(temporarily assigned), dissenting. I am constrained to dissent from the Court’s reversal of the Appellate Division judgment in this case. My grounds are two: (1) the unanimous determination of the Appellate Division that the confession obtained from defendant was extracted from him by means that denied him due process was sound; and (2) the circumstances attending the substitution of a juror during the deliberations of the jury denied the defendant his right to an untainted jury trial. Eor either or both of these reasons the verdict of guilt should be set aside and the defendant granted a new trial.
*409I
I address the confession issue first. It goes without saying that it is not easy for a judge to render an adjudication that results in the vacation of the conviction of an apparently guilty person — especially where the crime is as reprehensible as this one. It is evident from the Appellate Division opinion that that court felt the pressure of the same considerations. But no principle of legal jurisprudence is better settled in this country or more self-evident than that the price of faithful enforcement by the judiciary of the constitutional rights of individuals embedded in the Bill of Rights may on occasion be the setting free or the enforced retrial of a malefactor. Only a year ago Justice Stewart, in a case comparable to the instant one in its tension between the demands of law enforcement and those of vindication of individual constitutional rights, felt moved to say, in expressing the reasons of the Supreme Court for vacating a conviction:
The pressures on state executive and judicial officers charged with the. administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.
Brewer v. Williams, 430 U. S. 387, 406, 97 S. Ct. 1232, 1243, 51 L. Ed. 2d 423 (1977).
Previously, in a confession case, Chief Justice Warren had said:
The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. 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.
Spano v. New York, 360 U. S. 315, 320-321, 79 S. Ct. 1202, 1206, 3 L. Ed. 2d 1265 (1959). See also Mapp v. Ohio, 367 U. S. 643, 659, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 *410(1961); Olmstead v. United States, 277 U. S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Justice Brandeis, dissenting).
This Court has been equally faithful to these high principles. In State v. Macri, 39 N. J. 250, 266 (1963), Justice Jacobs stated:
State judges, no less than federal judges, have the high responsibility of protecting constitutional rights. While they, no less than lav? enforcement officers, are disturbed when the guilty occasionally go unpunished, they tolerate that as the incidental cost of insuring the continued effectiveness of the guaranties afforded by the Constitution to all of us as free men.
All members of this Court, each conscientiously voting his own views on the merits of this troublesome issue, are bound at least to realize that an affirmance of the conviction in this case signals to the law-enforcement community that the method of interrogation of this defendant resulting in the confession before us is unexceptionable and may be freely practiced. I cannot join in such a signal.
All members of the Court agree that an involuntary confession — one extracted from a suspect by physical or psychological coercion on the part of the police — cannot be used in a trial of the suspect, as a matter of his right not to be deprived of his liberty without due process. Brown v. Mississippi, 297 U. S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936); McCormick on Evidence (1972) § 149, p. 317. Although the cases recognize that no single test of involuntariness can be formulated, the essence of the controlling rationale is found in the statement in Culombe v. Connecticut, 367 U. S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037 (1961):
The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if *411Ills will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. * * a, ¶|16 jjjjg o:£ distinction is that at which governing self-direction is lost, and compulsion, of whatever nature or however infused, propels or helps to propel the confession.
Another view of the matter, drawing from earlier cases, was reformulated in Malloy v. Hogan, 378 U. S. 1, 7, 84 S. Ct. 1489, 1493, 12 L. Ed. 2d 653 (1964), where the Court said:
* *' *■ the constitutional inquiry is not whether the conduct of state officers in obtaining the confession is shocking, but whether the confession was ‘free and voluntary: that is [it] must not be extracted by any sort of threat or violence, «Ior obtained by any dm-eot or implied promises, however slight, nor by the exertion of any improper influence * * (emphasis added).
In Miranda v. Arizona, 384 U. S. 436, 448, 86 S. Ct. 1602, 1614, 16 L. Ed. 2d 694 (1966), the Court noted:
* * ■*' we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. * * * this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.
No two cases are alike; all must be decided on the totality of the circumstances. But ultimately “neither the body nor mind of an accused may be twisted until he breaks.” Culombe v. Connecticut, supra, 367 U. S. at 584, 81 S. Ct. at 869.
Of importance to a resolution of this appeal is an understanding of the burden of proof of the State to establish the voluntariness of an impugned confession and of the scope of review by an appellate court on such an issue. This Court has plainly established the burden of proof on the State as that of proving voluntariness of a confession beyond a reasonable doubt. State v. Yough, 49 N. J. 587, 601 (1967); State v. Kelly, 61 N. J. 283, 294 (1972). As to scope of appellate review, since the issue is of constitutional dimension *412and is one of mixed fact-law, the reviewing court conducts a sweeping surveillance of the question practically the equivalent of de novo redetermination.1 Beckwith v. United States, 425 U. S. 341, 348, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); Spano v. New York, supra, 360 U. S. at 316, 79 S. Ct. 1202 (1959); State v. Contursi, 44 N. J. 422, 428, n. 2 (1965); State v. Smith, 32 N. J. 501, 544, 549 (1960), cert. den. 364 U. S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961), and see State v. Johnson, 42 N. J. 146, 160, n. 2 (1964).
In view of the foregoing, and the circumstances that all subordinate facts relating to the voluntariness of this confession were essentially uncontested (the court had available the verbatim transcript of a taping of the entire interrogation at the police station), the Appellate Division had the ultimate responsibility of determining independently for itself whether the State had carried its burden of establishing beyond a reasonable doubt that the confession was voluntary, i. e., that “neither the body nor mind” of Miller was “twisted until he [broke].” Culombe v. Connecticut, supra, 367 U. S. at 584, 81 S. Ct. at 1860. That the Appellate Division cannot fairly be said to have erred in finding that the State did not meet its burden is best demonstrated by setting forth its opinion substantially in its entirety, as follows:
“PER CURIAM
“Defendant was convicted by a jury of murder in the first degree. He appeals on a number of grounds. The principal one of these is a challenge to the voluntariness of a confession.
“We are extraordinarily fortunate in having before us the transcript of a tape recording made during the interrogation which led to the confession. This obviates any *413need to speculate with respect to that which transpired. Operating, then, from this unique vantage point, we first declare our allegiance to the 'decent’ hope that a guilty man may stub his toe. State v. McKnight, 52 N. J. 35, 52 (1968). Then we deplore the techniques and tactics which extracted this confession and which, in our judgment, denied defendant due process of the law.
"A Miranda (Miranda v. Arizona, 384 U. S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966)) voir dire was held. Thereafter the judge found, in findings adequately supported by credible evidence in the whole record (State v. Johnson, 42 N. J. 146 (1964)), that Miranda warnings were given and in a timely manner. Then the trial judge, recognizing the 'only real problem’ as being one of 'whether or not there was any cajolery, inducement, combination thereof that overcame the will of the defendant so that his subsequent answers to the several questions were not, "voluntary”,’ and relying upon the definition of 'voluntary’ found in Schneckloth v. Bustamonte, 412 U. S. 218 [93 S. Ct. 2041, 36 L. Ed. 2d 854] (1973), determined the confession to be admissible. He said,
I don’t think there was any trickery either apparent or infer-able in this statement. The most that can be said as [defense, counsel] has indicated a promise of help. There is no question that is in the statement, but I do not find that promise was such as to cause this confession to be, inadmissible and therefore it will be received in evidence subject to certain deletions about which we should talk now I presume.
"We are clearly persuaded of error in this determination.
“The tape transcript must be read in its .entirety for its full aroma to be savored. The interrogation began (at two o’clock in the morning) gently enough with a recitation of an earlier discussion between the interrogating trooper and defendant at the latter’s place of work. It prodded defendant (almost kindly; the trooper eon*414tinually addressed defendant both patronizingly and' by his first name) about his whereabouts and activities on the previous day. Then a minor discrepancy in defendant’s timetable arose. The trooper pressed his advantage, again gently. 'Okay, now,’ he told defendant, 'this is a problem.’ Defendant said, 'I realize this . . .’
“Then the trooper pointed out that defendant’s vehicle had some damage, some red clay or dirt, and1
T: There was blood found on the left front interior portion of your vehicle, tonight, fresh blood.
D: Fresh blood ?
T: Yes, sir. This is very, very serious.
D: I realize this. ■
T: That’s point 3. * :h »■
“Then came the first significant police statement, assertedly untrue because as defendant graphically points out in his brief, 'no evidence at all of this crucial fact was presented at trial.’ .
T: We have a witness, Frank, now this is point 4. We have a witness who identified your car, who, no, I’m, I’m sorry, let me, I shouldn’t say your car, who identified a vehicle that fits the description of your car, at this girl’s home, speaking with her, telling her something about a cow being loose. Someone who. was there who wanted to help her, they didn’t want to hurt this girl, they didn’t want to hurt this girl, Frank, they wanted to help her. - You see,-I know this, I know that, . . .
D: Yeah.
“If this was untrue, what followed immediately thereafter was obviously designed to capitalize on the chicane:
T: ... because I can appreciate that, because I would have done the same thing. If there was something to be. rectified,: or *415if somebody had a problem, I would have done the same thing. I would have wanted to help her. ■ The vehicle that came onto the property ...
D: Right.
T: ... fits the description of your vehicle.
D: It does.
T: Yes. Now, that’s the fourth point. And when I say fits the description, what I mean, Frank, is it fits the description to a ‘t’, and as we talked about before, how many other vehicles are there like yours in the County right now?
D: There shouldn’t be too many, if any . . .
T: If any . .
D: ... because of the damage on the right-hand side.
T: Now, what would your conclusion be under those circumstances, if someone told you that?
D: I’d probably, uh, have the same conclusion you got.
T : Which is what?
D: That I’m the guy that, that did this.
T: That did what?
D : Committed this crime.
“The trooper then told defendant that 'we have a physical description * * * from another witness’ which 'fits you and the clothes you were wearing.’ Defendant also challenges the truthfulness of this statement.- In any event, that which had proceeded provided all the stage that was needed for that which followed. The trooper embarked doggedly on a campaign marked by (1) his insistence that defendant was not a criminal and did not have a criminal mind and (2) persistent offers 'to help.’ Typical of that which was to occupy a good portion of the balance of this fifty-eight minute - grilling was what then transpired:
T: Frank, I don’t think you’re a criminal. I don’t think you’re a criminal. I don’t think you have a criminal mind. As a matter of fact, I know you don’t have a criminal mind, because we’ve been talking now for a few hours together, haven’t . we?
D: Right:
T: Right?
D: Yeah. -
T: You don’t have a criminal mind.
*416D: No.
T: I know you don’t. But, like I noted before, we all have problems.
D: Bight.
T: Am I right?
D: Yeah, you said this over there at the plant.
T: And you agree with me?
D: Yes, sir.
T: I have problems and you have.
D: Bight.
T: Now, how do you solve a problem?
D: That depends on the problem.
T: Your problem, how do we solve it? How are we going to solve it?
D: This I don’t know.
T: Do you want me to help you solve it?
D: Yeah.
T: You want me to extend all the help I can possibly give you, don’t you?
D: Bight.
T: Are you willing to do the same to me?
D: Yeah.
T: Now, I feel . . .
D: Yeah.
T: ... who is ever, whoever is responsible for this act . . .
D: Yeah.
T: He’s not a criminal. Does not have a criminal mind. X think they have a problem.
D: Uh, huh.
T: Do you agree with me?
D: Yeah.
T: They have a problem.
D: Bight.
T: A problem, and a good thing about that Frank, is a problem can be rectified.
D: Yeah.
T: I want to help you, I mean I really want to help you, but you know what they say, God helps those who help themselves, Frank.
D: Bight.
T: We’ve got to get together on this. You know what I’m talking about, don’t you?
D: Yeah, especially if they’re trying to say that, you know, that like you say, I’m identified and my car’s identified, and uh, we got to get together on this.
T: Yes we do. Now, that’s only a few of the items . . :
D : Uh, huh.
*417T: ... that we have now. Your problem, I’m not, let’s forget this incident, okay ...
tí : Yeah.
H3 : . . . let’s forget this incident, let’s talk about your problem. This is what, this is lohat I’m concerned with, Frank, your problem.
D: Eight.
T: If I had a problem like your problem, I would want you to help me with my problem.
D: Uh, huh.
T: Now, you know what I’m talking about.
D: Yeah.
T: And I know, and I think that, uh, a lot of other people know. You know what I’m talking about. I don’t think you’re a criminal, Frank.
D: No, but you’re trying to make me one.
T: No I’m not, no I’m not, but I want you to talk to me so we can get this thing worked out. This is what I want, this is what I want, Frank. I mean it’s all there, it’s all there. I’m not saying . . .
“The will-abrading grind continued:
D: If she [the victim] was to walk in here now, I wouldn’t know, know that she was the girl that, uh, you’re talking about.
T: But you were identified as being there talking to her minutes before she was . . . probably this thing that happened to her. How can you explain that?
D: I can’t.
T: Why?
D: I don’t know why, but I, I, you know, how can I explain something that I don’t know anything about.
T: Frank, look, you xoant, yon want help, don’t you Frank?
D: Yes, uh huh, yes, but yet I’m, I’m not going to admit to something that, that I wasn’t involved in.
T: We don’t want you to, all I want yon to do is talk to me, that’s all. I’m not talking about admitting to anything Frank. I want you to talk to me. I want you to tell me what you think. I want you to tell me how you think about this, what you think about this?
D: What I think about it?
T: Yeah.
D: I think whoever did it really needs help.
T: And that’s what I think and that’s what I know. They don’t, they don’t need punishment, right? Like you said, they need help.
*418D: Right.
T: They don’t need punishment. They need help, good medical help.
D: That’s right.
T: ... to rectify their problem. Putting them in, in a prison isn’t going to solve it, is it?
D: No, sir. I know, I was in there for three and a half years.
T: That’s right. That’s the, that’s not going to solve your problem is it?
D: No, you get no help down there. The only thing you learn is how to, you know . . .
T: Well, let’s say this Frank, suppose you were the person who needed help. What would you want somebody to do for you? D: Help me.
T: In what way?
D: In any way that they, they see, you know, fit, that it would help me.
“The trooper induced defendant to say that whoever committed the deed probably had a mental problem. Then he asked defendant if he had ever been “examined.” Upon being advised that he had been tested, the trooper then directed his energies to convincing defendant that he ‘might not be responsible for’ his acts but that the blame was in others for their inability to help him.
T: Well, then did you still feel this way that something might happen it would be their fault because, as far as Frn concerned if something did happen, it’s not your fauht, its their fault . . .
D: Right.
“The trooper acknowledged that defendant was becoming ‘very, very nervous.’ The time had come.
T: Now listen to me Frank. This hurts me more than it hurts you, because I love people.
D: It can’t hurt you anymore than it hurts me.
T: Okay, listen Frank, I want you . . .
D: I mean even being involved in something like this.
T: Okay, listen Frank. If I promise to, you know, do all I can with the psychiatrist and everything, and we get the proper help for you, and get the proper help for you, will you talk to me about it?
D: I can’t talk to you about something I’m not . . .
*419T: Alright, listen Frank, alright, honest. I know, I know what’s going on inside you, Frank. I want to help you, you know, between us right now. I know what going on inside you. Frank, you’ve got to come forward and tell me that you want to help yourself. You’ve got to talk to me about it. This is the only way we’ll be able to work it out. I mean, you know, listen, I want to help you, because you are in my mind, you are not responsible. You are not responsible, Frank. Frank, what’s the matter?
D: I feel bad.
T: Frank, listen to me, honest to God, I’m, I’m telling you, Frank, (inaudible). I know, it’s going to bother you, Frank, it’s going to bother you. It’s there, it’s not going to go away, it’s there. It’s right in front of you, Frank. Am I right or wrong?
D: Yeah.
T: You can see it Frank, you can feel it, you can feel it but you are not responsible. This is what I’m trying to tell you, but you’ve got to come forward and tell me. Don’t, don’t, don’t let it eat you up, don’t, don’t fight it. You’ve got to rectify it, Frank. We’ve gott to get together on this thing, or I, I mean rdally, you need help, you need proper help and yotu hnow it, my God, you hnow, in God’s name you, yon, you hnow it. You are not a criminal, you are not a criminal.
“That was enough. Defendant had been told in the name of God he was not a criminal.
D: Alright. Yes, I was over there and I talked to her about the cow and left. I left in my car and I stopped up on the road where, you know, where the cow had been and she followed me in her car . . .
“Even the recitation of the details was interrupted with relentless and successful Svengalian efforts. At one point the trooper interjected, £Let it come out, Prank. I’m here, I’m here with you now. I’m on your side, I’m on your side, Frank. I’m your brother, you and I are brothers Frank. We are brothers, and I want to help my brother.’
“Defendant’s continued insistence that despite his presence at the scene, he was not the killer could not long resist the tremendous psychological pressure.
T: You killed this girl didn’t you?
D: No, I didn’t.
*420T: Honest, Frank? It’s got to come out. You can’t leave it in. It’s hard for you, I realize that, how hard it is, how difficult it is, I realize that, but you’ve got to help yourself before anybody else can help you. And we’re going to see to it that you get the proper help. This is our job, Frank. This is our job. This is what I want to do.
D: By sending me back down there.
T: Wait a second now, don’t talk about going back down there. First thing we have to do is let it all come out. Don’t fight it because it’s worse, Frank, it’s worse. It’s hurting me because I feel it. I feel it wanting to come out, but it’s hurting me, Frank. You’re my brother, I mean we’re brothers. All men on this, all men on the face of this earth are brothers, Frank, but you got to be completely honest with me.
D: I’m trying to be, but you don’t want to believe me.
T: I want to believe you, Frank, but I want you to tell me the truth, Frank, and you know what I’m talking about and I know what you’re talking about. You’ve got to tell me the truth. I can't help you without the truth.
D: I’m telling you the truth. Sure, that’s her blood in the car because when I seen the way she was cut I wanted'to help her, and then when she fell over I got scared to even be involved in something like this, being on parole and . . .
T: I realize this, Frank, it may have been an accident. Isn’t that possible, Frank? Isn’t that possible?
D: Sure, it’s possible.
T: Well, this is what I’m trying to bring out, Frank. It may be something that, that you did that you can’t be held accountable for. This is, I can help you, I can help you once you tell me the truth. You know what I’m talking about. I want to help you, Frank. I like you. You’ve been honest with me. You’ve been sincere and I’ve been the same way with you. Now this is the kind of relationship we have, but I can’t help you unless you tell me the complete truth. I’ll listen to you. I understand, Frank. You have to believe that, I understand. I understand how you feel. I understand how much it must hurt you inside. I know how you feel because I feel it too. Because some day I may be in the same situation Frank, but you’ve got to help yourself. Tell me exactly what happened, tell me the truth, Frank, please.
D : I’m trying to tell you the truth.
T: Let me help you. It could have been an accident. You, you’ve got to tell me the truth, Frank. You know what I’m talking about. I can’t help you without the truth. Now you know and I know that’s, that’s, that’s all that counts, Frank. You know and I know that’s what counts, that’s what it’s all about. We can’t hide it from each other because we both *421know, but you’ve got to be willing to help yourself. You know, I don’t think you’re a criminal. You have this problem like we talked about before, right?
D: Yeah, you, you say this now, but this thing goes to court and everything and you . . .
T: No, listen to me, Frank, please listen to me. The issue now is what happened. The issue now is truth. Truth is the issue now. You’ve got to believe this, and the truth prevails in. the end, Frank. You have to believe that and I’m sincere when I’m saying it to you. You’ve got to be truthful with yourself.
D: Yeah, truth, you say in the end, right? That’s why I done three and a half years for . . .
T: Wait, whoa . . . whoa
D: . . . for a crime that I never committed because of one stinkin detective framing me. . .
T: Frank, Frank.
D: ... by the name of Rocco.
T: Frank, you, you’re talking to me now. We have, we have a relationship, don’t we? Have I been sincere with you, Frank?
D: Yeah, you . . .
T: ... Have I been honest?
D: ... Yes.
T: Have I defined your problem, Frank? Have I been willing to help you? Have I stated I’m willing to help you all I can?
D: Yes.
T: Do I mean it?
D: Yes.
T: Whenever I talk to anybody I talk the same way, because you have a very, very serious problem, and we want to prevent anything in the future. This is what’s important, Frank, not what happened in the past. It’s right now, we’re living now, Frank, we want to help you now. You’ve got a lot more, a lot more years to live.
D: No, I don’t.
T: Yes, you do.
D: No, I don’t.
T: Don’t say you don’t. Now you’ve got to tell me.
D: Not after all this, because this is going to kill my father.
T: Listen, Frank. There is where you, the truth comes out. Your father will understand. This is what you have to understand, Frank. If the truth is out he will understand. That’s the most important thing, not, not what has happened, Frank. The fact that you were truthful, you came forward and you said, look I have a problem. I didn’t mean to do what I did. I have a problem, this is what’s important, Frank. This is very important, I got, I, I got to get closer to you, Frank, I *422got to make you believe this and I’m, and I’m sincere when I tell you this. You got to tell me exactly what happened, Frank. That’s very important. I know how you feel inside, Frank, it’s eating you up, am I right? It’s eating you up, Frank. You’ve got to come forward. You’ve got to do it for yourself, for your family, for your father, this is what’s im-r portant, the truth, Frank. Just tell me, you didn’t mean to kill her did you?
“Defendant’s capitulation to the superior mind was complete :
D: I thought she was dead or I’d have never dropped her off like that.
“ T mean, Frank,’ the trooper said, ‘this is hurting me, God listen. I just want you to come out and tell me, so I can help you, that’s all.’
“At the end of the interrogation and before a written statement could be prepared, Frank Miller collapsed physically. In his testimony the trooper candidly described it as ‘a state of shock. * * * Mr. Miller had been sitting on a chair, had slid off of the chair on to the floor maintaining a blank stare on his face, staring straight ahead and we were unable to get any type of verbal response from him at that time.’
“A first aid squad was contacted. Defendant was taken to a hospital.
“Our concern for the treatment of defendant and the patent denial of due process is substantially tempered by our conviction of defendant’s guilt. We now agonize over the necessity for giving an edge to one whom the police authorities reasonably, and very probably correctly, believed to be guilty of a most heinous crime, involving the greatest of all criminal wrongs, murder. But we have no doubt at all of our duty. An overbearing broadside which results in a confession by virtue of intense and mind bending psychological compulsion deserves no better fate at our hands than does the legendary rubber hose. Chambers v. Florida, 309 U. S. 227 [60 S. Ct. 472, 84 *423L. Ed. 716] (1940). We have long cherished a determination that the fair winds of due process shall blow upon the guilty as well as the innocent. We will not here let our gratitude for good police work which ferreted out one who is most probably a murderer, and our abhorrence at the crime he committed, cause us to abandon basic constitutional principles.
“Thus, in the circumstances here, defendant’s confession was involuntary in the constitutional sense and is inadmissible. The error in its- admission requires a reversal and a new trial.
“Broadly based as is our conclusion of law, we need not further wrestle with subordinate problems related to defendant’s claims that the confession was the product of express promises of psychiatric help, such as that there were ‘strongly implied’ promises of an insanity defense and no prison sentence, that the police lied to defendant in order to obtain the confession and so forth. Our determination also makes it unnecessary for us to decide many other issues raised on the appeal.
“Reversed and remanded for a new trial.”
I find myself in full accord with the foregoing opinion and its characterization of the trooper’s tactics as constituting “[a]n overbearing broadside which result [ed] in a confession by virtue of intense and mind bending psychological compulsion.” An aspect of this psychological compulsion which at the same time constitutes an independently sufficient basis for a finding of involuntariness consists of the repeated promises made to the defendant by the trooper that defendant would receive the psychiatric help he needed, not punishment, and that he would not be imprisoned (“that’s [prison] (sic) is not going to solve your problem, is it?”) because he was not a “criminal,” but only had a “problem,” impliedly a mental one; society, not defendant, was at fault because it had not properly treated him in prior institutionalization. See the quotation from Malloy *424v. Hogan, supra, at p. 411 above (378 U. S. at 7, 84 S. Ct. 1489); State v. Smith, supra, 32 N. J. at 542; State v. Cole, 136 N. J. L. 606, 611 (E. & A. 1947).
While length of time and place of interrogation are conditions bearing upon the totality of circumstances to which consideration must be given, and it is true that only the last hour of the confrontation was at a State police station, this episode had been immediately preceded by almost an hour of interrogation at defendant’s work place and about two hours of detention at the police station in the early •morning hours. But the significant thing here is that only a small part of the taped episode was interrogation in any legitimately investigative sense. For the most part, it was plainly, bluntly and persistently an effort to break the will of the defendant. The tactic was an appeal to his emotions and his need for medical help and the misleadingly comforting assurances of the trooper, as defendant’s “brother,” hypnotically reiterated at length, that he was not a “criminal” requiring imprisonment and that he must unburden himself as a prelude to the “help” which would be provided by the State to assuage his “problem.” Cf. Leyra v. Demo, 347 U. S. 556, 560-561, 74 S. Ct. 716, 98 L. Ed. 948 (1954); and see Miranda v. Arizona, supra, 384 U. S. at 450, 86 S. Ct. 1602. The total physical collapse of the defendant at the end, after repeated earlier assurances by defendant to the trooper that he was not involved in the crime, cogently evidences the effect of the trooper’s blandishments on defendant’s mind and emotions. A will resolved not to confess was coerced into one to do just that.
The opinion of the Appellate Division notes that “[t]he tape transcript must be read in its entirety for its full aroma to be savored.” The members of this Court have not only read the transcript but listened to the entire tape. The experience, to me, corroborates the impression of the Appellate Division as to the gentleness of the commencement of the colloqu3r, but it also communicates the inception and gradual increase of a tone of urgency, insistence and pres*425sure in the trooper’s voice as he bears down on his subject. If the sole object of police interrogation is detection and procurement of evidence of crime the trooper cannot be faulted. But if the values underlying the privilege against self-incrimination in a civilized society still live, as assuredly they do, see State v. Deatore, 70 N. J. 100 (1976); McCormick on Evidence, op. cit., supra, at p. 315, they may not be eroded by judicial solicitude for the affirmance of a conviction of an apparently guilty person at the expense of a dispassionate evaluation of a contention that a confession was extracted from a defendant by overbearing his free will. In my judgment, the State has fallen far short of its obligation to establish beyond a reasonable donbt (if at all) that that did not happen in the case of this defendant. If I am right, the conviction must be reversed on that ground per se. Chapman v. California, 386 U. S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Although not strictly material to the issue before us, there is a substantial possibility that even were defendant acquitted because of the inadmissibility of the confession, he could be committed civilly under B. 4:74E7 in view of his prior mental history, the circumstances in the instant ease pointing to his implication in this murder and the “preponderance-of-the evidence” rule applicable in commitment law, as distinguished from that of “beyond a reasonable doubt” in criminal cases. See State v. Krol, 68 N. J. 236, 257 (1965). Accordingly, the alternative potentialities facing the Court in determining this matter •are not necessarily confined to affirming the conviction or setting the defendant free.2
II
The circumstances attending the substitution of an alternate juror during the deliberations of the jury are *426recounted in Justice Sullivan’s opinion for the Court. In my view, the practice rule, B. 1:8-2(d), is not facially invalid, but is susceptible of unconstitutional application, as I believe occurred in this instance.
It is obvious that if a jury which renders a verdict has consulted with one not a juror in the course of its deliberations that verdict is tainted by the potential influence in the ultimate verdict of the participation of the stranger in the deliberations. In principle, the instant situation cannot be differentiated from that just posed. Eleven of the jurors who concurred in the verdict were subject for an hour and a half to the views, opinions and influence of the juror subsequently excused. In effect, he was a 13th juror. See People v. Ryan, 19 N. Y. 2d 100, 278 N. Y. S. 2d 199, 224 N. E. 2d 710 (Ct. App. 1966); A. B. A. Standards Relating to Trial by Jury (Approved Draft 1968) § 2.7 at 81-82. But see People v. Collins, 17 Cal. 3d 687, 131 Cal. Rptr. 782, 552 P. 2d 742 (Sup. Ct. 1976), cert. den. 429 U. S. 1077, 97 S. Ct. 820, 50 L. Ed. 2d 796 (1977). Indeed, those eleven jurors were exposed to the influence of the discharged juror for a substantially longer period of time than their deliberations with the substituted juror. Moreover, the substituted juror had not been exposed to the deliberations, views and influence of the eleven jurors mutually expressed and exerted before he came upon the scene.
In the present circumstances, an admonition to a jury that they forget what happened before and start their deliberations anew with the substituted juror cannot excise the taint of an ultimate verdict in respect of the two objections cited above.
I have indicated that I do not believe the practice rule to be facially invalid. By this I mean that if a juror had to be excused at a very early stage in the deliberations the trial judge could exercise his discretion as to whether the period elapsed was so short that, upon instructions to the reconstituted jury to begin deliberations entirely anew, the *427extraneous factors would become de minimis and the right of jury trial substantially untrammeled. Possibly, also, original deliberations, although extended beyond the very early stages, prior to substitution of a juror, could be held constitutionally harmless on motion for a new trial or on appeal if the deliberations of the reconstituted jury went on for many times the period prior to substitution. Such a situation might have been presented here if the jury deliberations after the substitution and prior to the verdict had extended for a period of days.
I regard the practical utility of the practice rule to warrant saving it from a declaration of facial invalidity. However, fidelity to the constitutional right of jury trial impels me to hold the rule unconstitutional as here applied, for the reasons stated above.
I agree with the Court’s disposition of the question raised by defendant concerning the failure to read the supplemental charge to the substituted juror.
I would affirm the judgment of the Appellate Division.
If there are contested issues as to subordinate facts involving credibility of witnesses, deference may be accorded any fact-findings thereon by the trial judge. See State v. Bowden, 62 N. J. Super. 339, 349 (App. Div.) certif. den. sub nom. State v. Duffy, 33 N. J. 385 (1960).
In transcript quotations hereafter, ‘T:’ signifies the question or comment from the. trooper,' and ‘D:’ signifies 'defendant’s response. Emphasis in any of the quotations which follow , from the tape transcript is, of course, added.
I here assume, as is not at all certain, that defendant could not be convicted at a retrial without use of the confession.