with whom JAMESON, Senior District Judge, concurs:
We hold that defendant Bernett’s statement in response to Officer Schleig’s inquiry, “What is your name,” was made in a non-custodial setting, was uncoerced, and therefore could not have been involuntary within the meaning of the decided eases. The District Judge’s ruling admitting the statement into evidence was therefore correct and provides no ground for reversal.
I. Facts
Any analysis of the possible constitutional issues presented must turn on an acute appreciation of the situation as it appeared to the District Judge on uncon-tradicted evidence. Bernett’s blurted drunken confession took place before any police interrogation, save a request for his name. It took place before he was placed in anything resembling custody. There was absolutely no evidence or allegation of coercion; and the policeman’s presence in the room was solicited by a private party rather than the result of an official investigation.
The police officer was asked in by Mrs. Clark; but he specifically testified that neither this, nor any other circumstances, raised anything in his mind approaching official focused suspicion on Bernett. The policeman did ask Bernett his name, which hardly amounts to more than a preliminary inquiry. It does not reach the level of interrogation which would either require a Miranda warning or which would amount to subtle official intimidation. Mrs. Clark did supply Bernett with alcohol, which probably served to keep him within range of the police and to dull his ability to protect himself against the urge to confess. There is no question that police action of this sort would amount to “coercion” in some sense, despite the fact that it was Bernett’s choice to imbibe the proffered refreshment, but Mrs. Clark’s action was not police action.
In short, there was no evidence of the sort of state inquisition or coercion which would normally result in exclusion of a confession. Given these undisputed facts, the defendant’s plea for a reversal and remand for clarification necessarily implies some sort of constitutional right not to have one’s case blown by internally generated guilt, fear, stupidity, or drunkenness.
II. The Constitutional and Other Issues
A. Self-Incrimination
The basis for the constitutional doctrine that involuntary confessions are inadmissible in federal court is the Fifth Amendment privilege against self-incrimination. The language of the self-incrimination clause, “[n]o person . shall be compelled in any criminal case to be a witness against himself *966. ,” demonstrates that some form of governmental compulsion is a basic element of an involuntary confession. As the Supreme Court stated in Malloy v. Hogan:
[I]n Bram v. United States, 168 U.S. 532 [18 S.Ct. 183, 42 L.Ed. 568], the Court held that “[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Id., 168 U.S. at 542 [18 S.Ct. 183 at 187]. Under this test, the constitutional inquiry is not whether the conduct of [government] officers in obtaining the confession was shocking, but whether the confession was “free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . Id., at 542-543 [18 S.Ct. 183 at 186-187] [Further citations omitted]. In other words the person must not have been compelled to incriminate himself.1
It becomes clear that Bernett’s confession, on the undisputed facts, could not have been generated by constitutionally impermissible coercion. On the rationale of all the Supreme Court decisions in this field, it could not, therefore, have violated his constitutional right not to be compelled to be a witness against himself in a criminal case.
What the defendant contends for on this appeal is a far-reaching and quite novel principle — namely, that a pre-cus-tody, non-coerced inculpatory statement is constitutionally inadmissible in a criminal action unless the trial judge first finds, in a separate hearing, that it was “the product of a rational intellect and a free will.”
Since there was absolutely no allegation or evidence of coercion, nor was there at the time of the incriminating statement any custody, the “voluntariness” finding, which the defendant asserts as an indispensable prerequisite of the admission being admissible, must amount to a required finding that the appellant made a “rational” and “freewill” decision to talk in a non-custodial situation. To state this principle as a prerequisite to admissibility is to recognize how fundamentally different such a principle would be from the circumstances and holding of any previous case cited in its support. For it is hard to see how such a decision to make the statement appellant made here could ever, in a lawyer’s terms, be “rational” in a non-custodial situation.
While rationality might be highly relevant if the appellant’s comments were made in a situation of attempted compulsion, and thus amounted to a waiver of his right to be free from compelled self-incrimination, he was not so compelled here. We have no question of a waiver of his rights against attempted compulsion, because there was not a shadow of compulsion at the time Ber-nett blurted out his first statement. This is to be contrasted with the statement he later made while in police custody and in response to police questioning, which the trial court suppressed, an action whose supporting rationale is clearly derived from Miranda2 and related cases.
With regard to the trial court’s action in the suppression hearing, the defendant complains on this appeal that the District Judge’s inquiry re the first statement stopped short with his conclusion that the situation was non-custodial, accordingly that Miranda warnings were not required, and that he gave almost no consideration to the question of *967“voluntariness” aside from its Miranda aspect. We think there were very good reasons for the District Judge so conducting his inquiry. The legal question raised by the defendant at the suppression hearing (and on this appeal) was couched in terms of “voluntariness”— voluntariness in the constitutional principle sense as enunciated in Miranda and related cases. These decisions treat of “voluntariness” as an absence of compulsion, as we shall see both from the factual settings and the language of the opinions discussed fully later. This is why these cases arose as Fifth or Fourteenth Amendment questions; the compulsion forbidden therein is compulsion by the State, the voluntariness of the admission or confession required is the absence of State compulsion. The trial court satisfied itself of the absence of State (or any other) compulsion — there was never any custody — and thus resolved the only constitutional claim put forward by the defendant.
B. Due Process
Another line of argument would suggest that the statement was potentially excludable, and therefore a basis for requiring resolution of the drunkenness issue, as a matter of due process, rather than self-incrimination. Although it is possible that admission of certain highly unreliable evidence with great potential for prejudice could be a violation of fundamental fairness, there was absolutely no indication that Bernett’s statement was in fact unreliable, or that his condition rendered it so. Statements made by intoxicated persons are not per se unreliable.3 Here the defendant not only volunteered the statement he had killed a man, but gave the exact street address where he had done so. The normal rules of evidence on competence and prejudice provide a sufficient safeguard with respect to the admission or exclusion of this type evidence, and the trial judge correctly applied them here. It is hard to see how concepts of fairness founded in reliability could lead to a constitutionally based exclusion of what well could have been the very best evidence of what took place.
Finally, one strand of the “due process” argument might suggest that it is just too unfair to “take advantage” of one in appellant’s condition. Keeping in mind that there was absolutely no element of state questioning or coercion, that rationale would soon lead to the conclusion that “the criminal has blundered badly, so he must go free.”
The question Bernett raised in the District Court, and is before us here, although he termed it “voluntariness” in order to bring his issue within the terminology of a constitutional issue, is really much broader than the constitutional question of voluntariness. The question raised by Bernett is really a question of trustworthiness, whether he was sober enough (or drunk enough) to be telling the truth.
Trustworthiness is not a constitutional question at all; it is the classical question for the jury, under adequate instructions of course, unless the evidence is so blatantly unreliable that it should be excluded on the grounds of competence or prejudice. Voluntariness is a constitutional question, but volun-tariness is only one particular factor which analytically is included in the broader concept of trustworthiness. What the defendant seems to be urging here is an expansion of the constitutional underpinnings of voluntariness to a breadth sufficient to support a constitutional challenge to any ruling on evidence relating to any element bearing on its trustworthiness. This vastly broader constitutional issue the decided cases— in language and in factual situation'— definitely do not support.
III. The Limits of Previous Precedent
Although many of the cases in this area have involved very broad language, their facts and rationales do not support *968the holding sought here, which would implicitly sever the concept of “volun-tariness” from police custody, questioning, or coercion. Nor does the specially defined concept of “waiver” in these opinions apply in the circumstances here to invalidate the admissibility of Bernett’s undeniably voluntary statement.
The landmark case of Jackson v. Denno 4 did establish the need for prior judicial inquiry on the “voluntariness” issue as well as the notion that admission of an improper confession cannot be harmless error. However, that case concerned confessions given after in-custody questioning by the police, with additional elements of pain and refused requests for water thrown in for good measure. The constitutional rights as to the confession itself which were established there clearly turned on the possible presence of coercion-, and the case’s discussion of possible effects of drugs on rationality went to the notion of knowing and voluntary waiver of the right to remain silent.
Similarly, Sims v. Georgia,5 the "source of the requirement that voluntariness must appear with “unmistakable clarity,” contained some broad language but was decided in the context of confessions given while in the county jail. The court specifically noted that there was conflicting evidence regarding the voluntary nature of the confession. There was no such conflicting evidence in Bernett’s case, unless the concept of voluntariness is divorced from the type of coercion implicit in custody with which the Sims Court was clearly concerned.
The most far-reaching language in this area, which purports to establish a requirement for a valid confession of “a rational intellect and a free will,” stems from Blackburn v. Alabama.6 Again, the real import of that case must be analyzed against its factual background— nine hours of interrogation of a mental incompetent in a police-filled room. The Court found a violation of fundamental fairness when an agency of government “wrings a confession out of an accused against his will.” The differences in circumstance and appropriate rationale in Bernett’s case are so striking as to amount to another matter altogether.
The overriding importance of coercion, in either overt or subtle form, is again and again made clear by close analysis of the facts in cases which have excluded confessions or required clearer findings of “voluntariness.” Townsend v. Sain7 involved arrest, interrogation, withdrawal symptoms, and the administration of truth serum by a police physician. The holding in Haynes v. Washington8 turned on the fact of a sixteen-hour incarceration accompanied by threats and promises by the police. United States v. Guaydacan 9 concerned a confession after questioning by a customs agent, who threatened to send the suspect’s whole family to jail.
If we turn from outside coercion as the decisive factor, language in these cases which concerns the rationality of the suspect as an internal matter almost always goes to the validity of a purported waiver of the right not to answer police questions — the sort of “waiver” which was not present in Bernett’s case, and, on the facts, could not have been, thus making its absence irrelevant. In Guaydacan the drugged state of the suspect became relevant as an argument against the validity of the Miranda warnings, which he had to be dragged up off the floor to receive. In United States v. Silva10 the court ordered a hearing on the issue of whether *969the defendant had been mentally competent to waive his Fifth Amendment privilege and confess.
Particularly because of the imprecision of the shorthand used in such cases, it is possible for the notions of un-coerced confession and voluntary waiver to blur together when the only fact distinguishing the suspect from Bernett is arrest or custody, for arrest and custody can both make proof of an uncoerced confession necessary and also set the stage for the existence of a waiver being possibly relevant.11 Custody in and of itself is a form of compulsion — so the decision to confess in that context may involve the waiver of the right not to be compelled or coerced. The presumption that custody will to some degree operate to force cooperation just does not apply when cooperation is forthcoming before that fact, as is indubitably clear with Bernett.
Similarly, the existence of prior police questioning, and the focusing of suspicion, puts the suspect in a different position, more likely to be coerced in subtle ways and therefore more in need of protection against irrational waiver of the right not to be so coerced, from one on whom suspicion has not yet focused. In United States v. Robinson12 this court held improperly obtained a confession to a private doctor where the confession was the “culmination” of a process which had begun with improper interrogation by the police (custody was also a factor because the suspect was a committed mental patient).
In Bernett’s case, when Officer Schleig found out by his police radio that there had been a homicide at the address given by Bernett, and that there was a bulletin to bring Bernett in for questioning, the officer immediately pulled the car over to the curb and gave Bernett the Miranda warnings. Suspicion had then focused on Bernett; if there were to be a statement later admissible in evidence, it had to be a voluntary statement, i. e., a knowing waiver of Bernett’s rights in the situation which had by then developed.
There are several cases which, at first glance, appear to offer more support to the defendant’s position than do those discussed above. In Eisen v. Picard13 the court did discuss the admissibility of allegedly incompetent (as opposed to coerced) non-custodial inculpatory statements. The court said that “[in] view of the nature and importance of defendant’s inculpatory statements and his pri-ma facie claim of incompetence, we would look askance at their admission without reliable evidence indicating that they were in fact competent.” 14 To the extent that this statement is relevant, it was pure dicta, for the court had noted that, since the holding concerned custodial statements to police, “we do not reach the issue of whether a standard of voluntariness is applicable to non-custodial statements.” 15 Furthermore, it is quite possible to read the court’s statement as concerned with the normal rule against admission of incompetent evidence — a rule which does not have constitutional significance unless the evidence admitted is shown to be so significant that its admission results in a denial of fundamental fairness. That might have been true in Eisen’s case, but it certainly would not be so for Bernett.
On its face, the broad language of United States v. Robinson16 would seem to buttress defendant’s position. There we held inadmissible an inculpatory *970phrase which slipped out in the defendant’s pre-trial statement to the court. In the course of its discussion, this court said that a “ ‘confession must be . . . uninfluenced by . . . any extraneous disturbing cause which deprives him of his free will and volition.’ ”17 Aside from the ambiguity of the word “extraneous,” the potential import of this statement is necessarily modified by the fact that the “confession” was uttered while the defendant was not only in custody but also stood before the formal tribunal which would determine his guilt or innocence. In that context, the court’s discussion can be read as recognizing that in the face of such a tribunal, the accused had a right to remain silent and that a waiver of that right could be established only by an affirmative showing of voluntariness and rationality. Although there was no external compulsion in Robinson, to extrapolate this case as establishing a right to silence, which must be knowingly and rationally waived before either arrest or formal confrontation, is to base the result on a case which clearly did not anticipate Bernett’s situation.
Most nearly in point is the dicta of Gladden v. Unsworth.18 Although the case actually turned on the admissibility of a written confession given to police, the court also addressed itself to oral in-culpatory statements made right after the crime, when the defendant might have been in a “drunken stupor approaching mania.” A preliminary judicial inquiry on that issue was said to be important because “voluntariness is not necessarily established by proving that the confession was spontaneous or by proving the absence of an improper purpose on the part of the questioning officers.”19 The “mania” test appears to be borrowed from a string of pre-Mi-randa cases which actually allowed the admission of confessions made after arrest, unless drunkenness amounted to a state the court would characterize as “mania.”20 Without quarreling with the result reached by the Ninth Circuit, it does not appear to us that the Supreme Court opinion in Townsend v. Sain, supra, requires the conclusion of Gladden. Certainly Townsend does not support the dicta of Gladden,21 which offers no discussion of policy to support the novel rule set forth therein.
IY. Policy Behind the Constitutional Issues
Since it is clear that the relevant case law does not support, much less require, the result contended for by the defendant, we turn to an analysis of general principles and policies. Even if it is assumed that a remand would produce a clear finding that Bernett was as drunk as one can be and still utter inculpatory statements, it remains unclear why those statements should be constitutionally inadmissible under either a self-incrimination or due process rationale.
The literal terms of the self-incrimination clause go to the right not to be compelled to be a witness against oneself. The natural reading of this clause implies that it covers external compulsion, since the framers’ concern was *971with government inquisition.22 The Supreme Court has consistently made it plain that a goal of the involuntary confessions doctrine, which is founded on the Fifth Amendment privilege, is to deter governmental misconduct. For example, the Court stated in Spano v. New York:
The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrust-worthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.23
Since there was no such police misconduct in Bernett’s case, exclusion of his statement could not even serve its increasingly dubious role as a deterrent.
The various notions which make up the concept of due process and fundamental fairness also fail to require exclusion. Without judicially adopting the rule “in vino veritas,” we find no proof here establishing the contrary, i. e., no indication that Bernett’s statement was unreliable or that his condition rendered it so. While drink may lower caution as to truth in statements about others, it also lessens judgment as to self-protection concerning statements which strike closer to home. In that sense, it is probably true that a drunkenly blurted confession fails to conform to some abstract notion of free will; but it is also true that self-condemnation is rarely “rational” even though uncoerced.
It could be said that, by allowing use of Bernett’s statement, the law is “taking advantage” of a man who was not at his best; but the same is true every time any carelessly mislaid piece of in-culpatory evidence is introduced. Admission of this statement is no more prejudicial to Bernett’s right to remain silent at trial than would be the introduction of a revolver with his name stamped on it which he had left at the scene. Perhaps most importantly, exclusion of such statements would destroy the usefulness of the criminal’s guilty and indiscreet candor in the process of law enforcement. Of course such candor should not be coerced; but if it is offered up be'fore the conscientious policeman can even reach for his Miranda warning form-card, the law cannot and should not look the other way.
V. “Voluntariness” or “Trustworthiness” as a Non-Constitutional Issue
As shown above, we think the issues here do not involve constitutional principles of self-incrimination or due process. Rather, Bernett’s drunkenness at the time of blurting out the damning words raises questions of competence, prejudice, or trustworthiness, nothing more. Therefore, at worst, the trial court’s handling of the matter could amount to (1) an abuse of discretion in ruling on the competence of Bernett as the utterer of the statement; (2) an abuse of discretion in weighing relevance against potential prejudice; or (3) a violation of the procedural requirements of 18 U.S.C § 3501. Given the current trend towards allowing the introduction of nearly all evidence for whatever it is worth, it seems unlikely that Bernett could be held fatally incompetent when he could still speak intelligibly and give verified detail. In any case, there is no need for either findings or clarity as to this issue. The trial *972judge properly has great discretion in ruling on competence and, absent more of a showing of unreliability than is present here, his ruling should stand.
Likewise, the issue of just how drunk Bernett was has bearing on the trial court’s discretionary balancing of the probative value of evidence against its likely prejudicial effect. Once again, all the signs point to reliability and any prejudice results from just that fact.
It is also conceivable that failure to resolve the drunkenness question violated the procedural requirements of 18 U.S.C. § 3501 (1970). That statute provides that “the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness.” Since this provision was a Congressional attempt to expand the use of confessions, and because it self-consciously drew on established judicial language, it can be argued that the “voluntary” standard included therein goes solely to coercion, except as supplemented by notions of rational waiver after confrontation. A contrary reading appears, however, from the provisions of § 3501(d):
Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention. (Emphasis added.)
This subsection could be read to imply that a confession could be held to have been involuntary even if given spontaneously, before custody, and without the normal sorts of coercion. On the other hand, this subsection can be read as a broad exception to the procedural requirements of § 3501, waiving the need for prior judicial determination as to pre-custody spontaneous statements. Given the background and purpose of the statute, the latter is what Congress meant, and we so hold.
Without attempting to explicate in full our reasons for holding there was no error on these last three points, it is sufficient to note that all of these issues on which drunkenness might be relevant raise only a spectre of error which contains no constitutional substance. To the ectoplasm of these possible trial court mistakes the harmless error rule would apply, so we reach a result here parallel to that in Judge Robinson’s opinion (Part IV) on the issue of instructions.
The conviction is Affirmed.
On Appellant’s Suggestion for Rehearing En Banc
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON. ROBB and WILKEY, Circuit Judges, sitting en banc.
ORDER
Appellant has filed a suggestion for rehearing en banc. On consideration thereof, it is
Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Statement of Circuit Judge LEVEN-THAL, as to why he has voted to deny rehearing en banc.
Chief Judge BAZELON and Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III would grant rehearing en banc, limited to the voluntariness issue discussed in Part III of Judge ROBINSON’S opinion in this case.
STATEMENT OF CIRCUIT JUDGE LEVENTHAL AS TO WHY HE HAS VOTED TO DENY REHEARING EN BANC
1. Although I am voting to deny rehearing en banc, I have doubts concerning that part of Judge Wilkey’s opinion for the panel which states that a constitutional challenge against receipt in evidence of an admission to the police for lack of voluntariness is conclusively *973doomed where, as here, the setting was non-custodial and the officer's inquiry was not coercive.
Here there was no misconduct whatever on the part of the police, but the constitutional challenge does not necessarily require this. The verbal formulae differ somewhat from case to case, but the precedents converge in rejecting the notion that minimum fairness is satisfied, and that is the underpinning of due process, when a conviction is based upon the receipt in evidence of an admission made to the police under circumstances when the defendant lacked any significant measure of free will. See Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960): “[T]he evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane.” 361 U.S. at 207, 80 S. Ct. at 280. Would Chief Justice Warren’s premise of outrage be removed if the hapless incompetent confessed to the police in a non-custodial setting or in answer to a generalized question? Later, the Court expressly said it was “not significant” that questions by the police may have been asked by persons unfamiliar with hyoscine’s properties as a “truth serum.” Townsend v. Sain, 372 U.S. 293, 307-309, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963). In Pea v. United States, 130 U.S.App.D.C. 66, 71, 397 F.2d 627, 632 (1968) we said: “It must be shown that in fact the confessor had a free will and intellect whether or not the detective had any reason to doubt its presence or suspect its absence.”
As to drunkenness as a condition that may negative voluntariness, there is a difference in degree that is significant (see point 3), but not a difference in kind,1 *as appears from Gladden v. Unsworth, 396 F.2d 373 (9th Cir. 1968), the case of “a drunken stupor approaching mania.” (p. 380). And the ruling in Unsworth’s case was a holding, not dictum.2
2. Judge Wilkey soundly points out the facts of the decided cases generally involved persons in some kind of custody or coercive-type police questioning.3 Absence of custody (and of coercive-type questioning) is certainly relevant on the issue of voluntariness, indeed highly material, perhaps “well nigh conclusive.” But is it absolutely conclusive?
Suppose a police officer puts a question of the kind put to a citizen generally in an investigation (see note 2) as distinguished from a focused suspect? Is his position completely irrelevant in causing people to respond? There may be a responsibility of government to *974avoid using the words of someone who is hapless — including in the term government not only the police (supra,, note 1), but also the prosecutor and the judge. The Supreme Court has consistently warned us to avoid looking for absolutes in determinations of voluntariness, and has consistently noted that the issue depends on an assessment of “the totality of all the surrounding circumstances— both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).
It is one thing for a criminal to blunder by leaving behind a weapon or fingerprint. But as pointed out in Pea, a testimonial statement must be distinguished from. inanimate evidence for it is presented in the case as “the unique evidentiary contribution of ‘an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’ ” 4 For the police to receive, the prosecutor to offer, and the judge to receive, such testimony from a person without free will raises more questions than merely pouncing on a criminal’s blunder.
3. However, this case on its facts is simply not a suitable vehicle for exploration of these issues. As Judge Wilkey’s opinion points out, in concluding that in this case the trial court did not abuse his discretion, “it seems unlikely that Ber-nett could be held fatally incompetent when he could still speak intelligibly and give verified detail.” (at 971). In saying that exclusion is not required by concepts of fundamental fairness the panel noted there was “no indication that Ber-nett’s statement was unreliable or that his condition rendered it so.”
Even my reservations as to a constitutional claim assume some kind of government involvement at the time of the statement (though not necessarily coercive questioning). Whatever limitations are placed by the Constitution they are at lowest ebb in the case of a spontaneous exclamation, for example to a crowd that happened to include a detective, or even a policeman, unbeknownst to the declarant. This is not that ease, but it is close; the police only asked, What’s your name?
While the trial judge’s approach seems to have been focused on the presence or absence of custody because of the Miranda portion of the challenge of defense counsel, his failure to focus expressly on the voluntariness issue apparently reflects a view that the facts of this case, taking the limited condition of drunkenness together with the absence of custodial restraint, did not raise a substantial question of voluntariness. While “unmistakable clarity” is contemplated by Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), that was in a setting of disputed trial testimony, and even so the Court refrained from requiring formal findings of fact.
In the case of a condition as widespread as drunkenness, there is room for a high threshold. Many people who are very drunk indeed retain sufficient vol-untariness for basic volitional capacity,5 even though they have suffered some impairment, and it does not shock the conscience to repeat what they say any more than to convict them for crimes requiring only “general intent,” a commonplace of our legal system.
I take the present ease as one where the court is affirming a ruling by the trial judge that, on the particular facts, including the defendant’s condition, the innocuous police question and absence of custody, there was no substantial doubt as to voluntariness.
. 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (emphasis supplied).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See Mergner v. United States, 79 U.S.App.D.C. 373, 147 F.2d 572, cert. denied, 325 U. S. 850, 65 S.Ct. 1085, 89 L.Ed. 1971 (1945); Bell V. United States, 60 U.S.App.D.C. 76, 77-78, 47 F.2d 438, 439-440 (1931).
. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 90S (1964).
. 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).
. 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).
. 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
. 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).
. 470 F.2d 1173 (9th Cir. 1972).
. 418 F.2d 328 (2d Cir. 1969).
. For example, in Gilpin v. United States, 415 F.2d 638 (5th Cir. 1969), the court held inadmissible a first drunkenly blurted confession (and derivative subsequent statements) made while in police custody. However, it is not surprising that a right to clearly established “voluntariness” with regard to a decision to talk arises with the mere fact of custody.
. 142 U.S.App.D.C. 43, 439 F.2d 553 (1970).
. 452 F.2d 860 (1st Cir. 1971).
. 452 F.2d at 865-866.
. 452 F.2d at 863 n. 3.
. 148 U.S.App.D.C. 140, 459 F.2d 1164 (1972).
. 148 U.S.App.D.C. at 144, 459 F.2d at 1168, citing 29 Am.Jur.2d Evidence § 543 (1970).
. 396 F.2d 373 (9th Cir. 1968).
. 396 F.2d at 380.
. See Mergner v. United States, 79 U.S.App.D.C. 373, 147 F.2d 572, cert. denied, 325 U.S. 850, 65 S.Ct. 1085, 89 L.Ed. 1971 (1945).
. It is true that in Townsend it was said that a confession which is not “the product of a rational intellect and a free will” is inadmissible. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754 (1963). This statement, however, was made in the context of custody, police interrogation, and externally imposed coercion. Also, other remarks in the case strongly suggest that “rational intellect and free will” means simply the absence of governmental compulsion. For example, the-Court said: “Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.” Id. at 308, 83 S.Ct. at 754.
. See Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) : “[T]lie American system of criminal prosecution is accusatorial, not inquisitorial, and . tlie Fifth Amendment privilege is its essential mainstay.”
. 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265 (1959). See also, Jackson v. Denno, 378 U.S. 368, 385-386, 84 S.Ct. 1774; Bator & Vorenberg, Arrest, Detention, Interrogation and the Bight to Counsel, 66 Colum.L.Rev. 62, 73 (1966) ; Developments in the Law, Confessions, 79 Harv.L.Bev. 935, 973 (1966).
. See Pea v. United States, 130 U.S.App.D.C. at 75, 397 F.2d at 636. Footnote 13 reads: In 1958 the U.S. Attorney for the District lectured police officers regarding suspect interrogation in a hospital, instructing the police to give advice of constitutional rights and stating further: “You must satisfy yourself that the man who is being questioned is not under sedation, is not drunk, that he hasn’t been hit on the head • — in other words, that he knows what he’s doing and his action is a voluntary act.” Reprinted in Hearings on H.R. 11477 et al. Before a Subcommittee of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. 411 (1958).
In Pea the court said that a condition of concussion, with a bullet lodged in a man’s skull, was the “equivalent” of a truth drug “so far as effect on free will is concerned” 130 U.S.App.D.C. at 72, 397 F.2d at 633.
. The ruling required, a new trial unless the state established the voluntariness of a confession made by Unsworth in his cabin, some 15 minutes after the shooting, where there was no custody and “there was no testimony that deputies . . . asked Unsworth any questions.” (p. 379). What was put to Unsworth was said by Walker, the owner of a nearby cafe, see p. 379: “Walker went over to the bed and asked Unsworth what was going on.” The ruling required a new trial even if the defendant were found to have recovered sufficiently from his drunkenness at the time of his later statements to make .them voluntary.
. However, as appears from footnote 2, in Gladden v. Unsworth there was neither custody, questioning by the police, or any coercive-type questioning.
. See Pea, cited supra, note 1, 130 U.S.App.D.C. at 73, 397 F.2d at 634, quoting from Smith and Bowden v. United States, 117 U.S.App.D.C., 1, 3, 324 F.2d 879, 881 (1963).
. A person’s actions or statements may be adequate to avoid a constitutional claim of unfairness in the use of statements that were not “voluntary,” even though they did not rise to the level of intentional relinquishment of a known legal right required for waiver. Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).