(dissenting) :
With all respect, the impressions I get from the record differ from those of the majority. The Government’s case at trial depended almost exclusively on appellant’s confession to the police; and it is around this confession that the two major issues on this appeal revolve. First, I am unpersuaded by the majority’s primary ground for reversal, namely, that the trial judge erred in finding the confession to be voluntary and admissible. Second, I am unable to accept appellant’s contention that the failure to bring to the jury’s attention all the circumstances surrounding the confession constituted reversible error.
*568I
Pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), a pretrial hearing was held on the voluntariness of appellant’s confession. Since all events surrounding the making of that final confession, including the three prior implicating statements, are relevant to the determination of its admissibility, it is necessary fully to review the 300-page pretrial transcript.1
A forty-year-old female employee of St. Elizabeths Hospital was brutally murdered on the morning of May 30, 1967. The body was found on a creek bed adjacent to the hospital grounds. Four detectives from the Metropolitan Police Department’s Homicide Division launched an investigation, and, operating on the theory that the crime had been committed by either a present or former male patient at the hospital, they began to interview patients residing on the wards nearest the scene of the killing. During the first week of the investigation well over one hundred patients were questioned. Sergeant Preston, one of the detectives, had personally interviewed twenty-seven patients before his interview with appellant. At the end of that week the police had four or five prime suspects, among whom were the decedent’s boy friend, and a patient who had recently eloped from the hospital and who had committed a similar crime in the past.
On the morning of June 5, a detective with the Park Police reported to the Homicide Division his recollection that a patient then in the hospital had been committed several years before after a verdict of not guilty by reason of insanity in a rape case in which the modus opemndi was similar. Officer Preston attempted to familiarize himself with the facts of that case — known as the Fort Dupont case — but since the file was not then available, he read only the arrest sheet from which he was able to obtain a “sketchy” view of the facts.2 Later that morning, he and two other police officers interviewed appellant for the first time. Sergeant Preston testified that before this initial meeting he did not view appellant as a serious suspect, both because “there were many patients with histories of similar types of assaults on file,” and because the supervising doctor on appellant’s ward related to the officers that she was certain that he could not have been out on the grounds on the morning in question.
The interview, conducted in a clerical office on the ward, lasted a little more than thirty minutes. The officers stated their purpose, no warnings were given, and appellant appeared calm and spoke freely. It was during this interview that Officer Preston “bluffed” appellant into his first implicating statement indicating that he might have been in the area of the crime on the morning of the 30th. It was also at this time that Officer Preston inquired about the scratch marks on appellant’s arms, which he explained away as the result of an accident while hanging a basketball goal at his girl friend’s home. Officer Preston testified that he could not give very serious weight to the scratches since his idea, that there may have been a struggle in *569which the assailant was scratched, was “pure theory.”
The majority finds that this interview was a custodial interrogation within Miranda, and that the inculpatory statement was inadmissible because no warnings were given and no waiver obtained. I disagree. The Supreme Court in Miranda made clear that its holding was “not intended to hamper the traditional function of police officers in investigating crime,” and that “[gjeneral on-the-scene questioning * * * of citizens in the fact-finding process”3 could be carried on without the cautionary warnings. Field interviews of the type involved in this case in which numerous persons are interviewed, all of whom may be said to be suspects but none of whom are viewed by the investigators as serious suspects because the investigation has failed to provide a basis for the focusing of peculiar attention on the persons inteviewed, do not present the compelling atmosphere of police domination and of significant restraint over the freedom of the individual that requires the protections of the prefatory warnings.
The contours of “custodial interrogation” are not sharply defined, and in cases of this nature there is no litmus paper test for determining when the warnings are required. This court has stated the problem in these terms:
“Whether police have left the channel of ‘investigation’ and run onto the shoals of ‘custodial interrogation’ cannot be determined by reference to some chart clearly designating the various lights, bells, buoys and other channel markers. * * * We think the relative routineness of an inquiry is a material indicator that the police are still in a state of investigation. The police talk to too many people in the course of a day to make warnings compulsory every time they inquire into a situation. Such a requirement would hamper and perhaps demean routine police investigation. * * * ”
Allen v. United States, 129 U.S.App.D.C. 61, 63-64, 390 F.2d 476, 478-479, supp. opinion, 131 U.S.App.D.C. 358, 404 F.2d 1335 (1968). This is a matter that must be handled on a case-by-case basis looking at all the relevant factors surrounding the interview, including “the relative routineness of [the], inquiry,” 4 the degree to which the investigation has “focused” on the accused,5 the “atmosphere” of the interview,6 and the quantum of restraint exercised over the interviewee’s freedom of movement.7 Viewing these factors in the light of this record, I do not find here the in-custody interrogation that would invoke Miranda.
*570This is not to say, however, that the implicating statement might not be involuntary irrespective of Miranda. Police trickery eliciting incriminating statements is not to be condoned at any stage of investigation. Tactics of this sort were among the practices deplored in Miranda. Yet the Supreme Court has never adopted an exclusionary rule for confessions occasioned by such tactics.8 Last Term that Court, in Frazier v. Cupp, 394 U.S. 731, 737-739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), held a confession admissible despite the fact that police trickery during the interrogation contributed to the making of the statement. It has long been the practice of the federal courts in pre-Miranda cases, and I assume now in post-Miranda noncustodial interrogation cases, to ascertain the voluntariness of an admission by examining all the circumstances surrounding the statement, according to no single factor the exclusionary effect that would obviate consideration of the totality of circumstances.9 It is unnecessary, however, for this court to decide whether this first statement by appellant was voluntary and admissible, since no attempt was made by the Government to place that statement before the jury. The questionable voluntariness of this initial admission is only one of the factors that the court should weigh in evaluating the voluntariness of the formal confession that was introduced.10
*571Following this initial interview, Sergeant Preston talked to one of the attendants who appellant admitted had seen him on the morning of the crime, and ascertained that appellant had been seen in the general vicinity, although the time did not square with the time the officers thought the murder had taken place.11 That afternoon the officers again interviewed appellant, this time for about two hours, in an effort to learn more about his activities on the 30th and to find out whether, if he was not personally involved, he might have seen someone else in the vicinity that morning. The same officers were present; appellant indicated no reluctance to speak; and he did not appear anxious or nervous.
The officers told appellant that he was free to leave at any time and that he did not have to talk to them. Appellant spoke freely about his hostility toward women, the Fort Dupont case, and the source of his scratches. At the conclusion of the interview, no arrest was made because, as Officer Preston testified, appellant had told him nothing upon which he felt he could base an arrest. The interviews with appellant occasioned no change in the course of the wider investigation. Four officers continued to interview patients for several more days, and Officer Preston talked to three more patients before he was taken off the ease two days later.
On June 6 appellant was transferred to the maximum security ward. The hospital personnel testified that this was occasioned by his possible involvement in the unsolved crime and by the knowledge, gained from his interviews with the police, that he had been violating his open-ward privilege by leaving the grounds. There is no testimony that the police had requested the hospital to return appellant to maximum security rather than arresting him, or that, but for his recommitment, an arrest would have been made. Indeed, there is no indication that Officer Preston talked to any hospital officials about appellant between the end of the second interview on June 5, and June 7, when he and other police officers spoke to Dr. Owens. Officer Preston testified that he was well aware that a number of patients on the open wards were “wandering about the neighborhood * * * off the grounds.” Indeed, appellant told the officers that he often left the grounds to see his sister or his girl friend. Certainly if Sergeant Preston had felt that he had probable cause to believe that appellant had committed this murder he would have made an arrest at that time or made explicit provision for his immediate incarceration at the hospital.
Nevertheless, the majority appears to assume that probable cause to arrest did exist at this juncture, and that appellant should have been taken before a magistrate in compliance with Rule 5(a) Fed. R.Crim.P. Again, I must disagree. Whether probable cause to arrest exists is often a close question requiring the exercise of judgment. The sanction of the exclusionary rule dictates caution in cases such as this in which the question is not free from doubt. This record does not, as I read it, tell a story of police officers, with a purpose to prolong opportunities for improper investigation, deliberately delaying arrest and presentment of a suspect whom they were reasonably certain was the man responsible for the slaying.12
*572During the five-day interval between June 5 and the confession to Dr. Blum on June 10, a number of events occurred which are relevant to the voluntariness issue. Appellant was returned to maximum security on the 6th; Dr. Owens talked to the police about appellant on the 7th; pictures were taken of his scratches on the 7th; and on the 8th Dr. Owens talked to appellant and suggested that he submit to a truth serum test to clear himself of suspicion (a suggestion he rejected). Then, on June 10, appellant requested one of the attendants to call his psychologist, Dr. Blum, at home and ask that he come to the hospital to talk to him. When Dr. Blum arrived, appellant immediately told him the entire story. He was in a very emotional state and was crying profusely. Dr. Blum testified at length about why appellant told him of his crime:
“I felt that he had no other recourse but he had to tell me. It was more of a compelling kind of thing, there, then, that he had to tell me.
•* * *• * *
So he was, I mean, excited, I think, by a lot that was going on within him.
-* * * * * *
[TJhere was a gush of feeling, that accompanied this, which never accompanied anything else he has talked about, so, I assume that there was some inner turmoil which prompted this man to tell me about this.” (Emphasis supplied).
In spite of these repeated and uncon-troverted assertions that the confession was the result of some “compelling need” or “inner turmoil,” the majority finds that the confession was instead the product of the pressure of all the events that preceded it — the trickery, the interviews, the recommitment to maximum security, and the suggestion of a truth serum test. Nowhere in the record is this conclusion suggested. Neither appellant nor Dr. Blum ever indicated that any mounting pressure of events or continued focusing compelled him to give in or weakened his will. Contrarily, all the testimony supports the Government’s summation at the pretrial hearing that “[t]he stimuli for these confessions * * * are his own internal consciousness, perhaps his guilt, his remorse, whatever it is that operates in a human being after a crime of this kind has been committed.” On this record I am unable to ascribe error to the trial judge’s finding that this confession to Dr. Blum was voluntary.
After confessing to Dr. Blum, appellant sought his advice and was counseled to make a “clean breast of it” and tell his story to the director of the maximum security ward. Pursuant to that advice, an interview was scheduled for the 12th of June with Dr. Owens. At that time appellant repeated his confession. The trial court also found this confession voluntary but did not make findings resolving either the dispute in the testimony between Doctors Owens and Blum whether the warnings preceded or followed appellant’s confession, or the dispute whether the warning given stipulated that whatever appellant said might be used against him.13 Since, as with the Blum confession, we do not have a custodial interrogation situation, any inquiry about formal warnings goes only to the voluntariness question.
Now we reach the confession used by the Government at trial. At the conclusion of the confession to Dr. Owens, ap*573pellant was asked whether he wished to tell his story to the police. He said he did, and the officers were called in. The following evidence was adduced regarding the admissibility of this confession. It was preceded by the full warnings from the police and several admonitions by Dr. Owens that he could have an attorney if he desired one. Appellant indicated that he understood his rights and did not desire an attorney.14 Having had a rather extended history of contact with the law and the judicial process,15 appellant could appreciate the function of the policemen and that his confession would have serious consequences. There was testimony that appellant probably did not anticipate that he would be removed from the hospital to serve a prison term but thought that he “would be at St. Eliza-beths for the rest of his life.” Since appellant only a few days earlier had before him the prospect of unconditional release, he cannot have failed to appreciate that his confession would have a significant impact on his future.16
The record also leaves little question about appellant’s capacity or competence to make a voluntary confession. Both doctors testified unequivocally that he was competent, and it appears clear from the evidence of his long career at the hospital that, whatever delusions or emotional instability triggered his violent hatred for women, they did not impair his ability to comprehend his circumstances and to understand the serious consequences of his confession.17
The background of this confession has been examined at some length because I believe, as does the majority, that the mere incantation of the appropriate cau*574tionary phrases demanded by Miranda, coupled with an intelligent waiver, should not dictate, by themselves, a conclusion that the confession obtained was freely and voluntarily given. While the failure to give the warnings requires automatic exclusion, the giving of the warnings does not prevent the trial judge from independently considering whether the confession was voluntary by reference to the totality of circumstances. It is especially mandatory in cases like the one before us, in which much of the investigation takes place prior to any stage that could be called “in-custody interrogation,” that such a review apart from Miranda be undertaken. In the ordinary case the same factors that would lead to a finding of involuntariness may well compel a finding that the waiver under Miranda was not freely and intelligently given, and in those cases no separate consideration of voluntariness may be required. However, when cases arise like this one, neither the sufficiency of the warnings nor the definiteness of the waiver should preclude examination of the question whether the underlying admission was voluntary.18
Viewing the confession admitted against appellant in the totality of the circumstances exposed by the pretrial hearing record, I am unable to conclude that the trial judge’s findings on volun-tariness were clearly erroneous.19
II
The court having found the confession voluntary, it was properly introduced by idle Government at trial. There is now some confusion regarding the standard that should have been applied by the jury in considering this confession. The rule established in 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), and reaffirmed in Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627 (1968), is that the jury must find the confession voluntary beyond a reasonable doubt before it may be considered as evidence of guilt. The trial judge here only instructed the jury that they must decide whether the confession was freely and voluntarily given, without stipulating that its finding must be beyond a reasonable doubt. The judge did, however, instruct that guilt must be found beyond a reasonable doubt, and that each element of the offense must also be found beyond a reasonable doubt. Although this is not the preferred method for framing the voluntariness instruction, Clifton indicates that, in cases in which the confession is the central element, this instruction would not create reversible error:
“In his charge to the jury * * * the District Judge did not specifically single out the confession, apart from the other evidence, and define the standard applicable to it. We note, however, that the confession was in fact the essence of the Government’s case. The Judge instructed the jury that the Government had the burden of proving beyond a reasonable doubt *575that the defendant was guilty and had committed every element of the offense charged. It does not seem possible to us that the jury would have failed to understand that in order to convict they must believe beyond a reasonable doubt both its voluntariness and its substance, i. e., the truth of the facts recited in the confession.” 20
The requirement of determination of voluntariness by the jury is one aspect of the two-step procedure under the Clifton-Pea rule which requires that both the judge and the jury make separate findings of voluntariness beyond a reasonable doubt before a confession may be considered as evidence in the case. This is an application of the Massachusetts Rule recognized in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), as one of the constitutionally acceptable procedures for handling confessions at the trial court level.
Jackson v. Denno also sanctioned another approach, known as the Orthodox or Wigmore Rule, under which, once the judge makes the preliminary finding of voluntariness, the jury does not make another independent finding on that issue. Under this procedure, the jury only hears evidence on the circumstances surrounding the confession to aid it in determining the weight or credibility of the confession. Insofar as the jury believes a confession to have been involuntarily given, possibly as the result of threats, promises, or trickery, it might question the truthfulness of the statement and discount its weight. The central difference between the two approaches as far as the jury is concerned is that under the former the jury must find the confession voluntary before passing on its credibility, while under the latter the jury is not called on to consider separately the voluntariness of the confession.
Congress, in enacting Title II of the Omnibus Crime Control and Safe Streets Act (effective June 19, 1968),21 appears to have prescribed the Orthodox Rule as the procedure to be used by all federal and District of Columbia courts. The trial judge is instructed to hold a Jackson v. Denno-type hearing to determine voluntariness. If he finds a confession to be voluntary, it is admissible, as is also evidence bearing on its voluntariness. The judge is to instruct the jury to give the confession such weight as it feels the confession deserves under all the circumstances. This is the classic division of responsibility between judge and jury under the Orthodox practice: the judge determines voluntariness or competence, while the jury assesses weight or credibility. There does not appear to be any constitutional impediment to Congress’s adoption of this procedure since it represents one of two procedures approved by Jackson v. Den-no and will bring uniformity to an area that has heretofore been the subject of disparate treatment by the federal circuits.22
Neither the parties nor the trial judge seem to have been relying on this statute, even though the trial occurred eight months after its effective date. Instead, they continued to apply a standard more favorable to the accused, requiring a jury determination of voluntariness before it could consider the weight to be accorded the confession. Since the Clifton-Pea Rule, and the instruction that voluntariness must be found beyond a reasonable doubt, affords the accused a second chance not offered by the statutory procedure,23 we cannot reverse on *576the ground that appellant was prejudiced by the trial judge’s failure to give the less favorable instruction that the jury should “give such weight to the confession as the jury feels it deserves under all the circumstances.”
There is, however, one further problem. Under either rule, evidence of the events surrounding the confession is relevant to a determination either of volun-tariness (under the Clif ton-Pea approach) or in evaluating the weight to be given (under the Orthodox-Section 3501 (a) procedure).24 At trial, however, most of the evidence bearing on volun-tariness heard at the suppression hearing was not reintroduced. The Government introduced only the formal confession made to the police officers on June 12, along with evidence of the circumstances immediately surrounding that confession. None of the evidence of the events of the preceding week, including the three prior admissions, was adduced before the jury by either side. Appellant now contends that, since the jury was required to make a finding on volun-tariness, it was the duty of either the defense counsel or the trial judge to assure that all the testimony relevant to that jury determination was introduced. Appellant’s conclusion is that this failure constitutes plain error requiring reversal under Fed.R.Crim.P. 52(b).
Because, as will be demonstrated herein, our two-step procedure for evaluating confessions does not command the complete re-presentation at trial of all the evidence on voluntariness, I can find no reversible error in this case so long as it appears that (1) defense counsel was aware that his unsuccessful attack on the admissibility of the confession at the pretrial stage in no manner precluded him from introducing favorable evidence on the voluntariness issue at trial, and (2) his failure to do so was in all likelihood a conscious and reasoned one. Both counsel’s awareness of alternatives and the presence of a defensible tactical basis do appear here.
In order to demonstrate conclusively that no reversible error exists, the case on voluntariness at trial must be examined from two points of view: (1) where the evidence would have been considered by the jury on the preliminary issue of voluntariness as well as on the question of reliability, and (2) where the evidence would only have been relevant to determining credibilty. The first then is an examination of the case as it was handled by the trial judge (using the Clifton-Pea procedure) and the second is an examination of the case as it should have been handled if the statutory rule had been followed.
Even where the jury is required to make a finding on voluntariness, it was never contemplated that the trial would be a complete duplication of the evidence heard by the judge at the pretrial hearing. Indeed, one of the primary reasons for having a preliminary determination out of the presence of the jury is to assure that all the evidence on voluntariness will be heard by one trier of fact without the risk that such evidence would prejudice some substantive issue in the case. This is one of the reasons underlying the holding in Jackson v. Denno, and Judge Leventhal’s opinion in Clifton,25 that it is the pretrial determination by the judge that is the ultimate in terms of constitutional significance rather than the subsequent redetermination by the jury. As Judge Leventhal *577has pointed out, probably the clearest example of this disparity in evidentiary presentation is the testimony of the defendant himself:
“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 [elicited through impeachment on cross-examination].” 26
This case is an example of that disparity. Defense counsel asked appellant to testify at the pretrial hearing in an unsuccessful effort to persuade the trial judge that his confession was the product of merely following his psychologist’s and the hospital's orders rather than the result of a voluntary decision on his part. Whatever defense counsel’s reasons for not wishing to subject appellant to cross-examination and impeachment at trial, there would seem to be no question of his right to remain silent and forego the opportunity to present .that voluntariness theory to the jury.
Turning to other pretrial testimony that was not duplicated before the jury, it becomes apparent that there are defensible tactical reasons explaining why there was “more evidence before the court than before the jury.” For instance, defense counsel introduced Dr. Blum’s testimony regarding the June 10 confession at the pretrial hearing but not at trial. Since it was this testimony which convinced the trial judge that the confession was the result of an “inner turmoil” or something “within him,” I cannot say that there is no tactical basis for a decision not to reintroduce that damaging testimony. Likewise, had the defense introduced the testimony regarding the Blum and Owens confessions, the Government surely would have given greater emphasis to the doctors’ conclusions that appellant was mentally competent to make those confessions and to waive his Miranda rights.27 Not only might their testimony have failed to bolster the involuntariness claim, but it might well have also prejudiced the insanity defense. Can we say that defense counsel lacked judgment if he concluded that the jury might be unable or unwilling to differentiate between the mental-disease-or-defect issue, on the one hand, and the competency-to-confess issue, on the other? Might not defense counsel have feared the jury’s speculating, once it learned that it was uncontroverted that appellant was competent to confess on June 10 and 12, that he was not insane two weeks before when he committed the act ? Good trial lawyers are separated from bad in their alertness to such considerations as these.
*578Furthermore, defense counsel must have considered what impact or cumulative effect the introduction of four confessions rather than one would have had on the jury. Jackson v. Denno emphasizes that one of the reasons why due process requires an independent determination of voluntariness by the judge is the practical knowledge that jurors often fail to distinguish between reliability and voluntariness, i. e., the stronger the certainty that the confession is truthful, the less sympathy the jury is likely to have for the involuntariness claim.
“The jury * * * may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession * * *. That a trustworthy confession must also be voluntary if it is to be used at all, generates natural and potent pressure to find it voluntary. Otherwise the guilty defendant goes free.”28
Defense counsel could well have weighed his case on voluntariness against these factors of cumulative and negative impact — both on the voluntariness and insanity defenses — and reasonably have concluded not to renew this issue.
Certainly his judgmental decision, even if proven by the subsequent outcome to have been erroneous, falls far short of the ineffective representation that could be said to have deprived appellant of a fair trial. The effectiveness of counsel is not, in any event, to be measured by his success. This court, in reviewing its standards for effective assistance of counsel, has made clear that
“[m]ere errors of judgment as disclosed by subsequent events are not sufficient to establish ineffective assistance of counsel. Nor is it the function of the court ‘to evaluate the relative efficacy of trial tactics.’ ”29
It should be clear both that Jackson v. Denno and Clifton never contemplated an invariable duplication of evidence at trial, and that there does exist in this case a substantial tactical basis for defense counsel’s decision.
Despite the presence of this tactical basis for a decision not to pursue the voluntariness issue before the jury, I would be reluctant to rely on the existence of these considerations if I were not convinced on this record that defense counsel was well aware of his opportunity to re-open the voluntariness question at trial and, therefore, must have considered these factors. The record does impress me as supporting the proposition that defense counsel was fully cognizant of the precedents establishing the two-step procedure followed heretofore in this jurisdiction. At the suppression hearing, counsel cited the landmark case of Jackson v. Denno. Indeed, counsel referred to it three times. Also, during the course of his argument to the court at the conclusion of the suppression hearing, counsel four times referred to our rule that voluntariness must be found beyond a reasonable doubt. For instance, in his final remarks he argued that the “statements made to the police were not voluntarily given beyond a reasonable doubt, which is the standard adopted in this jurisdiction.” He, therefore, must have been familiar with our decision in Pea which established this standard. It defies belief that defense counsel could have been acquainted with these two precedents and not have known that an unsuccessful attack on voluntariness before the judge would not bar representation of that defense before the jury.
Again, the transcript indicates that he was aware that the issue of voluntariness was to be submitted to the jury, and that the jury would be instructed to make a finding on that issue. Two days before the jury instructions were given, the judge asked the parties what instruc*579tions they would request, and defense counsel, after discussing the need for insanity and manslaughter instructions, stated: “Of course the Court will give an instruction on confessions and volun-tariness. * * * ” After the instructions had been given to the jury, defense counsel objected to the form of the vol-untariness instruction on Miranda grounds (and persuaded the court to alter its instruction), but at no time did he indicate any surprise that the jury was being asked to make a separate finding that the confession was voluntary. The transcript most convincingly establishes that defense counsel’s failure to pursue the voluntariness issue at trial could not have been the product of ignorance of the procedure followed in this jurisdiction.
Furthermore, under these circumstances I am unable to accept appellant’s argument faulting the trial judge for not demanding that the evidence be introduced. If this were a case in which it should have been apparent to the trial judge that appellant’s court-appointed counsel was unaware of controlling precedents and established procedures, there would be merit to a suggestion that responsible trial judges should inquire into the underlying assumptions of defense’s trial strategy. Where, however, it is clear to the judge, as it must have been here, that defense counsel is cognizant of pertinent legal principles, no such duty of inquiry exists, and there can be no reversible error derived from the failure of the transcript to reflect a court-counsel colloquy.
There is even less ground for error under Section 3501(a). Although that Section contemplates the introduction of evidence of voluntariness, it is clear that its sole purpose is to assist the jury in determining weight or credibility, which is the only issue the jury is called upon to decide under the statute. As Justice White explained in Jackson v. Denno:
“[T]he evidence surrounding the making of a confession bears on its credibility [and] is presented to the jury under the orthodox rule not on the issue of voluntariness or competency of the confession, but on the issue of its weight.” 30
A jury under the Statutory-Orthodox procedure may review evidence, such as the existence of threats, coercion, or promises, and conclude that the confession is of questionable reliability. What evidence could defense counsel in this case have introduced that might have provided a basis for discounting the truthfulness of this confession? There simply is no ground for urging its un-trustworthiness. Acquainting the jury with the entire chain of admissions, running from the June 5th interviews to the formal confession one week later, would only have certified its reliability.31
Appellant has also argued that he was prejudiced in the preparation of his insanity defense due to the delay in appointment of counsel. Ordinarily, a delay of seven months would raise serious questions about a defendant’s ability to prepare his insanity defense. Here, however, appellant was incarcerated in St. Elizabeths under psychiatric care both before and after the commission of the crime. The record is replete with medical testimony regarding his mental status and the delusions underlying his violent act. Under these special circumstances, I do not believe appellant was seriously prejudiced.
. /See, e. g., Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967).
. At no point in the transcript are these asserted similarities between the two cases identified in detail. Indeed, while the Fort Dupont case led to a charge of forcible rape, the police reports and autopsy in this case negate any possibility of sexual molestation. The prosecution’s version of the Fort Dupont case, as recounted by Dr. Blum, was that appellant clandestinely witnessed a woman having intercourse in the park. After the couple separated, appellant asked the woman to have relations with him. She refused and he raped her. Appellant’s account of those events, as retold by one of the doctors who participated in the examination upon appellant’s initial commitment in 1965, was that the woman, after agreeing to have intercourse with him, demanded payment. When appellant refused to pay, she accused him of raping her.
. Miranda v. Arizona, 384 U.S. 436, 477-478, 481, 86 S.Ct. 1602, 1629, 6 L.Ed.2d 694 (1966).
. 129 U.S.App.D.C. at 64, 390 F.2d at 479.
. The concern with focusing is a carryover from Escobedo v. Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964), which held that Sixth Amendment rights arise when “the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular subject.” A somewhat unclear footnote in Miranda indicates this concept was considered to be synonymous with the test for custodial interrogation. 384 U.S. at 444 n. 4, 86 S.Ct. 1602. It is generally agreed among the circuits, however, that while focus is a relevant consideration, it is not, by itself, a conclusive test. See, e. g., United States v. Hall, 421 F.2d 540, 543 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970); United States v. Gibson, 392 F.2d 373, 375-376 (4th Cir. 1968).
. The majority opinion in Miranda discusses at length the degree to which the atmosphere of the stationhouse interrogation itself compels incrimination. For a good discussion of the “atmosphere” and “focusing” elements of the custodial interrogation concept, see Comment, The Early Warning System in Criminal Tax Investigations, 118 U.Pa.L.Rev. 795, 800-802 (1970).
. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (the accused may be in custody for purposes of Miranda even in his own home under some circumstances).
. Rogers v. Richmond, 365 U.S. 534, 541-545, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), is instructive in this regard. There the Supreme Court held that, if a trick or deception occasions an involuntary statement, that statement may not be admitted merely on the reasoning that despite the trickery it is nonetheless true and reliable. Due process, held the Court, demands that the determination of voluntariness must be made without reference to reliability or credibility. It is clear, however, that the Court did not hold that the fact that a confession was obtained by deception rendered it ipso facto involuntary.
. See, e. g., Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).
. The majority relies on Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), for the proposition that the implicating statement by appellant to Officer Preston is inadmissible because it was given in response to an accusation by a police officer. The Supreme Court was, however, careful to preface its holding with the following statements:
“[A]II the decided eases necessarily rest upon the state of facts which existed in the particular case, and, therefore furnish no certain criterion, since the conclusion that a given state of fact was adequate to have produced an involuntary confession does not establish that the same result has been created by a different although somewhat similar condition of fact. * *
[Tjhere [is] no general rule of law by which the admissibility of a confession could be determined, * * * the courts [have] left the rule to be evolved from the facts of each particular case. * * * [W]hether a confession [is] voluntary [is] primarily one of fact, and therefore each case must depend upon its own proof.”
168 U.S. at 548-549, 18 S.Ct. at 189. The Court thereafter recited all the facts tending to show involuntariness: (1) Bram had been accused of a murder while at sea and had been placed in irons by the crew; (2) he was delivered to the police authorities upon landing; (3) he was placed in confinement to await action by the United States consul; (4) he was taken to the private office of the police interrogator; (5) he was stripped of his clothing by the detective; and (6) while denuded he was told by the detective that he had been seen committing' the act in question. The Court then concluded:
“Although these facts may not, when isolated each from the other, be sufficient to warrant the inference that an influence compelling a statement had been exerted; yet, when taken as a whole, in conjunction with the nature of the communication made, they give room to the strongest inference that the statements * * * were not made by one who, in law, could be considered a free agent.”
168 U.S. at 563-564, 18 S.Ct. at 195. Thus the Court both restates the totality of the circumstances test, and cautions against reliance by one court on any single factor suggested by another court under other circumstances to demonstrate *571involuntariness. It expressly disclaims any purpose to promulgate a rule that all implicating statements occasioned by police deception are per se involuntary and inadmissible under the Fifth Amendment.
. The police investigation determined that the crime occurred before 10:00 a. m. . The attendant interviewed by Officer Preston indicated that he and another attendant saw appellant twice between 11:00 and 11:30 a. m.
. It has long been the rule in this jurisdiction that a claim of denial of Hule 5(a) procedures must be raised through an objection to the admission of the confession. In this case there was no objection at trial and the Mallory point was *572not pressed on appeal. See Johnson v. United States, 110 U.S.App.D.C. 187, 290 F.2d 378 (1961); 1 C. Wright, Federal Practice & Procedure § 73, at 78 (1969).
. Dr. Owens recounted the telephone conversation he had with an Assistant United States Attorney before the interview on the correct procedure for preserving the rights of the accused and assuring the constitutional validity of whatever statement appellant might make. He testified that he was careful to give all the warnings exactly as they were passed along to him by the United States Attorney, and that he gave the warnings before appellant began to speak. Dr. Blum was just as certain that no warnings were given until after the confession.
. The majority opinion intimates tliat a question exists as to whether there was clear and convincing proof of waiver of those rights. Insofar as any competent patient in a mental institution may be said to waive his rights, appellant clearly did so here. There is not to my knowledge any judicial or statutory requirement that all inmates in hospitals of this type must be supplied with counsel as an absolute condition precedent to the use of any statement they may make. I do not understand the majority to suggest such a result.
. See, e. g., Greenwald v. Wisconsin, 390 U.S. 519, 521, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968) (dissenting opinion).
. Dr. Owens testified at the pretrial hearing that appellant had originally been transferred out of maximum security as the first step toward his eventual release, and that, once he proved that he could satisfactorily handle the increased responsibilities associated with ground privileges, he would have been “recommended to the Court for conditional release.” Dr. Blum, after recounting the normal hospital procedures leading to release, testified at trial that appellant “was leading towards * * * a conditional release, and then ultimately if his adjustment was very good, an unconditional release.” The record further makes clear that appellant knew that he was being considered for eventual release. Dr. Owens testified at trial that appellant understood “he was being transferred out of maximum security to accept additional responsibilities on bis own.” Robert Lee White, one of the ward attendants who often spoke with appellant, also testified that he talked often about his plans to be married after his release.
. Appellant’s medical history and diagnosis at the time of the crime and confession present a striking contrast to the evidence in Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960), which was said to establish indisputably “the strongest probability that [defendant] was insane and incompetent at the time he allegedly confessed.” The evidence in this case presents a different picture. Appellant’s initial diagnosis in 1965 was “schizophrenic reaction, undifferentiated type.” Some eight months later the diagnosis was changed to “emotionally unstable personality,” because appellant had never exhibited the symptoms of schizophrenia and the initial evaluation was erroneous. Approximately 15 or 16 months later he was transferred out of maximum security to an open ward. Appellant had been a “model” and “exemplary” patient. The officials were encouraged by his adaptation to the hospital environment and by his seeming suppression of his delusions about women. At no point in his medical history had his sporadic emotional responses against women so pervaded his mind as to interfere with his abilities of comprehension and communication.
. This is the same procedure for review of confessions set out in Section 3501(b) of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 3501(b) (Supp. V, 1970) (see complete text of this Subsection in footnote 10 of the majority opinion). The legislative history of this statute suggests that Congress desired to resurrect the “totality of circumstances” test for all confessions, and to override the exclusionary impact of Miranda in cases in which custodial interrogation was not prefaced with the requisite warnings. 2 U.S.Code Cong. & Admin.News, 2112, 2124-2138, 2210-2215, 2261-2263 (1968). While this Sub-section is subject to grave constitutional doubts (see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), the constitutional question will be presented only in a case in which the warnings were not given in an in-custody interrogation and the trial court finds the confession nonetheless admissible. This is not that case.
. The established rule for reviewing confessions under the “totality of circumstances” test is that “where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274. 281, 4 L.Ed.2d 242 (1960).
. 125 U.S.App.D.C. at 260, 371 F.2d at 357.
. 18 Ü.S.C. § 3501(a) (Supp. V, 1970). For the full text of Section 3501(a), see Note 17 of the majority opinion.
. 378 U.S. at 382, 399-400, 84 S.Ct. 1774.
. Although the question whether the Massachusetts or Orthodox procedure provides criminal defendants the greater protection is not free from doubt, the “protection of two independent determinations of voluntariness, by judge and jury” appears to make the Massachusetts view preferable from the standpoint of the *576accused. This is especially true in jurisdictions which require the initial finding to be beyond a reasonable doubt. Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury, 21 U.Chi.L.Rev. 317, 329-30 (1954).
. The statute states that
“the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.”
18 Ü.S.C. § 3501(a) (Supp. V, 1970).
. Judge Leventhal’s concurring opinion in Clifton became the basis for overruling Clifton in Pea.
. 125 U.S.App.D.C. at 266, 371 F.2d at 363. See also Jackson v. Denno, 378 U.S. at 389 n. 16, 84 S.Ct. 1774.
. At the pretrial hearing, both Dr. Blum and Dr. Owens testified that there was nothing whatsoever to indicate that appellant was incompetent with respect to any of the three confessions. When the Government asked Dr. Owens at trial whether it was his conclusion that appellant was competent to make the formal confession to the police, defense counsel objected and explained to the judge (out of the hearing of the jury) that he did not think the Government should go into the question of competency since defense counsel had “never contended [appellant) wasn’t competent.” His objection was overruled, and Dr. Owens testified about appellant’s ability to understand the warnings and to comprehend the significance of his confession to the police. Doctor Blum did not testify on the competency issue at trial since the confession made to him was not introduced. Likewise, Dr. Owens did not testify on appellant’s competence to make the confession to him. It is clear that at least one of the reasons underlying defense counsel’s objection to permitting the jury to hear the evidence on competency was the negative effect it might have on the insanity defense. If defense counsel at trial had introduced the other confessions, as appellant’s counsel on appeal suggests he should have done, the Government would surely have introduced the repeated assertions of both doctors that appellant was competent voluntarily to make all three confessions.
. 378 U.S. at 382, 84 S.Ct. at 1783, 12 L.Ed.2d 908.
. United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597, 601 (1970); Mitchell v. United States, 104 U.S.App.D.C. 57, 62-63, 259 F.2d 787, 792-793, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).
. 378 U.S. at 386 n. 13, 84 S.Ct. at 1786.
. While the Supreme Court has held unconstitutional the consideration of trustworthiness by the fact-finder in the determination of voluntariness (Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)), the converse is not uneonstiutional, i. e., there is no constitutional impropriety in the fact-finder’s consideration of voluntariness in deliberations regarding the confession’s trustworthiness.