Jackson v. Denno, 378 U.S. 368 (1964)

MR. JUSTICE CLARK, dissenting.

The Court examines the validity, under the Fourteenth Amendment, of New York’s procedure to determine the voluntariness of a confession. However, as I read the record, New York’s procedure was not invoked in the trial court or attacked on appeal, and is not properly before us. The New York procedure providing for a preliminary hearing could be set in motion, and its validity questioned, only if objection was made to the admissibility of the confession. It is clear that counsel for petitioner in the trial court -- a lawyer of 50 years’ trial experience in the criminal courts, including service on the bench -- did not object to the introduction of the statements made by the petitioner or ask for a preliminary hearing. His contention was that the circumstances of the sedation went to the "weight" of the statements, not to their admissibility. This is shown by his cross-examination of the State’s doctor, and by the dialogue at the bench thereafter.{1} And, even after this dialogue, petitioner’s counsel never made any motion to strike the statements or any objection to their use by the jury, but challenged only the weight to be given them. This is further shown by his failure to raise the constitutionality of New York’s practice at any time before verdict, or thereafter on his motion for a new trial. Nor was it raised or passed upon by New York’s Court of Appeals. That court’s amended remittitur shows that the constitutional questions passed upon were whether the "confession was coerced" and whether the judge erred in failing to instruct the jury that, "in determining the voluntary nature of the confession, they were to consider his physical condition at the time thereof." 10 N.Y.2d 816, 221 N.Y.S.2d 521, 178 N.E.2d 234.

Still, the Court strikes down the New York rule of procedure which we approved in Stein v. New York, 346 U.S. 156 (1953). The trial judge had no opportunity to pass upon the statements, because no objection was raised and no hearing was requested. I agree with the Court that "[a] defendant objecting to the admission of a confession is entitled to a fair hearing. . . ." However, I cannot see why the Court reaches out and strikes down a rule which was not invoked, and which is therefore not applicable to this case. In reaching out for this question, the Court apparently relies on Fay v. Noia, 372 U.S. 391 (1963). While that case seems to have turned into a legal "Mother Hubbard," I fail to see how it could govern this situation.

The Court seems to imply that New York’s procedure "injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness." I think not. The judge clearly covered this in his charge:

If you determine that it was a confession, the statement offered here, and if you determine that Jackson made it, and if you determine that it is true; if you determine that it is accurate, before you may use it, the law still says you must find that it is voluntary, and the prosecution has the burden of proving that it was a voluntary confession.

This language is just the opposite of that used in Rogers v. Richmond, 365 U.S. 534 (1961), the case upon which the Court places principal reliance.{2} There, the jurors were told to use the confession if they found it "in accord with the truth. . . ." And Connecticut’s highest court held that the question was whether the conduct "induced the defendant to confess falsely that he had committed the crime being investigated." State v. Rogers, 143 Conn. 167, at 173, 120 A.2d 409, at 412. Here, the judge warned the jury that, even if they found the statements true, they must also find them voluntary before they may use them. And the proof of voluntariness was placed on the State. As my Brother BLACK says, the Court, in striking down New York’s procedure, thus "challenge[s] the soundness of the Founders’ great faith in jury trials." I too regret this "downgrading of trial by jury," and join in Section I of Brother BLACK’s opinion. To me, it appears crystal clear that the charge amply protected Jackson from the possibility that the jury might have confused the question of voluntariness with the question of truth. Dependence on jury trials is the keystone of our system of criminal justice, and I regret that the Court lends its weight to the destruction of this great safeguard to our liberties.

But even if the trial judge had instructed the jury to consider truth or falsity, the order here should be for a new trial, as in Rogers v. Richmond, supra. There, the Court of Appeals was directed to hold the case a reasonable time "in order to give the State opportunity to retry petitioner. . . ." At 549. (Emphasis supplied.) But the Court does not do this. It strikes down New York’s procedure, and then tells New York -- not to retry the petitioner -- merely to have the trial judge hold a hearing on the admissibility of the confession and enter a definitive determination on that issue, as under the Massachusetts rule. This does not cure the error which the Court finds present. If the trial court did so err, this Court is making a more grievous error in amending New York’s rule here and then requiring New York to apply it ex post facto without benefit of a full trial. Surely, under the reasoning of the Court, the petitioner would be entitled to a new trial.

Believing that the constitutionality of New York’s rule is not ripe for decision here, I dissent. If I am in error on this, then I join my Brother HARLAN. His dissent is unanswerable.

1. The law in Nevada on this point apparently has not been settled. Although State v. Williams, 31 Nev. 360, 375-376, 102 P. 974, 980-981 (1909), appeared to establish the "orthodox" rule, the Supreme Court of Nevada, in State v. Fouquette, 67 Nev. 505, 533-534, 221 P.2d 404, 419 (1950), cert. denied, 341 U.S. 932 (1951), stated that the question was still open, and that the Williams case had not decided it. The trial judge in the Fouquette case applied the Massachusetts rule.

2. See 3 Wigmore, Evidence (3d ed. 1940), § 861.