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decided: March 15, 1968.


Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1964, No. 1789, in case of Commonwealth ex rel. Leon Butler v. A. T. Rundle, Superintendent.


David Kanner, for appellant.

Michael M. Baylson, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: O'brien

[ 429 Pa. Page 143]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County dismissing appellant's petition for habeas corpus. The petition had originally been filed in 1964 and denied then, but this court, in Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965), remanded for a Jackson-Denno hearing to determine the voluntariness of Butler's confession introduced at trial. The court below found the confession to have been voluntary, and thus dismissed the petition.


The parties have raised the issue of the burden of proof to be applied in testing the voluntariness of a confession. The burden of proof really consists of two separate burdens, the burden of production or going forward, and the burden of persuasion. As to the former, the hearing judge stated at the outset: "The allegation is made by the defendant that the statement was not made voluntarily by him, and so it seems to me that proof or evidence in his behalf should be presented." We are of the opinion that the hearing judge incorrectly placed the burden of production. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964) is relevant. The United States Supreme Court did not require an entire new trial because it felt that the hearing before a judge could satisfactorily take its place. In any trial today where a confession is sought to be introduced, the prosecution must show that it is voluntary. The Supreme Court was merely allowing the parties to conserve time by holding a hearing rather than an entire trial, and it should be clear that the burden of production should not be dependent upon the type of procedure employed.

[ 429 Pa. Page 144]

However, we would not reverse for this reason alone. Although there is some slight discovery advantage in being able to follow the other side's evidence, this is insignificant at a Jackson-Denno hearing where the issue of voluntariness has previously been fully litigated at trial. The primary significance of the burden of production is to end the inquiry when the party with the burden can present no evidence. This rarely, if ever, occurs at Jackson-Denno hearings, where both sides can usually come forward with an account of the circumstances under which the confession was given.*fn1 Such was the case here. The situation where the allocation of the production burden is decisive is the virtually inconceivable one in which neither party presents evidence. Although the allocation in the instant case did not matter in the least, henceforth the burden of production should be on the prosecution.

A much more important question with regard to burden of proof concerns the burden of persuasion. Appellant urges that the trial judge, or the hearing judge in a post-conviction case, must find the confession voluntary beyond a reasonable doubt, citing United States v. Inman, 352 F. 2d 954 (4th Circ. 1965). That case and a number of others have indeed held that the reasonable doubt standard applies to the judge's determination. Yet many other cases have found some other standard to be proper.*fn2 To say that the law is in a state of confusion would be an understatement.

The starting point for an analysis of the problem must be the opinion in Jackson v. Denno, supra. The court was there faced with the New York procedure under which the trial judge, making a preliminary examination

[ 429 Pa. Page 145]

    as to the voluntariness of a confession offered by the prosecution, excludes it if in no circumstances the confession can be deemed voluntary, but leaves to the jury the ultimate determination of its voluntary character as well as its truthfulness, if the evidence presents a fair question as to its voluntariness. The Court, by a 5-4 decision, overruled Stein v. New York, 346 U.S. 156, 73 S. Ct. 1077 (1953), and held that the New York procedure violated the due process clause of the Fourteenth Amendment. It is important that we recognize the vice of the New York procedure. This vice was "the danger that matters pertaining to the defendant's guilt will infect the jury's findings of fact bearing upon voluntariness, as well as its conclusion upon that issue." Jackson, supra, at 383. This would not have been a vice at all if the premise underlying Stein had been accepted by the Jackson court. Stein's premise was that "the exclusion of involuntary confessions is constitutionally required solely because of the inherent untrustworthiness of a coerced confession. It followed from this premise that a reliable or true confession need not be rejected as involuntary. . . ." Jackson, supra, at 383. The Stein view was rejected utterly by Mr. Justice Frankfurter's dissent in that case: "This issue must be decided without regard to the confirmation of details in the confession by reliable other evidence. The determination must not be influenced by an irrelevant feeling of certitude that the accused is guilty of the crime to which he confessed." 346 U.S. at 200. The Jackson court, at 384, characterized the underpinning of Stein as "a short-lived departure from prior views of the Court," and went on to describe the real rationale for the exclusion of involuntary confessions: "It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner

[ 429 Pa. Page 146]

    deemed coercive, but also because of the 'strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will,' Blackburn v. Alabama, 361 U.S. 199, 206-207 [80 S. Ct. 274, 280], and because of '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." Thus, the New York procedure of submitting any disputed issue of voluntariness to the jury was defective because it elided a proper determination of voluntariness. Yet that, according to Jackson, was important not because of the danger that an innocent man would be convicted. The confession might well be true, though involuntary, and a jury could so find. But such a decision would have demolished the prophylactic rule of Blackburn and Spano, supra, where confessions were excluded to prevent further coercion of confessions by police.

When it is recognized that Jackson is primarily concerned with the prevention of improper police conduct, the determination of a standard for the judge's ruling on voluntariness becomes easier. No policy of the law says that police hands must be slapped unless they act properly beyond a reasonable doubt. The reasonable doubt standard is a derivative of the presumption of innocence. Com. v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959). A finding of voluntariness by a preponderance ...

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