(concurring).
I am in full agreement with the opinion of Judge Freedman in this case. However, I believe it is important to note another reason for concluding that a Jackson v. Denno hearing, whether held before or after the selection of a jury, is part of a public trial.
Where a Jackson v. Denno hearing is held, it is the only stage of the criminal proceeding in which the voluntariness of a confession may be constitutionally determined.1 The demands of due process are fully met when the trial judge initially and independently passes on the voluntariness of a confession regardless of the jury’s power in Pennsylvania to reconsider the issue in the trial proper.
Prior to the decision in Jackson v. Denno, most Pennsylvania courts and the courts of other states, as well as those of this circuit, 378 U.S. at 421, 84 S.Ct. 1774, followed the New York rule. Under this rule the trial judge simply decided whether there was sufficient evidence of coercion for the issue of voluntariness to go to the jury, and the jury alone then decided whether a confession was voluntary. Since Jackson v. Denno, Pennsylvania has adopted the Massachusetts rule where the issue of voluntariness is submitted to the jury, under proper instructions, if the trial judge has found the confession to be voluntary. Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625 (1966); Commonwealth v. Howard, 212 Pa.Super. 100, 239 A.2d 829 (1968).
In Jackson v. Denno, while approving the Massachusetts rule procedure, i. e., where both the judge and jury pass on voluntariness, the Court also approved the Orthodox rule, then followed in about twenty states, 378 U.S. at 411-412, 84 S.Ct. 1774 under which the trial judge alone finally decides the issue of voluntariness before the confession is admitted into evidence, and the question of voluntariness is not submitted to the jury at all. 378 U.S. at 378-379, 84 S.Ct. 1774. This indicates that it is the judge’s determination of voluntariness, *610and not that of the jury, which meets the crucial test of whether due process has been afforded. In his dissenting and concurring opinion in Jackson, Justice Black recognized that this is the effect of the majority opinion:
[T]he Constitution now requires the judge to make this finding, and the jury’s power to pass on volun-tariness is a mere matter of grace, not something constitutionally required. (Emphasis added.) 378 U.S. at 404, 84 S.Ct. at 1795.
Thus, even where the Massachusetts rule is followed, Jackson v. Denno teaches that due process is satisfied by the trial judge’s initial, independent determination of voluntariness. 378 U.S. at 378 n. 8, 84 S.Ct. 1774. In Jackson, where the Court held the New York rule procedure constitutionally deficient, the case was remanded to the New York courts only for the purpose of holding an evidentiary hearing by a judge on the issue of voluntariness. In this regard, the Court said:
But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. 378 U.S. at 394, 84 S.Ct. at 1790. (Emphasis added.)
The sole reliance on the trial judge’s determination of voluntariness to comply with the requirements of the Constitution follows from the Supreme Court’s expressed awareness that limiting instructions directing a jury to disregard certain kinds of evidence (such as coerced confessions or accomplices’ confessions received without benefit of confrontation) are wholly ineffective in removing the prejudicial impact of improperly received evidence. See Jackson v. Denno and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court stated that Jackson “expressly rejected the proposition that a jury, when determining the confessor’s guilt, could be relied upon to ignore his confession of guilt should it find the confession involuntary.” Id. at 129, 88 S.Ct. at 1624.
It appears, therefore, that in Jackson the Court replaced the questionable safeguard of limiting instructions with the requirement of an independent determination of voluntariness by the trial judge as the standard for deciding whether due process has been met in coerced confession cases. Consequently, in jurisdictions such as Pennsylvania which adhere to the Massachusetts rule, the Jackson v. Denno hearing, being the only constitutional requisite for determining volun-tariness, is considerably more important than the later proceedings before the jury on the same issue.
In view of the foregoing, I believe it is quite clear that the Jackson v. Denno hearing is an integral part of defendant’s overall trial where the voluntariness of a confession is in issue. As such, it falls within the public trial guarantee of the Sixth Amendment.
The fact that the Jackson v. Denno hearing is separate and apart from the trial before the jury is not significant as it is part of the entire judicial proceeding involving the determination of the defendant’s innocence or guilt. The public trial guarantee of the Sixth Amendment was established at a time when there was obviously no separate Jackson v. Denno hearing on voluntariness. In his concurring opinion in Estes v. Texas, 381 U.S. 532, 564, 85 S.Ct. *6111628, 1643, 14 L.Ed.2d 543 (1965),2 Chief Justice Warren said:
For the Constitution to have vitality, this Court must be able to apply its principles to situations that may not have been foreseen at the time those principles were adopted. * * *
* * * “In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.” * * *
In deciding this case we must mold present criminal procedures into the established constitutional labels. In so doing the Jackson v. Denno hearing fits squarely within the concept of a public trial.
. In Marion v. Beto, 302 F.Supp. 913, 917 (N.D.Tex.1969), the court said:
Essentially, all that is constitutionally required is that the trial Court make an independent determination of volun-tariness before submitting the confession to the jury for consideration. There appears to be no constitutional requirement in Jackson v. Denno for a further submission to the jury.
The Second Circuit, In United States v. Anderson, 394 F.2d 743, 747 (1968), stated:
The trial court held a hearing in the absence of the jury, screened the statements and made the critical determination that the admissions were voluntarily made. Defendant contends that the judge should have taken the second step by following the Massachusetts procedure of submitting the volun-tariness issue to the jury. We find no constitutional requirement in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), for a further submission to the jury. * * *
. Estes v. Texas dealt in part with a two-day “pre-trial” hearing, broadly televised and broadcast, which was held to determine whether live television and radio coverage should be permitted at the trial proper. The Court held that this preliminary heaving was an integral part of the overall proceeding in determining whether the distractions of live coverage prevented the defendant from receiving a fair trial. 381 U.S. at 536, 537, 85 S. Ct. 1628.