 (2d Cir. 1967), cert, denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968); Williams v. Beto, 386 F.2d 16 (5th Cir. 1967). In Feinberg, the court upheld a finding of voluntariness when there was no “credible possibility that his written statement * * * had been unconstitutionally coerced,” language denoting compliance with a reasonable doubt standard. 383 F.2d at 70. The court took occasion to detail the procedure prescribed by Inman, including the reasonable doubt standard, and to note that this was essentially the same as the New York procedure, without even hinting that it found the reasonable doubt standard questionable. 383 F.2d at 70 n. 10. In 'Williams, the court also referred with favor to the New York procedure including the requirement that the confession must be found voluntary by the court beyond a reasonable doubt. 386 F.2d at 18 n. 2.

. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (U.S. May 20, 1968); Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967) (per curiam) ; Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) ; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

. It is true, as the majority points out in note 6, that there are some rare instances where a quantitative standard has been imposed in passing on admissibility, such as dying declarations, but I suggest these cases do not reflect a majority rule, as was pointed out in State v. Tough, 49 N. J. 587, 231 A.2d 598 (1967). Moreover, I suggest that the majority say just how many “dying declarations” cases this court has had in the last one hundred years. To rely on that gossamer strand to support a rule of law is a confession of the utter bankruptcy of the concept the majority now adopts.

. Mullins v. United States, 382 F.2d 258 (4th Cir. 1967); United States v. Inman, 352 F.2d 954 (4th Cir. 1965).

. Kristiansand v. United States, 384 F.2d 301 (5th Cir. 1967) ; United States v. Taylor, 374 F.2d 753 (7th Cir. 1967) (citing Inman, however); Wakaksan v. United States, 367 F.2d 639 (8th Cir. 1966) , cert, denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967). The opinions in these cases, however, do not suggest whether the issue was raised or-briefed.

. United States v. Feinberg, 383 F.2d 60,. 70 (2d Cir. 1967), cert, denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968) (independent judicial determination) ; Fisher v. United States, 382 F.2d 31, 34 (5th Oir. 1967) (“clear cut determination” on the record); Moser v. United States, 381 F.2d 363 (9th Cir. 1967) , cert, denied, 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 850 (1968); Evans v. United States, 375 F.2d 355, 360 (8th Cir. 1967) (“unmistakable clarity”). In Feinberg and Williams v. Beto, 386 F.2d 16, 18 n. 2 (5th Cir. 1967), the court did refer to the New York procedure in which the trial judge makes a preliminary determination of voluntariness using the reasonable doubt standard.

. J. Frank, Courts on Trial 108-145 (1949).