UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bastian, Senior Circuit Judge, and Burger and Leventhal, Circuit Judges. Leventhal, Circuit Judge (concurring in result).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
More than 20 years ago Appellant was tried and convicted on a charge of robbery. *fn1 No appeal was taken. In 1964 Appellant first attacked his 1946 conviction by a petition in the District Court, Clifton v. United States, Civil No. 2316-64, which was treated by the court as a petition for a writ of coram nobis. *fn2 That petition was denied. Following Jackson v. Denno (supra) a second petition was filed in 1965. In this second petition from which the instant appeal is taken Appellant rests on the single ground that the District Court in the 1946 trial had not afforded him an independent hearing such as is now required to pass on the voluntariness of the confession which was admitted in evidence against him. *fn3
Search for the stenographic verbatim record of the 1946 trial was unavailing but the District Judge who presided at that trial heard Appellant's petition and relied on detailed personal longhand notes of the trial which he had preserved. On the basis of these notes the District Judge made findings that he had in fact conducted an independent hearing on the issue of voluntariness of the confession and "found on the basis of the evidence that the confession was voluntary . . . and admitted the confession." Accordingly, the District Judge denied the contemporaneous petition, United States v. Clifton, 239 F. Supp. 49, 51 (D.D.C. 1965). *fn4
The question to be resolved is whether the procedures applied in the 1946 trial and the instructions to the jury were "fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession . . .," Jackson v. Denno (supra) 378 U.S. at 391, 84 S. Ct. at 1788.
The Government's position is that the District Judge who tried the case in 1946 made findings on the basis of his 1946 longhand notes, that he conducted an independent hearing on voluntariness out of the presence of the jury before deciding to submit that issue to the jury, and that this procedure, generally conforming to the so-called Massachusetts procedure approved in Jackson, fully satisfied the requirements of Jackson.
Appellant contends that the Court in Jackson expressed doubts as to the procedure in this jurisdiction. *fn5 He thus argues that "by stating that he [the District Judge] followed the 'traditional practice' in this district, the court . . . has virtually conceded that the procedures utilized in determining the voluntariness of appellant's confession do not meet the constitutional criteria laid down in Jackson." We do not agree. Doubts as to past practice do not necessarily mean that the requirements of Jackson were not met in Appellant's case. See Mitchell v. Stephens, 353 F.2d 129, 142 (8th Cir. 1965).
The critical issue raised by Appellant is that "the decision in Jackson v. Denno . . . requires that the trial judge, in addition to holding a preliminary hearing out of the presence of the jury, make a specific finding that the confession was voluntary beyond a reasonable doubt." Appellant also contends that the District Court did not instruct the jury that it was required to find the confession voluntary beyond a reasonable doubt in order to rely on it. The fact is that the Supreme Court did not pass on either of these questions in Jackson.
Jackson v. Denno requires only that the procedures applied in these circumstances must be "fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession," 378 U.S. at 391, 84 S. Ct. at 1788; it made no attempt to define the standard to be applied by the trial judge in his preliminary determination of voluntariness, *fn6 and the Court expressly disclaimed any ruling on jury instructions concerning the consideration of voluntariness, 378 U.S. at 375 n. 5, 84 S. Ct. at 1779.
In his charge to the jury in the 1946 trial, 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 that 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.
The District Judge, however, did not in 1946 or in the hearing from which this appeal is taken, spell out by what standard he evaluated the confession before submitting it to the jury. We are not unmindful that the Fourth Circuit has held that the District Judge must find the confession voluntary beyond a reasonable doubt when making his preliminary determination. United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965). *fn7 The opinion of that court contains no extended discussion or treatment of the vexing problem left unresolved by Jackson. The determination of whether a confession is voluntary is, in substance, a ruling on its admissibility as evidence. State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 249, 133 N.W.2d 753, 762 (1965), cert. denied, 384 U.S. 1017, 86 S. Ct. 1941, 16 L. Ed. 2d 1039 (1966); State v. Keller, 240 Or. 442, 448, 402 P.2d 521, 525 (1965). Nowhere in the law -- civil or criminal -- has it ever been thought that a trial judge, in passing on admissibility of evidence in a jury case, must use the reasonable doubt standard. *fn8 The Supreme Court in Jackson pointedly failed to make any comment on this crucial issue, as Mr. Justice Black sharply noted in his dissenting opinion, 378 U.S. at 404-405, 84 S. Ct. at 1795-1796.
It is one thing to call for this high standard of proof from the ultimate fact finders and quite another to ask that this issue be resolved preliminarily by the judge beyond a reasonable doubt contrary to all the law governing admissibility of evidence. We think Mr. Justice Black was correct in suggesting that to vest this essentially fact finding function in the judge would constitute a "downgrading of trial by jury," 378 U.S. at 405, 84 S. Ct. at 1796 (dissenting opinion). We are not persuaded that it is more logical or reasonable that a confession, alone among all the myriad of evidentiary material, be singled out for a unique standard of appraisal. It would be difficult to distinguish, so far as jury impact is concerned, the weight of a confession from other forms of damaging utterance -- inconsistent statements and admissions, for example, heard by persons other than the police. Cf. Ashcraft v. State of Tennessee, 327 U.S. 274, 66 S. Ct. 544, 90 L. Ed. 667 (1946). *fn9 Under the Massachusetts procedure we see no basis for a special and unique "admissibility" standard which places the judge in the temporary role of a "juror," denigrating the historic fact finding role of jurors.
The concurring opinion views Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568 (1897), as the source of the strict "reasonable doubt" standard for trial judges in the preliminary determination of voluntariness required under Jackson for the so-called Massachusetts procedure. The pertinent language in Bram is as follows:
The rule is . . . that, in order to render a statement admissible, the proof must be . . . sufficient to establish that the making of the statement was voluntary ...