(dissenting). I dissent. I cannot concur with the majority of the court in its conclusion that the defendant’s admissions made in and near the Sears parking lot subsequent to 4:15 p.m. on December 9, 1971, were properly received in evidence. Although it is clear from the record that the trial judge conducted the proceedings with extraordinary competence and thoroughness, and with full appreciation of the constitutional issues, I do not believe that his ruling which permitted the introduction of the evidence was constitutionally permissible. Due process of law required the exclusion of the evidence.1 Neither can I concur entirely in the reasoning of Justice Kaplan, as to this issue, in his dissenting opinion.
As to the second principal issue, whether the defendant’s statements to the police at the hospital were admis*723sible in evidence, I disagree with the majority and I concur with the conclusion and reasoning of Justice Kaplan in his dissenting opinion, viz.: that this evidence was not admissible even for the limited purpose of impeachment of the defendant.
1. In light of some of the differences between the majority view and the dissent of Justice Kaplan, particularly as expressed in part II, section 4, of the majority opinion, I feel compelled to explore the standards of appellate review which should be applied by this court on issues such as are presented here. It is necessary to decide what standards are appropriate, not only in the hope of reaching the correct result in this case, but also for the sake of evenhanded justice in similar appeals. This court must have regard for two obligations in particular: its responsibility as an appellate court to reverse for errors of law, and its responsibility to defer where appropriate to findings of fact as made by the triers of fact at the trial level.
A defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, on an involuntary confession. Rogers v. Richmond, 365 U. S. 534, 540-541 (1961). The defendant here presses the constitutional issue by motions to suppress his admissions from evidence. These motions, and the inherent voluntariness issue, like all questions as to the admissibility of evidence, were for the judge’s (not the jury’s) determination. Lego v. Twomey, 404 U. S. 477, 489-490 (1972).2
In order to meet the constitutionally required standards of admissibility the burden is on the Commonwealth to *724prove, at least by a preponderance of the evidence, that a confession was voluntary. Lego v. Twomey, 404 U. S. 477, 489 (1972).3 The question whether a confession was voluntarily given and rightly admitted presents a two-step analysis for an appellate court. First, the appellate court must determine whether the trial court’s subsidiary findings of fact are supportable in evidence, and are warranted. Second, and of crucial importance, assuming the findings are warranted, the appellate court must independently determine whether admission of a confession is constitutionally permissible on the facts as found and accepted.
Where the facts are disputed, the resolution of such conflicts is for the judge and the appellate court must accept his findings. It is not for the reviewers to reconsider decisions of fact, since those decisions concern appraisals of the credibility of witnesses. This author, in a concurring opinion in Commonwealth v. Murphy, 362 Mass. 542, 550 (1972),4 phrased it this way: “We cannot properly be asked to revise a judge’s subsidiary findings of fact, where they are warranted by the evidence, or to review the weight of the evidence related to the findings.” Like the United States Supreme Court, this court “does not sit as in nisi prius to appraise contradictory factual questions.” Ker v. California, 374 U. S. 23, 34 (1963).
However, the appellate court is bound to review the ultimate conclusions of a judge where those conclusions *725are of constitutional moment. This author expressed it this way in the concurring opinion in the Murphy case, supra: “ [T]he ultimate findings and rulings of a judge may give rise to a meaningful appeal, even in a case where his subsidiary findings are beyond practical challenge. This is true because the ultimate conclusions of a judge on identification issues may be of constitutional proportions. This court must, where justice requires, substitute its judgment for that of a trial judge at the final stage. . . . The mere recital of appropriate phrases denoting constitutional acceptability may serve only to obscure error in admitting the evidence.” 362 Mass. at 551 (1972).
Mr. Justice Harlan, quoting from Watts v. Indiana, 338 U. S. 49, 51-52 (1949), expressed the principle as follows: “ [Tjhere has been complete agreement that any conflict in testimony as to what actually led to a contested confession [or to a contested arrest] is not this Court’s concern. Such conflict comes here authoritatively resolved by . . . [the trial judge]” (citations omitted). Beck v. Ohio, 379 U. S. 89, 100 (1964) (Harlan, J., dissenting).
2. Examining the ultimate issue of voluntariness here, I conclude that the admissions5 of the defendant, including his statements made subsequent to 4:15 p.m., should have been excluded. I accept, as I must and should, the judge’s subsidiary findings of fact in their entirety, since these findings were adequately supported in the evidence. However, on the basis of the findings, in my view it cannot constitutionally be concluded that the Commonwealth has sustained its burden of proving voluntariness.
The judge found that the defendant was assaulted, kidnapped, threatened, and interrogated for hours. He *726was in captivity for at least twenty hours between the early evening of December 8, 1971, and the late afternoon of December 9, 1971. He was isolated from family, friends and counsel. Although there was opportunity for him to escape during approximately the last two hours of this time, in my view an inference of voluntariness is not warranted even as to his admissions during those final few hours. I believe this conclusion inescapably follows from an application of the “stream of events” and “cat-out-of-the-bag” reasoning as carefully explored by Justice Kaplan in his separate dissenting opinion.
It follows that I cannot accept the contention of the majority that this court is bound by the judge’s ultimate conclusion of voluntariness, or any inference of his that is synonymous with voluntariness or so broad as necessarily to import a conclusion of voluntariness (e.g., the finding that the defendant was “completely free from fear” after his encounter with the hunters).
Considering all the circumstances of the more than twenty hours of captivity, and accepting all the judge’s subsidiary findings, I do not believe the case permits a conclusion that the Commonwealth has proved by a fair preponderance of the evidence that the defendant’s statements at any time on December 9 were free of the influence of duress, fear and hopelessness caused by his captors.
The ultimate conclusion as to voluntariness requires the application of constitutional principles to facts. It is a conclusion which partakes of policy considerations and as such “is not a matter of mathematical determination. Essentially it invites psychological judgment — a psychological judgment that reflects deep, even if inarticulate, feelings of our society.” Haley v. Ohio, 332 U. S. 596, 603 (1948) (Frankfurter, J., concurring).
As was stated in Lyons v. Oklahoma, 322 U. S. 596, 602 (1944), a case involving the voluntariness of a second confession given twelve hours after a first coerced confession, “The question of whether those confessions subse*727quently given are themselves voluntary depends on the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances. . . . When conceded facts exist which are irreconcilable with such mental freedom, regardless of the contrary conclusions of the triers of fact, whether judge or jury, this Court cannot avoid responsibility for such injustice by leaving the burden of adjudication solely in other hands.”
However, although I concur with Justice Kaplan that the admissions of the defendant should have been excluded, I cannot concur in his entire reasoning. It is neither necessary nor desirable for this court to reach affirmative findings of fact, substantially contrary to the findings of the trial judge.6 Nor is it significant that some of these findings were so broad as to approach the ultimate constitutional conclusion; they were affirmative, substantially contrary to the judge’s findings, and unnecessary. Such a process (of making findings at the appellate level) is markedly different from concluding, as I have, in light of where the burden of proof lay, that certain inferences drawn by the trial judge were not warranted on the facts as found by him. Also, such a *728process is significantly different from concluding, as I have, that the Commonwealth has failed to sustain its burden of proof on the issue of voluntariness. Our hope for evenhanded disposition of such difficult matters, free of appellate whim, requires that we not encroach on the trial judge’s function.7
3. I concur in Justice Kaplan’s dissenting reasoning that the statements of the defendant to the police at the hospital should have been excluded, even for impeachment purposes. I do not believe that Harris v. New York, 401 U. S. 222 (1971), stands for the proposition that wilful violations by the police of the defendant’s right to counsel, such as occurred in the instant case, permit the use of the resulting product of the interrogation for any purpose. See in particular 401 U. S. at 226-232 (Brennan, J., dissenting). Nor do I believe that Oregon v. Hass, 420 U. S. 714 (1975), sufficiently modified the holdings of the Harris case to permit the result reached by the majority.
Both the majority opinion and the dissenting opinion of Justice Kaplan express special concern for the threat to individual rights inherent in vigilantism. This is not to say that the defendant’s rights are any greater because he was a victim of private persons rather than police officers (compare the statement by Kaplan, J., supra, that “constitutional protections should have been accorded to the accused with particular scruple”). Nevertheless, it is a fair inference that the threat of vigilantism to constitutional rights is particularly acute at this time of greatly increased violent crime and resulting widespread fear and frustration. It is worth noting that several of the most popularly received recent books and moving pictures dealt with (and, it can be contended, glorified) violent self-help of the kind shown in the instant case.
The evidentiary and constitutional question of voluntariness is not to be confused with the issue of reliability (truth or falsity) of the confession, which is for the jury’s decision. See Jackson v. Denno, 378 U. S. 368, 385-386 (1964); Lego v. Twomey, 404 U. S. 477, 484-485 n. 12 (1972). Also, we note that the Massachusetts rule that the voluntariness issue is to be submitted to the jury, if the judge first finds voluntariness after a hearing, is not of constitutional dimensions. See Commonwealth v. Valcourt, 333 Mass. 706, 710 (1956); La-*724France v. Bohlinger, 499 F. 2d 29, 35-36 (1st Cir. 1974), cert. den. sub nom. LaFrance v. Meachum, 419 U. S. 1080 (1974).
Similarly, the burden of proof is on the government to establish the reasonableness of a warrantless search (Chimel v. California, 395 U. S. 752, 756 [1969]), and to prove reasonableness at least by a preponderance of the evidence. United States v. Matlock, 415 U. S. 164, 177-178, n. 14 (1974).
Both the majority opinion and Justice Kaplan’s dissenting opinion in this case refer to this concurring opinion in the Murphy case. See in particular n. 2 of Justice Kaplan’s dissent.
I note that neither the majority opinion nor the dissenting opinion makes any point of distinguishing “admissions” from “confessions” in the constitutional context concerned here. In this I concur; it would be specious to indulge in variant reasoning or results based on such a distinction.
See, e.g., in Justice Kaplan’s dissenting opinion, supra, the following findings: “On these facts, I conclude that the defendant’s acceptance of the condition that he reveal the gravesite was as much coerced as his initial statements”; “His statements at the Sears parking lot were thus made within a continuing constraint and compulsion”; “[T]he defendant remained under the heel of the kidnappers through the 6:30 p.m. statements”; “So the conclusion is well justified that the coercion which produced the pre-4:15 p.m. statements was also the cause of the post-4:15 statements”; “And here, to repeat, we have the added, overriding factor that the defendant was under great continuing pressure to make the final disclosure of the gravesite as a means of getting free of the kidnappers”; “[H]is further remarks to Heard were nothing but self-comforting braggadocio”; “Rather, the most modest conclusion that emerges from the facts is that the post-4:15 p.m. statements were substantially conditioned and influenced by the coercion directed at the defendant throughout the period during which he was held.”
Concededly other courts, including the Supreme Court of the United States, have approached some cases substantially as Justice Kaplan has treated this one.