(dissenting):
I disagree with the majority’s holding that the “relator’s right to a public trial was violated” when the public was excluded during the Jackson v. Denno hearing on the relator’s motion to suppress his confession which was presented after his jury trial commenced.
The short answer to the stated holding is that the relator was accorded a full “public trial” on the issues presented by his motion to suppress his confession after it was denied by the state trial judge at the conclusion of the Jackson v. Denno hearing, and the jury trial was resumed upon the relator’s murder, aggravated robbery and conspiracy indictments.
At that time, the Commonwealth introduced into evidence the relator’s confession and presented testimony as to the circumstances prevailing at the time it was obtained. The relator chose not to take the stand and did not offer any rebuttal testimony on the score stated. The state record discloses that the trial judge painstakingly and fully instructed the jury in his charge that it was its duty to find whether the confession was truthful, and that it was to disregard it if it found it to have been involuntarily obtained even though it found it to be truthful.
Relator does not here challenge the trial judge’s charge in the respects stated, nor has he ever done so either in the various state proceedings or in the District Court.
Standing alone, the single factor that the relator was accorded a “public” trial on the issues presented by his motion to suppress his confession when they were presented to the jury, is fully disposi-tive of his contention that he was denied a “public” trial.
However, since the majority’s holding that a Jackson v. Denno hearing, conducted after a trial has begun, is a “part of the trial * * * and falls within the constitutional guarantee and must be conducted as a public trial,” sets a precedent, this must be said with respect to that holding:
Jackson v. Denno held that a defendant’s constitutional rights are violated when his challenged confession is introduced into evidence at his jury trial without prior judicial determination of voluntariness “in a proceeding separate and apart from the body trying guilt or innocence,” and that a confession found to be involuntary in such a proceeding is not to be submitted to the jury trying *612the defendant. 378 U.S. 368, 394, 395, 84 S.Ct. 1774, 1790.
While the vitality of what was said in Jackson v. Denno, with respect to prior determination of voluntariness “in a proceeding separate and apart from the body trying guilt or innocence”, seems to have been impaired by the statement in Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967) that “This Court has never ruled that all voluntariness hearings must be held outside the presence of the jury, regardless of the circumstances”, the Court in Pierce immediately thereafter said that “ * * because a disputed confession may be found involuntary and inadmissible by the judge, it would seem prudent to hold voluntariness hearings outside the presence of the jury.” 389 U.S. 32, 88 S.Ct. 193.
In Johnson v. United States, 390 F.2d 517 (9 Cir. 1968), where the Court held that a defendant was denied his right to a Jackson v. Denno hearing on the question of the voluntariness of his confession, the Court construed the Jackson, decision as requiring that such a hearing be “determined in a proceeding separate and apart from the body trying guilt or innocence.”
In doing so the Court said (p. 520):
“Jackson v. Denno, supra, holds, first, that a defendant has a ‘constitutional right at some stage of the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of vol-untariness * * (378 U.S. at 376-377, 84 S.Ct. at 1780.) It holds, second, that ‘the issue of * * * [the] confession should * * * have been determined in a proceeding separate and apart from the body trying guilt or innocence.’ (Id. at 394, 84 S.Ct. at 1790).” (emphasis supplied).
Neither the Jackson v. Denno decision nor its progeny afford any basis for the majority’s holding that a Jackson v. Denno hearing, when it takes place after a defendant’s criminal trial is under way, “is so much a part of the ‘trial’ that it is subject to the Sixth Amendment’s ‘public’ requirement.”
Nor can the majority’s stated holding be reconciled with its statements conceding that “A Jackson v. Denno hearing is in a sense preliminary to a trial”, and the “elements” of such a hearing “ * * tend to separate the Jackson v. Denno hearing from the trial itself.” (emphasis supplied).
The majority’s rigid application of the “public” trial requirement of the Sixth Amendment is at odds with the decided cases in the general fiejd which have not regarded it as inflexible and immutable as the laws of the Medes and Persians “which altereth not.” 1
On the latter score, it was only recently said of the requirement:
“The constitutional right to a public trial is not a limitless imperative.” Lacaze v. United States, 391 F.2d 516, 521 (5 Cir. 1968). (emphasis supplied). There, the judge had ordered the courtroom doors locked during one session of the trial, and there was no indication that the public had been barred “during the whole course of the trial.” In denying the defendant’s contention that he had been deprived of his constitutional right to a “public” trial, the court described it as “meritless and vacuous.”
Again, it has been held that the Sixth Amendment right to a “public” trial “is subject to the power of the judge to preserve the fairness * * * of a trial.”
In United States ex rel. Bruno v. Herold, 368 F.2d 187 (2 Cir. 1966), it was held (p. 188):
“The constitutional right to a public trial is subject to the power of the judge to preserve the fairness and orderliness of the proceedings of the court. United States ex rel. Orlando v. Fay, 350 F.2d 967 (2 Cir. 1965).” (emphasis supplied).
*613There, the action of the state trial judge in clearing the courtroom to avoid possible intimidation of witnesses was held to be “well within his discretion” and his power to preserve fairness and orderliness of the trial.
Here, the state judge acted well within the permissible scope of his inherent judicial discretion “to preserve the fairness” of the relator’s trial on his murder, robbery and conspiracy indictments, as well as within the authority of Pennsylvania Rule 323, when he accorded the relator a non-public hearing “separate and apart from the body trying his guilt or innocence” on relator’s motion to suppress his confession.
Jackson v. Denno lays down a “fairness” doctrine with respect to confessions. It announces “A constitutional rule * * * that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given”, Sims v. Georgia, 385 U.S. 538, 543-544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967), “in a proceeding separate and apart from the body trying guilt or innocence.” Jackson v. Denno, 378 U.S. 368, 394, 84 S.Ct. 1774, 1790.
In declared implementation of Jackson v. Denno, Pennsylvania has adopted a public policy of “fairness” which excludes all but “the defendant, counsel for the parties, court officers and necessary witnesses” from a Jackson v. Denno hearing. That public policy is given effect in Rule 323 of the Pennsylvania Criminal Procedural Rules, set forth in the margin.2 In excluding the general public from such a hearing, Pennsylvania goes one step further than the Jackson decision in apparent desire to further protect a defendant’s interests.
It has long been settled that a state “is free to regulate the procedure3 of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934).
Here, it cannot reasonably be said that Rule 232 of the Pennsylvania Criminal Procedural Rules “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”, particularly in the light of the teaching of Jackson v. Denno and its progeny.
This, too, must be said:
The majority has extracted an episode in isolation, viz., exclusion of the public during the Jackson-Denno hearing, as the premise of its holding that relator was denied a “public” trial. An appeal from a criminal conviction should not be turned into a safari for error which would defeat the ends of justice. Judicial enforcement of constitutional due *614process should be discriminatingly and clinically premised on the facts presented in a particular ease, and the context of the whole criminal trial under review, and not a fragmented isolated part of a trial.
Here, as earlier stated, the state trial record amply demonstrates that the relator was in fact granted a full public trial on the issue of the voluntariness of his confession when the jury trial was resumed following the conclusion of the Jackson v. Denno hearing. Further, the Jackson v. Denno hearing conducted by the state judge can scarcely be likened to the English Court of Star Chamber, the “secret trials” of the Spanish Inquisition, or the French monarchy’s abuse of lettre de cachet. In consonance with the provisions of Rule 323(c) (3), the Jackson v. Denno hearing in the instant case was attended by the defendant, his counsel, his witnesses, the State’s counsel and state witnesses, Court officers and the Court stenographer. The latter fully recorded the full hearing and filed a transcript of the testimony as part of the record of the relator’s criminal case.
It is pertinent here to note that the majority concedes that “the evident purpose of the rule [Rule 323] requiring the exclusion of the public from the hearing is to protect the defendant at the trial from the prejudice which might follow from public knowledge of the existence of a confession which has been ruled inadmissible.” (Emphasis supplied.)
It concludes, however, without saying so in terms, that Rule 323 is fundamentally prejudicial, in that it operates to deprive the defendant of certain “elements” of a public trial which it spells out as follows:
“A few of the basic elements in policy underlying the guarantee of a public trial affect the question before us. The searchlight of a trial open to the public serves as a restraint against the abuse of judicial power and also against possible perjury by witnesses who know that their testimony is exposed to public knowledge. Another element is that a public trial may lead, even accidentally, to the appearance of an important witness who, having heard the testimony, may come forward with relevant new evidence which may help the defendant.
“ * * * Thus the desirability of the public exposure of the claims and denials of coerced confessions, the policy that judicial proceedings be under the scrutiny of the general public in order to avoid judicial oppression and to discourage perjury, and the provision for the possibility that one who has valuable information might stray into the courtroom as a spectator and hear the proceeding, all are as relevant to a Jackson v. Denno hearing as to a full trial. From this conclusion it follows that such a hearing falls within the constitutional requirement that in criminal prosecutions all trials should be public.”
As to the first “element”, the “restraint * * * against possible perjury by witnesses”, it need only be said that the police witnesses as to the confession — and they were the only witnesses on the score of the relator’s confession — did testify at the jury trial after the state judge had denied the relator’s motion to suppress at the conclusion of the Jackson v. Denno hearing, and their testimony was “exposed to public knowledge.”
As to the second “element”, “ * * the possibility that one who has valuable information might stray into the courtroom as a spectator and hear the proceeding, * * * ”, this must be said:
The “possibility” that a “stray” spectator may have “valuable information” as to the circumstances prevailing when police obtain a defendant’s confession is so remote that it lacks ascertainable dimension and dwindles to the vanishing point. Judicial notice may be taken of *615the fact that police procedures in questioning suspects are pursued in restricted police quarters or in places inaccessible to the public. Given this circumstance, who might the hypothetical “stray” witness be?
Relevant and pertinent on the score of the foregoing, is this statement, in another context, by the revered late Mr. Justice Cardozo, in Snyder v. Massachusetts, supra:
“There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction • in obedience to local law, and set the guilty free.” 291 U.S. at page 122, 54 S.Ct. at page 338. (Emphasis supplied.)
There remains this to be said:
The majority has premised its vacation of the District Court’s Order denying the relator’s petition for a writ of habeas corpus on the grounds that the Sixth Amendment’s requirement of a “public” trial was violated because the relator’s Jackson v. Denno hearing was not “public”.
The majority has not reached the merits of the relator’s contention on this appeal that the District Court erred in finding that his confession was voluntary and that he had not been denied the assistance of counsel.
The record discloses that the District Court afforded a full hearing to the relator on these aspects of his appeal. It found against the relator in a carefully considered and exhaustive Opinion.
I would affirm the District Court’s Order denying the habeas corpus writ for the reasons so well stated in Judge Body’s Opinion.
Chief Judge HASTIE and Circuit Judge ALDISERT join in this dissent.
. Daniel, 6:8.
. The Pennsylvania Criminal Procedural Buies were promulgated by the Superior Court of Pennsylvania on March 15, 1965, as authorized by the Pennsylvania Act of July 11, 1957, P.L. 819. The Bules are reported at 417 Pa. XXIX et seq. Buie 323 is reported at 417 Pa. XXXI-XXXII. The Buies became effective September 15, 1965.
Buie 323 provides in relevant part:
“(c) When application for relief is made, a judge of the court shall:
“(1) Fix a time for hearing which may be either prior to or at trial * * *.
“(3) Hold a hearing in the presence of only the defendant, counsel for the parties, court officers and necessary witnesses for the purpose of determining, fully and independently, wheth- or not the confession was made voluntarily ;
“(4) Cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth his findings on issues of fact and his con-elusions as to whether the confession was made voluntarily, and enter an order granting or denying the relief; * # * tf
. Rule 323 is a procedural rule. It is pertinent to note that in Sims v. Georgia, 385 U.S. 538, 542, 87 S.Ct. 639, 17 L.Ed. 593 (1967), it was said that Jackson v. Denno, too, “set down” a “rule” “for the procedural determination of the voluntariness of a confession.”