Pinto v. Pierce/Concurrence Fortas

Mr. Justice FORTAS concurring in the result.

I concur in the result because of trial counsel's consent to the taking of evidence on voluntariness in the presence of the jury. Otherwise, I disagree. The rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), should be more than ritual. It was not intended to assure a determination by the judge at the cost of diluting the jury's rule in the determination of voluntariness and the weight to be given to admissions. 'Just as questions of admissibility of evidence are traditionally for the court, questions of credibility, whether of a witness or a confession, are for the jury.' Id., at 386, n. 13, 84 S.Ct. at 1786. See also id., at 378, n. 8, 84 S.Ct. at 1781, and cf. id., at 404, 84 S.Ct. at 1795 (separate opinion of Black, J.).

Jackson v. Denno means that the judge and the jury must each make an independent judgment of voluntariness of an admission, the judge for purposes of admissibility and the jury for evidentiary acceptability, credibility, and weight. A telescoped hearing before judge and jury, in which the judge finds voluntariness for purposes of admissibility, in reality reduces the jury function to an echo. Hearing the evidence simultaneously with the judge, the jury is not apt to approach disagreement with him. I believe that the procedure here sanctioned, by reducing the effectiveness of the jury, gravely impairs the constitutional principle of excluding involuntary confessions which Jackson v. Denno sought to serve.

The jury is the traditional and preferred arbiter of facts. The procedure countenanced here, by dicta, sanctions, in effect, a direction to the jury to accept and give full credence to the admission-because the judge, hearing the same testimony, has ruled that the admission is voluntary.