Jackson v. Denno/Dissent Clark

by Tom C. Clark

United States Supreme Court

378 U.S. 368

Jackson  v.  Denno

 Argued: Dec. 9 and 10, 1963. --- Decided: June 22, 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, 73 S.Ct. 1077 (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, 83 S.Ct. 822 (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, 81 S.Ct. 735 (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 * * *.' 365 U.S. at 549, 81 S.Ct. at 744. (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 hol 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.

Mr. Justice HARLAN, whom Mr. Justice CLARK and Mr. Justice STEWART join, dissenting.

Even under the broadest view of the restrictive effect of the Fourteenth Amendment, I would not have thought it open to doubt that the States were free to allocate the trial of issues, whether in criminal or civil cases, between judge and jury as they deemed best. The Court now holds, however, that New York's long-standing practice of leaving to the jury the resolution of reasonably disputed factual issues surrounding a criminal defendant's allegation that his confession was coerced violates due process. It is held that the Constitution permits submission of the question of coercion to the trial jury only if preceded by a determination of 'voluntariness' by the trial judge-or by another judge or another jury not concerned with the ultimate issue of guilt or innocence. ^[3]

The Court does make one bow to federalism in its opinion: New York need not retry Jackson if it, rather than the federal habeas corpus court, now finds, in accordance with the new ground rules, the confession to have been voluntary. I doubt whether New York, which in Jackson's original trial faithfully followed the teachings of this Court which were then applicable, will find much comfort in this gesture.

Today's holding is the more surprising because as recently as 1953 the Court held precisely the opposite in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077 and in 1958 and again in 1959 implicitly accepted the constitutionality of the New York rule, Payne v. Arkansas, 356 U.S. 560, 568, note 15, 78 S.Ct. 844, 850; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207. ^[4]

I respectfully dissent.

The narrow issue of this case should not be swept up and carried along to a conclusion in the wake of broader constitutional doctrines that are not presently at stake. New York and the States which follow a like procedure do not contest or tacitly disregard either of the two 'axioms' with which the Court commences its argument, ante, pp. 376-377. It is not open to dispute, and it is not disputed here, that a coerced confession may not be any part of the basis of a conviction. Nor is there question that a criminal defendant is entitled to a 'fair hearing and a reliable determination' of his claim that his confession was coerced. Id., at 377. The true issue is simply whether New York's procedure for implementing those two undoubted axioms, within the framework of its own trial practice, falls below the standards of fair play which the Federal Constitution demands of the States.

New York's method of testing a claim of coercion is described in the Court's opinion, ante, at pp. 377-378. It requires the trial judge 'to reject a confession if a verdict that it was freely made w uld be against the weight of the evidence.' People v. Leyra, 302 N.Y. 353, 362, 98 N.E.2d 553, 558. The heart of the procedure, however, is reliance upon the jury to resolve disputed questions of fact concerning the circumstances in which the confession was made. Where there are facts 'permitting different conclusions it is left for the jury, under a proper submission, to say whether or not there was coercion * * *.' Id., 302 N.Y. at 364, 98 N.E.2d at 559.

This choice of a jury rather than a court determination of the issue of coercion has its root in a general preference for submission to a jury of disputed issues of fact, a preference which has found expression in a state legislative determination, see New York Code of Criminal Procedure, § 419, ^[5] and in the practice in that State 'followed from an early day in a long line of cases.' People v. Doran, 246 N.Y. 409, 416, 159 N.E. 379, 381, see cases cited therein at 416-417, 159 N.E. at 381-382. Thus by statutory enactment as well as by undeviating judicial approbation, New York has evinced a deliberate procedural policy. One may wonder how this Court can strike down such a deep-seated state policy without giving a moment of attention to its origins or justification.

At the core of this decision is the Court's unwillingness to entrust to a jury the 'exceedingly sensitive task,' ante, p. 390, of determining the voluntariness of a confession. In particular, the Court hypothesizes a variety of ways in which the jury, wittingly or not, 'may' have disregarded its instructions, and comes up with two possibilities: (1) that the jury will base a determination that a confession was voluntary on belief that it is true; (2) that, despite its belief that a confession was involuntary, the jury will rely on the confession as a basis for concluding that the defendant is guilty. These are, of course, possibilities that the New York practice, in effect the jury system, will not work as intended, not possibilities that, working as it should, the system will nevertheless produce the wrong result.

The Court's distrust of the jury system in this area of criminal law stands in curious contrast to the many pages in its reports in which the right to trial by jury has been extolled in every context, and affords a queer basis indeed for a new departure in federal regulation of state criminal proceedings. The Court has repeatedly rejected 'speculation that the jurors disregarded clear instructions of the court in arriving at their verdict,' Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 45 A.L.R.2d 1308, ^[6] as a ground for reversing a conviction or, a fortiori, as the reason for adopting generally a particular trial practice. 'Our theory of trial relies upon the ability of a jury to follow instructions.' Ibid. Two of the Court's past cases, especially, show how foreign the premises of today's decision are to principles which have hitherto been accepted as a matter of course.

In Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302, the appellant was charged with murder in the first degree. His defense was insanity.

'In conformity with the applicable state law, the trial judge instructed the jury that, although appellant was charged with murder in the first degree, they might determine that he had committed a lesser crime included in that charged. They were further instructed that his plea of not guilty put in issue every material and necessary element of the lesser degrees of homicide, as well as of the offense charged in the indictment. The jury could have returned any of five verdicts: (1) guilty of murder in the first degree, if they found beyond a reasonable doubt that appellant did the killing purposely and with deliberate and premeditated malice; (2) guilty of murder in the second degree, if they found beyond a reasonable doubt that appellant did the killing purposely and maliciously, but without deliberation and premeditation; (3) guilty of manslaughter, if they found beyond a reasonable doubt that appellant did the killing without malice or deliberation, but upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible; (4) not guilty, if, after a careful consideration of all the evidence, there remained in their minds a reasonable doubt as to the existence of any of the necessary elements of each degree of homicide; and (5) not guilty by reason of insanity, if they found beyond a reasonable doubt that appellant was insane at the time of the offense charged.' Id., 343 U.S. at 793-794, 72 S.Ct. at 1005 (footnotes omitted).

These complex instructions, ^[7] which required the jurors to keep in mind and apply the most subtle distinctions, were complicated still further by the law of Oregon regarding the burden of proof on an insanity defense:

'* * * (The) instructions, and the charge as a whole, make it clear that the burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se-an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict. On this issue appellant had the burden of proof under the statute in question here.' Id., 343 U.S. at 795-796, 72 S.Ct. at 1006 (footnotes omitted).

The jury found the appellant guilty and sentenced him to death.

On appeal, the appellant argued that 'the instructions may have confused the jury as to the distinction between the State's burden of proving premeditation and the other elements of the charge and appellant's burden of proving insanity.' Id., 343 U.S. at 800, 72 S.Ct. at 1008. This Court responded:

'We think the charge to the jury was as clear as instructions to juries ordinarily are or reasonably can be, and, with respect to the State's burden of proof upon all the elements of the crime, the charge was particularly emphatic. Juries have for centuries made the basic decisions between guilt and innocence and between criminal responsibility and legal insanity upon the basis of the facts, as revealed by all the evidence, and the law, as explained by instructions detailing the legal distinctions, the placement and weight of the burden of proof, the effect of presumptions, the meaning of intent, etc. We think that to condemn the operation of this system here would be to condemn the system generally. We are not prepared to do so.' Ibid.

Every factor on which the Court relies in the present case to show the inadequacy of a jury verdict on the coerced confession issue and some factors which the Court does not mention, were present in Leland: the factual issue was extremely complex, and required the jury to make a hazardous inference concerning the defendant's mental state, which inference in turn depended on exceedingly subtle dis inctions; the instructions to the jury were themselves complex, their complexity being necessitated by the complexity of the issues; the crime charged was particularly heinous and likely to have aroused the community's and, in particular, the jurors' anger; the defendant had beyond question committed the act charged; the possible, and as it turned out actual, penalty was death.

I am at a loss to understand how the Court, which refused to recognize the possibility of jury inadequacy in Leland, can accept that possibility here not only as a basis for reversing the judgment in this case-involving far simpler questions of fact and easily understood instructions-but as the premise for invalidating a state rule of criminal procedure of general application resting on an entirely rational state policy of long standing. Why is it not true here, as it was in Leland, that 'to condemn the operation of * * * (the jury) system here would be to condemn the system generally'? Ibid.

The second case is Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278. There the petitioner was tried jointly with four codefendants by federal authorities for a federal crime. The Government introduced in evidence the confession of another defendant, which was made after the conspiracy had ended and could not, therefore, be used against the petitioner. The jury was warned when the confession was admitted and again in the charge that it was to be considered only against the confessor and not against his codefendants. In fact, however, by reason of repeated express references to the petitioner and extensive corroborative detail, the confession implicated the petitioner as completely as it did the confessor. Rejecting the petitioner's contention that admission of the confession was reversible error, the Court said:

'It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.' Id., 352 U.S. at 242, 77 S.Ct. at 300.

In Delli Paoli, the jury was instructed that it might give such credence as it chose to a clearly voluntary and apparently reliable confession when it considered its verdict as to one defendant, but that it must entirely disregard the same confession when it considered its verdict as to any other defendant; this despite the fact that the crime charged was a conspiracy and the confession named other defendants and described their acts in detail. In the present case, the Court believes that a jury 'may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession,' ante, p. 382. How can it well be said that this policy is more difficult for a jury to understand than the policy behind the rule applied in Delli Paoli? So too, the Court finds danger in this case 'that matters pertaining to the defendant's guilt will infect the jury's findings of fact bearing upon voluntariness.' Id., at 383. But was there not greater danger in Delli Paoli that one defendant's confession of his and his codefendants' guilt would infect the jury's deliberations bearing on the guilt of the codefendants? And was it not more 'difficult, if not impossible,' ante, p. 389, for the jurors to lodge the evidence in the right mental compartments in a trial of five defendants than here, in a trial of one?

The danger that a jury will be unable or unwilling to follow instructions is not, of course, confined to joint trials or trials involving special issues such as insanity or the admissibility of a confession. It arises whenever evidence admissible for one purpose is inadmissible for another, and the jury is admonished that it may consider the evidence only with respect to the former. E.g., Moffett v. Arabian American Oil Co., Inc., 2 Cir., 184 F.2d 859. More broadly, it arises every time a counsel or the trial judge misspeaks himself at trial and the judge instructs the jury to disregard what it has heard. E.g., Carr v. Standard Oil Co., 2 Cir., 181 F.2d 15. In short, the fears which guide the Court's opinion grow out of the very nature of the jury system.

Jury waywardness, if it occurs, does not ordinarily trench on rights so fundamental to criminal justice as the right not to be convicted by the use of a coerced confession. The presence of a constitutional claim in this case, however, does not provide a valid basis for distinguishing it from the other situations discussed above. There is not the least suggestion in the Court's opinion that the nature of the claim has anything to do with the trustworthiness of the evidence involved; nor could there be, since the Court's rule is entirely unconnected with the reliability of a confession. Nor, as the Delli Paoli and Leland cases amply attest, are factual issues underlying constitutional claims necessarily more beyond the jury's competence than issues underlying other claims which, albeit nonconstitutional, are nevertheless of equally vital concern to the defendant involved. Finally, Delli Paoli was tried in the federal courts, where this Court has general 'supervisory authority' over the administration of criminal justice, McNabb v. United States, 318 U.S. 332, 340-341, 63 S.Ct. 608, 612-613, 87 L.Ed. 819, obviating any suggestion that this Court has power to act here which it lacks in other situations.

To show that this Court acts inconsistently with its own prior decisions does not, of course, demonstrate that it acts incorrectly. In this instance, however, the Court's constant refusal in the past to accept as a rationale for decision the dangers of jury incompetence or waywardness, because to do so would be to 'condemn the system generally,' Leland, supra, 343 U.S. at 800, 72 S.Ct. at 1008, does demonstrate the lack of constitutional foundation for its decision. It can hardly be suggested that a rationale which the Court has so consistently and so recently rejected, even as the basis for an exercise of its supervisory powers over federal courts, and which even now it does not attack so much as disregard, furnishes the clear constitutional warrant which alone justifies interference with state criminal procedures.

The hollowness of the Court's holding is further evidenced by its acceptance of the so-called 'Massachusetts rule,' see ante, pp. 378-379 and note 8, under which the trial judge decides the question of voluntariness and, if he decides against the defendant, then submits the question to the jury for its independent decision. ^[8] Whatever their theoretical variance, in practice the New York and Massachusetts rules are likely to show a distinction without a difference. Indeed, some commentators, and sometimes the courts themselves, have been unable to see two distinct rules. ^[9]

The Court finds significance in the fact that under the Massachusetts rule 'the judge's conclusions are clearly evident from the record,' and 'his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record.' Ante, pp. 378-379. It is difficult to see wherein the significance lies. The 'judge's conclusions' are no more than the admission or exclusion of the confession. If the confession is admitted, his findings of fact, if they can be ascertained, will, realistically, either have no effect on review of the conviction for constitutional correctness or will serve only to buttress an independent conclusion that the confession was not coerced. Indeed, unless the judge's findings of fact are stated with particularity, the Massachusetts rule is indistinguishable from the New York rule from the standpoint of federal direct or collateral review of the constitutional question. Whichever procedure is used, the reviewing court is required to give weight to the state determination and reverse only if the confessions are coerced as a matter of law. See Lisenba v. California, 314 U.S. 219, 236-238, 62 S.Ct. 280, 289-290, 86 L.Ed. 166; Payne v. Arkansas, 356 U.S. 560, 561-562, 78 S.Ct. 844, 846-847. ^[10]

The heart of the supposed distinction is the requirement under the Massachusetts rule that the judge resolve disputed questions of fact and actually determine the issue of coercion; under the New York rule, the judge decides only whether a jury determination of voluntariness would be 'against the weight of the evidence.' See, supra, p. 428. Since it is only the exclusion of a confession which is conclusive under the Massachusetts rule, it is likely that where there is doubt—the only situation in which the theoretical difference between the two rules would come into play -a trial judge will resolve the doubt in favor of admissibility, relying on the final determination by the jury.

The fundamental rights which are a part of due process do not turn on nice theoretical distinctions such as those existing between the New York and Massachusetts rules.

My disagreement with the majority does not concern the wisdom of the New York procedure. It may be that in the abstract the problems which are created by leaving to the jury the question of coercion should weigh more heavily than traditional use of the jury system. Be that as it may, '(t)he states are free to allocate functions as between judge and jury as they see fit.' Stein, supra, 346 U.S. at 179, 73 S.Ct. at 1090. I, like the Court in Stein, believe that this Court has no authority to 'strike down as unconstitutional procedures so long established and widely approved by state judiciaries, regardless of our personal opinion as to their wisdom.' Ibid. This principle, alone here relevant, was founded on a solid constitutional approach the loss of which will do serious disservice to the healthy working of our federal system in the criminal field.

It should not be forgotten that in this country citizens must look almost exclusively to the States for protection against most crimes. The States are charged with responsibility for marking the area of criminal conduct, discovering and investigating such conduct when it occurs, and preventing its recurrence. In this case, for example, the crime charged-murder of a policeman who was attempting to apprehend the defendant, in flight from an armed robbery-is wholly within the cognizance of the States. Limitations on the States' exercise of their responsibility to prevent criminal conduct should be imposed only where it is demonstrable that their own adjustment of the competing interests infringes rights fundamental to decent society. The New York rule now held unconstitutional is surely not of that character.

A final word should be said about the separate question of the application of today's new federally imposed rule of criminal procedure to trials long since concluded. The Court apparently assumes the answer to this question, for I find nothing in its opinion to suggest that its holding will not be applied retroactively.

To say, as the Court does, that New York was 'not without support in the decisions of this Court,' ante, p. 1790, when it tried Jackson according to its existing rules does not give the State its due. Those rules had been directly considered and explicitly approved by this Court in Stein just seven years before Jackson was tried. They were implicitly reaffirmed by this Court in Spano, supra, little more than one year before the trial. If the concept of due process has as little stability as this case suggests, so that the States cannot be sure from one year to the next what this Court, in the name of due process, will require of them, surely they are entitled at least to be heard on the question of retroactivity. See my dissenting opinion in Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80.

Notes

1. 'The Court: Judge Healy raised the point in cross-examination that sedation of a kind was administered to the patient.
2. 'No confession or admission of an accused is admissible in evidence unless made freely and voluntarily and not under the influence of promises or threats. The fact that a confession was procured by the employment of some artifice or deception does not exclude the confession if it was not calculated, that is to say, if the artifice or deception was not calculated to procure an untrue statement. The motive of a person in confessing is of no importance provided the particular confession does not result from threats, fear or promises made by persons in actual or seeming authority. The object of evidence is to get at the truth, and a trick or device which has no tendency to produce a confession except one in accordance with the truth does not render the confession inadmissible * * *. The rules which surround the use of a confession are designed and put into operation because of the desire expressed in the law that the confession, if used, be probably a true confession.' 365 U.S. at 542, 81 S.Ct. at 740.
3. Whether or not the Court would permit the trial jury to render a special verdict on the issue of coercion and, having found the confession involuntary, go on to hear the evidence on and determine the question of guilt is unclear. See ante, p. 379-380 and p. 391, n. 19.
4. Indeed, in his petition for certiorari to review the judgment of the New York Court of Appeals, 10 N.Y.2d 780, 219 N.Y.S.2d 621, 177 N.E.2d 59, which this Court denied, 368 U.S. 949, 82 S.Ct. 390, the petitioner did not even challenge the constitutionality of the New York procedure.
5. 'On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court.'
6. The Court does not question the sufficiency of the trial judge's instructions in this case.
7. Their full complexity is not revealed even by the passage quoted. Since the law permitted two different verdicts of guilty of murder in the first degree, the difference being the inclusion or not of a recommendation as to punishment, a total of six possible verdicts was submitted to the jury for its consideration. Leland v. Oregon, supra, 343 U.S. at 793, n. 4, 72 S.Ct. at 1005.
8. E.g., Commonwealth v. Sheppard, 313 Mass., 590, 604, 48 N.E.2d 630, 639-640.
9. The majority of this Court itself proclaims its inability to distinguish clearly between the States which do and those which do not follow the rule now found by it to be constitutionally required. See
10. If the Court's point is that under the New York rule there is no way of knowing whether the jury has addressed itself specially to the coerced confession issue at all the point simply raises again the fear of jury error discussed in the first section of this opinion.