This is a habeas corpus case brought by Frank M. Miller, Jr., who was convicted in New Jersey state court of the murder of Deborah Margolin. In his habeas corpus petition, Miller alleges that his confession to the murder was involuntary, because the police detective's mode of questioning created psychological pressure that induced him to confess against his will. The New Jersey Supreme Court held that the record supported the trial court's conclusion that Miller's confession was "voluntary," and thus admissible under the controlling precedents. We have carefully reviewed the record and conclude that the factual findings of the state court are supported by the record. We therefore conclude that we must accord these findings the presumption of correctness provided for in 28 U.S.C. Sec. 2254(d). See Patterson v. Cuyler, 729 F.2d 925 (3d Cir.1984). Given the findings and the presumption, we cannot say as a matter of law that the mode of interrogation used by the detective who questioned Miller rendered the confession involuntary, and accordingly we will affirm the judgment of the district court denying Miller's application for the writ of habeas corpus.

On August 13, 1973, at about 11:30 a.m., while Deborah Margolin was sunbathing on the porch of her home in rural East Amwell Township, a stranger approached in an automobile and informed her that he had seen a heifer loose at the bottom of the driveway. The stranger offered to help her retrieve the cow. Ms. Margolin declined the offer of help, and then proceeded alone in her brother's automobile to retrieve the heifer. Her brother found the automobile about half an hour later; the keys had been left in the ignition.

When Ms. Margolin failed to return by late afternoon, her family commenced searching for her. Her father eventually found her dead, face down in a creek, with her throat and breast cut. The New Jersey State Police were then called. A number of troopers and detectives arrived on the scene at about 7:30 P.M., and took a description of the car and the stranger from the victim's brothers, who had seen him drive up. Miller, who lived nearby and was known to the troopers, had been convicted in 1969 of carnal abuse and arrested in 1973 for statutory rape. One of the officers, Trooper Scott, recalled that Miller drove a car that matched the one described by the victim's brothers--an old white car with the trunk tied shut and two dents in the side. Detective Boyce of the State Police confirmed the descriptions of the car and also concluded that the description of the stranger given by the victim's brothers matched Miller's general physical characteristics.

The police located Miller at his place of employment, P.F.D. Plastics in Trenton, at about 10:50 P.M. on the evening of the murder, and questioned him there. Miller agreed to accompany the officers to the police barracks for further questioning, and, without being searched, turned his penknife over to the officers. After spending about seventy-five minutes in the barracks kitchen with Trooper Scott, during which he was not questioned, Miller was taken into an interrogation room by Detective Boyce and read his Miranda rights. Miller signed the Miranda card, and specifically asked Boyce for a clarification of his right to terminate questioning, which Boyce gave him.1

The state police made a tape recording of Miller's statement.2 Boyce spoke in a soft and friendly--even sympathetic--voice. He thus presented himself as a "nice guy," friendly to the suspect and interested in solving his problems. In response to Boyce's questions, Miller first described his activities on the morning of August 13. Boyce then pointed out various discrepancies in Miller's story about how he passed the time during which the murder occurred, the similarity between the description of the car given by the victim's brothers and Miller's car, and other incriminating evidence. At that point, Miller weakened:

BOYCE: Now, what would your conclusion be under those circumstances, if someone told you that?

MILLER: I'd probably, uh, have the same conclusion you got.

BOYCE: Which is what?

MILLER: That I'm the guy that, that did this.

BOYCE: That did what?

MILLER: Committed this crime.

After this, Boyce shifted gears. Boyce stated that in his opinion, Miller wasn't a "criminal," and that he didn't have a "criminal mind." Rather, Boyce asserted that Miller had a "problem," for which he needed help, not punishment. Boyce then led Miller to talk about his need for help, the psychiatric treatment he received as a condition of his parole from a prior conviction, and his recent statutory rape arrest.

With this background out on the table, Boyce began appealing to Miller's conscience:

B. Okay, listen Frank, If I promise to, you know, do all I can with the psychiatrist and everything, and we get the proper help for you, and get the proper help for you, will you talk to me about it?M. I can't talk to you about something I'm not ..

B. Alright, listen Frank, alright, honest. I know, I know what's going on inside you, Frank. I want to help you, you know, between us right now. I know what [sic] going on inside you. Frank, you've got to come forward and tell me that you want to help yourself. You've got to talk to me about it. This is the only way we'll be able to work it out. I mean, you know, listen, I want to help you, because you are in my mind, you are not responsible. You are not responsible, Frank, Frank, Frank, what's the matter?

M. I feel bad.

B. Frank, listen to me, honest to God, I'm, I'm telling you, Frank, (inaudible). I know, it's going to bother you, Frank, it's going to bother you. It's there, it's not going to go away, it's there. It's right in front of you, Frank. Am I right or wrong?

M. Yeah.

Miller then began, step by step, to make damaging admissions concerning his participation in the murder. At first, he insisted that, although he was with the victim when she was killed, some unknown stranger had actually committed the crime while they were searching for the heifer. Miller insisted that he had tried to get help, but that, when he realized the victim was dead, he had panicked and dropped the body off. Boyce allowed this much to come out, but then challenged Miller, saying "[y]ou killed this girl, didn't you." Miller again denied having committed the crime, after which Boyce changed gears again, telling Miller--again in soft, pleading tones--that he could only be helped if he "told the truth"--admitted the crime. The following exchange then took place.

B. Honest, Frank? It's got to come out. You can't leave it in. It's hard for you, I realize that, how hard it is, how difficult it is, I realize that, but you've got to help yourself before anybody else can help you. And we're going to see to it that you get the proper help. This is our job, Frank. This is our job. This is what I want to do.

M. By sending me back down there.

B. Wait a second now, don't talk about going back down there. First thing we have to do is let it all come out. Don't fight it because it's worse, Frank, it's worse. It's hurting me because I feel it. I feel it wanting to come out, but it's hurting me, Frank. You're my brother, I mean we're brothers. All men on this, all men on the face of this earth are brothers, Frank, but you got to be completely honest with me.

M. I'm trying to be, but you don't want to believe me.

B. I want to believe you, Frank, but I want you to tell me the truth, Frank, and you know what I'm talking about and I know what you're talking about. You've got to tell me the truth. I can't help you without the truth.

M. I'm telling you the truth. Sure, that's her blood in the car because when I seen the way she was cut I wanted to help her, and then when she fell over I got scared to even be involved in something like this, being on parole and ...

B. I realize this, Frank, it may have been an accident. Isn't that possible, Frank? Isn't that possible?

M. Sure, it's possible.

B. Well, this is what I'm trying to bring out, Frank. It may be something that, that you did that you can't be held accountable for. This is, I can help you, I can help you once you tell me the truth. You know what I'm talking about. I want to help you, Frank. I like you. You've been honest with me. You've been sincere and I've been the same way with you. Now this is the kind of relationship we have, but I can't help you unless you tell me the complete truth. I'll listen to you. I understand, Frank. You have to believe that, I understand. I understand how you feel. I understand how much it must hurt you inside. I know how you feel because I feel it too. Because some day I may be in the same situation Frank, but you've got to help yourself. Tell me exactly what happened, tell me the truth, Frank, please.

M. I'm trying to tell you the truth.

B. Let me help you. It could have been an accident. You, you've got to tell me the truth, Frank. You know what I'm talking about. I can't help without the truth. Now you know and I know that's, that's, that's all that counts, Frank. You know and I know that's what counts, that's what it's all about. We can't hide it from each other because we both know, but you've got to be willing to help yourself. You know, I don't think you're a criminal. You have this problem like we talked about before, right?

M. Yeah, you, you say this now, but this thing goes to court and everything and you ...

B. No, listen to me, Frank, please listen to me. The issue now is what happened. The issue now is truth. Truth is the issue now. You've got to believe this, and the truth prevails in the end, Frank. You have to believe that and I'm sincere when I'm saying it to you. You've got to be truthful with yourself.

Miller then began disgressing, talking about how he was "framed" by a detective in connection with his prior conviction and put in prison, and how "this is going to kill my father." Boyce continued to redirect Miller toward the murder, and finally the confession came out. The entire interrogation lasted about fifty-eight minutes. There were no threats or explicit promises made, and no physical coercion. Miller, who was coherent throughout the questioning, passed out at the end.

The state trial court refused to suppress the confession,3 and Miller was convicted after a four-day trial.4 A three-judge panel of the Appellate Division of the New Jersey Superior Court reversed unanimously, stating "we deplore the techniques and tactics which extracted this confession and which, in our judgment, denied defendant due process of law." The court's opinion, which is principally composed of quotes from the interrogation transcript, characterizes Boyce's method of interrogation as "psychological pressure," and in a short conclusion invoked the "the fair winds of due process" which "blow on the guilty as well as the innocent."5

The New Jersey Supreme Court, in a 4-3 decision, reversed the Appellate Division and reinstated the conviction. State v. Miller, 76 N.J. 392, 388 A.2d 218 (1978). The court stated the appropriate legal standard:

Every case must turn on its particular facts. In determining the issue of voluntariness, and whether a suspect's will has been overborne, a court should assess the totality of all the surrounding circumstances. It should consider the characteristics of the suspect and the details of the interrogation. Some of the relevant factors include the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862 (1973). A suspect's previous encounters with the law has been mentioned as an additional relevant factor. State v. Puchalski, 45 N.J. 97, 101, 211 A.2d 370 (1965).

76 N.J. at 402, 388 A.2d at 223. The court then proceeded to make subsidiary findings on the relevant factors, and applying the "totality of the circumstances" standard, held that the use of the "friendly cop" approach by Boyce did not overbear Miller's will. The court relied primarily on the following facts: the interrogation was not excessively long, Boyce at no time misled Miller into thinking he was anything but an interrogating police officer, and Miller understood the significance and probable outcome of confessing to the killing of Deborah Margolin. Id. at 403-04, 388 A.2d at 224. The court held that "the interrogation in this case did not exceed the proper bounds and that the voluntariness of defendant's confession could properly have been determined by the trial court to be established beyond a reasonable doubt." Id.

Miller petitioned for a writ of habeas corpus in the United States District Court for the District of New Jersey. The petition was referred to a magistrate, who recommended that the writ be denied. The district court agreed, rejecting Miller's contention that the psychological pressure created by the questioning made the confession involuntary in the constitutional sense. The district court held that, based on its independent review of the evidence, including the tape of the confession, Miller's will was not "overborne" by Boyce's questioning. The court adopted the magistrate's recommendation denying the writ of habeas corpus and granting a certificate of probable cause.6 This appeal followed.

Under 28 U.S.C. Sec. 2254(d), a state court factual finding is entitled to a "presumption of correctness" in a federal habeas corpus proceeding unless one of eight enumerated exceptions apply.7 The first seven exceptions, which go to the procedural adequacy of the state proceedings, are not applicable to this case. The eighth exception, which we address below, applies where a factual conclusion is not adequately supported by the record as a whole.

The controlling case on the application of the eighth exception in this context is Patterson v. Cuyler, 729 F.2d 925 (3d Cir.1984). Patterson's principal holding is that a decision of a state court concerning the voluntariness of a waiver of Miranda rights is entitled to the "presumption of correctness." Writing for the court, Judge Sloviter analyzed four recent Supreme Court decisions emphasizing the great deference due to state court factual findings in habeas corpus proceedings. See Rushen v. Spain, 462 U.S. 111, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (biased nature of jury deliberations is a finding of fact; presumption of correctness applies); Maggio v. Fulford, --- U.S. ----, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (presumption applies to competence to stand trial); Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (presumption applies to voluntariness of a guilty plea); Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982) (presumption applies to state of mind of witness in pre-trial photographic identification). On the basis of these cases, Judge Sloviter concluded that, contrary to our prior holdings,8 "mixed questions of law and fact" such as whether a confession is voluntary or not are subject to the presumption of correctness contained in 28 U.S.C. Sec. 2254(d).

Neither Patterson nor the recent Supreme Court decisions hold that we have lost our plenary power to review questions of federal law. Instead, the Court has mandated that we treat state-court factual findings dealing with a defendant's state of mind as such, and apply the presumption of correctness, even where that finding may be dispositive as a matter of law of the defendant's claim. Section 2254(d), of course, contains exceptions, the most important of which is that the presumption does not apply unless the factual findings are fairly supported by the record. See 28 U.S.C. Sec. 2254(d). Thus, as we read Patterson and the recent Supreme Court cases which it interprets, our review is limited to determining whether the state court applied the proper legal test, and whether the factual conclusions reached by the state court are supported on the record as a whole;9 to the extent that our prior holdings gave us plenary review over state court findings as to state of mind, they are no longer valid.

The dissent complains bitterly that our opinion, which is, of course, informed by Patterson, reads recent decisions of the Supreme Court as effectively overruling, sub silento, fifty years of caselaw of that Court holding that the question whether a defendant's state of mind renders his confession involuntary is a question of law, over which we have plenary review in a habeas corpus case. The dissent may be correct on this point. Patterson is binding precedent, however, and we must apply it unless we find it distinguishable, which we do not.10 We note that Patterson's reading of the trend of the recent Supreme Court decisions has since been reinforced by the Court in Patton v. Yount, --- U.S. ----, ----, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984).11 At all events, we believe that Patterson was correctly decided and that its principles are applicable to voluntary confession cases.12

The concept of voluntariness is not one that lends itself to easy description. In determining whether a confession is voluntary, a court must make three determinations. First, the court must find the subsidiary facts on which the ultimate conclusion must be based--the circumstances surrounding the defendant's confession. Second, the court must draw an inference as to the effect that those surrounding circumstances had on the defendant's mental processes. Third, the court must determine whether the mental processes which led the defendant to confess were such that the confession was "voluntary" within the constitutional standard. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961). The dissent does not dispute that, in reviewing a finding of voluntariness, we must defer as to the state court's findings of the subsidiary facts, such as the circumstances of the questioning and the defendant's mental capacities, as long as they are supported by the evidence. There is also no dispute that we are free to review, on a plenary basis, the legal standard applied to the "state of mind" inference drawn by the state court. The disputed question in this case is whether the inference as to the defendant's state of mind should be treated as a separate factual conclusion, to which we must also defer, or whether it is so inextricably bound up with the legal standard that the two steps are really one, over which we have plenary review.13

In the long series of cases cited by the dissent, the Supreme Court confronted confessions made under varying circumstances. These cases generally presented undisputed facts, including unrecorded interrogation of the defendant by police officers, long periods of questioning during which the defendant was denied sleep, access to counsel, or any other form of outside support, and often included disputes over whether physical force was used. The Court was consistently dubious that a confession given under these circumstances could be considered "voluntary"; yet state judges and juries were finding, on the basis of these facts, that confessions were voluntary. A precise legal definition of voluntariness, however, remained elusive. As a result, the Court engaged in an independent, case-by-case review of the state courts' conclusions concerning voluntariness, on the basis of the subsidiary facts as found by the state court, and substituted its conclusion for that of the state courts.

The case which perhaps best highlights the Court's approach to this problem is one stressed by the dissent: Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). In Culombe, the Court utilized the same three-stage analysis as we do here, but did not treat state court findings concerning the defendant's state of mind as binding. The court did not, however, base its holding on an unconstrained review of the state-of-mind finding. This is clear from a passage from Justice Frankfurter's opinion in Culombe which immediately follows the segments quoted by the dissent:

Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate with due regard to federal-state relations, that the state court's determination should control. But where on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process--where this is all that appears in the record--a State's judgment that the confession was voluntary cannot stand.

367 U.S. at 605, 81 S.Ct. at 1880-1881. Fairly speaking, the "inference" concerning the defendant's state of mind, therefore, was never considered a purely "legal" question; rather, it was viewed as a hybrid question, on which the state court's conclusion was entitled to some deference.14

In recent years, the Supreme Court has shown considerable concern for segregating "factual" and "legal" issues for purposes of appellate review. See Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789-90, 72 L.Ed.2d 66 (1982) ("ultimate" findings of fact, which are dispositive of the legal issues involved, are entitled to deference under the "clearly erroneous" standard of Fed.R.Civ.P. 52(a)).15 The cases relied on by this court in Patterson extend that concern to habeas corpus review of state court criminal convictions. See also Patton v. Yount, --- U.S. ----, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Patterson found this trend generally applicable to constitutional questions that turn on a determination about a defendant's state of mind, and held that such determinations were ultimate questions of fact, rather than questions of law. We read the recent decisions of the Supreme Court, as interpreted by Patterson, as holding that the second stage of the Culombe inquiry--that concerning the inference as to the defendant's state of mind--should no longer be considered a "legal" or "hybrid" question as it was in Culombe, but rather a question of "ultimate fact" in the sense of Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982).

This increased concern with limiting the scope of review reflects a change of emphasis on the part of the Supreme Court. Before the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court had used the "voluntariness" inquiry as a way to check outrageous interrogation practices by law enforcement agencies. Since Miranda, however, voluntariness inquiries have played a far less important role in court supervision of police practices. Before Miranda, the courts were frequently presented with confessions extracted by means of the "third degree." Since Miranda, however, voluntary confession cases turn more often on factors such as the individual defendant's intelligence and understanding of the proceedings. In these latter cases, state court determination of state of mind will frequently be dispositive, if given deference by the federal courts in habeas corpus proceedings. The Supreme Court clearly understood this in its recent decisions. These cases, therefore, appear to involve a policy decision by the Court to limit the scope of federal supervision of the interrogation process, as long as the police have complied with the prophylactic rules of Miranda.16

Notwithstanding the dissent's hyperbole, the case before us today does not present the type of gross abuses of fundamental fairness that characterized many of the voluntariness cases which came before the Court in the years before its decision in Miranda; instead, it is typical of voluntary confession cases in the post-Miranda era. There was no secret interrogation in this case; indeed, the entire encounter was tape-recorded. The questioning was not pressed for a long period of time, and Miller was aware of his right to terminate it upon request. He was not denied food or other necessities, nor was he physically abused or threatened. We cannot say, and we doubt that the dissent would assert, that no confession made under the circumstances presented in this case could ever be "voluntary." Instead, we are asked to judge the effect of a particular set of circumstances on a particular defendant. This type of inquiry is one which seems to us to be peculiarly within the proper realm of the trier of fact.

We recognize that, in circumstances where the ultimate question of fact is one involving state of mind, it may be difficult to pinpoint the "factual" conclusion as to state of mind, and to state the "legal standard" in such a way as to make its application mechanistic. Under such circumstances, federal courts in habeas corpus cases must either review underlying conclusions about the defendant's state of mind as legal questions, or allow the fact-finding courts some leeway in applying legal standards to the facts of specific cases. Our reading of the recent Supreme Court decisions relied on in Patterson is that the Court has chosen to require strict adherence to the limited scope of review over facts, even where it would result in giving state trial courts some leeway in applying the constitutional standard.

Our decision does not leave the federal courts devoid of power to redress state court decisions which violate fundamental constitutional rights. The legal standard to be applied is a federal question. State courts must apply the federal constitution as it is interpreted by the federal courts, and they may not draw inferences as to a defendant's state of mind that are not supported by objective facts. But where, as here, the objective facts support a factual inference that the defendant's "state of mind" was such that the confession was voluntary within the meaning of the Constitution, it is not the role of the federal courts to second-guess the inference drawn by the state courts.

The constitutional test for voluntariness involves a determination, on the totality of the circumstances, whether the confession was a product of the defendant's free will, or whether it was the product of interrogation which resulted in the overbearing of the defendant's will. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In most instances, the controlling question is the defendant's state of mind--a question of fact. In this case, the New Jersey Supreme Court17 stated a number of subsidiary factual conclusions: that Miller was a man of reasonable intelligence who had experience with and understood the workings of the criminal justice system; that Miller's distress during the interview was a product of his realization of what he had done, not of coercive pressure by Boyce; that Miller was not deceived into believing that Boyce was anything other than a police officer investigating a serious crime for which Miller was the prime suspect; and, that Miller was well aware that, if he confessed, he would be handled through the criminal justice system. The court then concluded, on the basis of these findings, that Miller's confession was the product of his free will, rather than psychological coercion. 76 N.J. at 404, 388 A.2d at 224. Under Sec. 2254(d), these conclusions are presumed to be correct, and we must accept them as long as they are fairly supported by the record as a whole. We find that they are.

The most relevant part of the record in this case is the tape of Miller's interrogation and confession, and we must therefore analyze the confession tape to determine whether it supports the conclusion of the New Jersey Supreme Court. No objection is made to Boyce's confronting Miller with discrepancies in his explanation of where he was at the time of the murder, or with the statements of the victim's brothers describing the car that approached their home that morning and its driver. During the questioning, Boyce did lie in telling Miller that the victim had died only a few minutes beforehand, but this lie does not render the confession legally involuntary unless it undermined the "voluntariness" of the confession under the totality of the circumstances. See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969). Since the colloquy about the time of the victim's death did not seem to affect Miller at all, it cannot be said to have undermined the voluntariness of the confession. Obviously, the fact that the interrogation was "sympathetic" rather than confrontational does not render it coercive. Similarly, to the extent that Boyce confronted Miller with the enormity of his crime, attempting to appeal to his conscience, the questioning is not objectionable, even though Boyce referred to the incident as a "problem" rather than a crime.

Miller's principal contention is that Boyce's repeated assertions that Miller did not have "a criminal mind," and that he needed help, rather than punishment, amounted to deception or psychological coercion which undermined the voluntariness of the confession. It is axiomatic that coercion need not be physical to render the confession involuntary; any coercion which denies the defendant the freedom to remain silent may be enough. See Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 618, 17 L.Ed.2d 562 (1967). Psychological coercion is enough if, under the totality of the circumstances, it results in the overbearing of the defendant's will. All police practices that encourage defendants to confess, however, do not amount to psychological coercion. Our role is to review the nature of the questioning involved, accepting as true those findings of the state court that involve the defendant's state of mind, to determine whether the tactics used by Detective Boyce in this case were unconstitutionally coercive.

The most substantial potential problem with the confession is that Boyce's questioning arguably implied that Miller would receive "help," not punishment, if he confessed.18 The use of promises by an interrogating officer can be sufficient to invalidate a confession. See Robinson v. Smith, 451 F.Supp. 1278, 1290 (W.D.N.Y.1978), and cases cited therein. In general, however, promises by interrogators will not invalidate a confession unless they are sufficient to "overbear the defendant's will"--the general standard of voluntariness. See Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir.1966) (where defendant was told that any assistance to investigators would be brought to the attention of prosecutors, confession was not rendered inadmissible as a result); United States v. Ferrara, 377 F.2d 16 (2d Cir.), cert. denied, 389 U.S. 908, 88 S.Ct. 225, 19 L.Ed.2d 225 (1967) (where interrogator told defendant that if he cooperated with the government, he would be released on a reduced bail, the confession was not rendered involuntary); United States v. Glasgow, 451 F.2d 557 (9th Cir.1971) (per curiam) (where interrogator told defendant he would inform prosecutor if defendant cooperated, the confession was not necessarily rendered involuntary).19

In this case, Miller showed a continuing recognition of the depth of the trouble that he was in and the consequences of telling Boyce the truth. Although Boyce stated that he felt Miller needed help, not imprisonment, this was only part of his approach. He also spoke to Miller about the need to tell the truth to purge his conscience,20 and continually intermixed his statements about Miller's "problem" with his appeals to conscience. The state court found that this questioning did not overbear Miller's will, and thus did not render the confession involuntary. As we have noted above, we conclude that the state court's determination as to the effect on Miller's state of mind was supported on the record as a whole.

Under the caselaw on the question of voluntariness, the inquiry before us is whether the confession was "a product of an essentially free and unconstrained choice by its maker." Judging by this standard, in light of our restricted scope of review, we have concluded that Miller's confession was voluntary and hence admissible.21 The judgment of the district court will be affirmed.

GIBBONS, Circuit Judge, dissenting.

This is a tragic case, made so by the grim death of a young woman, by the abrasive, debilitating psychological ploys used to extract a confession of her murder, and by this court's refusal to follow more than fifty Supreme Court precedents holding that the question whether a confession is involuntarily given is a mixed question of law and fact, over which our review of the ultimate question of voluntariness is for error of law. The majority's holding places us in conflict with eight Federal Circuits. Our decision is all the more disconcerting because, as a matter of law, the confession of the defendant, Frank Miller, was involuntarily obtained. By reclassifying the issue as one of "fact" and deferring to the "factual" findings of the state courts--findings those courts neither made nor purported to make--the majority has abdicated its judicial responsibility to make an independent determination of the voluntariness of a confession. And as a crowning irony to this court's decision, a majority of the eleven New Jersey judges who reviewed this confession, and to whom we are deferring, concluded not that it was voluntary but that it was involuntary; and all eleven judges asserted that they were drawing a legal conclusion. I emphatically dissent.

The confession at issue here was the product of implied promises, trickery, cajolery, dissembling, and exaggeration. Because a complete transcript and tape recording of the interrogation are in the record, none of the historical facts concerning Miller's confession are in dispute. The majority's abridged account of Detective Boyce's questioning conveys neither the deceipt employed nor the intensity of the interrogation.

Early in the interrogation Detective Boyce led Miller to believe that Miller had been identified at the scene of the crime. "[W]e have a physical description," Boyce asserted, that "fits you and the clothes you were wearing." App. at 7. Later Boyce told Miller, "[Y]ou were identified as being there talking to her minutes before she was ... [murdered]." App. at 9. In fact Boyce had no such identification. The witness, Daniel Margolin, testified:

I didn't pay very much attention to the person [driving the car] because I assumed it was someone in the neighborhood and all I really noticed about the individual was he looked about average, he looked like a factory worker and that he had loose-fitting clothing on.

Tr. at 169-70. No identification of Miller was ever introduced at trial. Nevertheless, unaware of Boyce's misrepresentation during the interrogation, Miller responded, "[L]ike you say, I'm identified and my car's identified." App. at 8.

Boyce also represented that blood stains of Deborah Margolin, the victim, were found on Miller's doorstep. "We went to your house last night and found blood stains on the front stoop," Boyce dissembled. App. at 6. In fact the state introduced no such evidence at trial and does not contend on appeal that any such blood existed.

Nor did the interrogation stop with these fabrications. Miller had been detained in the Flemington State Police Barracks kitchen for two hours before his interrogation. In pretrial proceedings Miller testified that during this detention, Officer Scott "told me that a girl had been cut but that she was lucky she was still alive and was going to be able to identify the guy that done it." Tr. at 109. Scott's assertion was false; although both officers knew that Margolin had died five hours earlier, they deliberately left the impression that she had given a description and could identify her assailant. Alluding to Scott's remark that Margolin "was in the hospital," App. at 9, Miller asked his interrogator whether Margolin was still alive. App. at 8. Boyce quickly ad-libbed, "She died just a few minutes ago. I just got ... that's what that [telephone] call was about."1 App. at 9. In fact Margolin had died hours earlier leaving no description of her assailant.

These prevarications were followed by thirty-eight minutes of intensive, relentless questioning during which Boyce plainly and simply overbore the defendant's will. Boyce badgered Miller incessantly with promises of help if Miller would confess. On no less than 41 occasions Boyce urged that Miller admit he had a problem, that he needed help to solve his problem, and that Boyce would provide that help if Miller would confess. App. at 6-17 passim. "If I promise to, you know, do all I can with the psychiatrist and everything, and we get the proper help for you, ... will you talk to me about it?" whispered Boyce. App. at 12. "[W]e're going to see to it that you get the proper help. This is our job, Frank. This is our job. This is what I want to do," Boyce intoned. App. at 15. On at least 12 other occasions Boyce urged that Miller would not be held responsible for his actions. "[I]t's not your fault, it's their fault," said Boyce. App. at 11. "[I]f you did commit an act, actually they're the ones that are to blame, in my eyes, ... not you as an individual." Id. "[I]t may have been an accident," Boyce entreated. "It may be something that, that you did that you can't be held accountable for." App. at 15. The tape reveals Miller sobbing thirty minutes into the interrogation, distraught, weak, and unstable.

As if there could be any doubt about the intensity of this debilitating examination, at the conclusion of Boyce's interrogation Miller lapsed into unconsciousness. The majority glosses over the fact that Miller passed out on the floor at the end of the questioning as though this were the ordinary response of one in control of his will during an interrogation. In fact Miller's unconscious state prevented the officers from obtaining any signed confession. Detective Boyce testified:

Q. I gather that [a] statement was never taken, is that right?

A. It was not.

Q. Why was that, Officer?

A. Momentarily after terminating this particular interview Mr. Miller went into as I can best define it a state of shock.

Q. What do you mean by that, sir?

A. He was sitting on a chair--...

Mr. Miller had been sitting on a chair, had slid off of the chair on to the floor maintaining a blank stare on his face, staring straight ahead and we were unable to get any type of verbal response from him at that time.

Q. As I understand it he was then removed to the Hunterton Medical Center, is that right?

A. Yes, the first aid squad was contacted immediately.

Tr. at 84-85.

In a unanimous, strongly worded opinion, the New Jersey Appellate Division condemned these adjurations as "relentless and successful Svengalian efforts." State v. Miller, 76 N.J. 392, 419, 388 A.2d 218, 232 (1978) (Conford, P.J.A.D., dissenting).2 Without dissent the court held that Miller "could not long resist the tremendous psychological pressure." Id. "The tape transcript must be read in its entirety for its full aroma to be savored," that court observed. Id. at 413, 388 A.2d at 229. Miller's ultimate confession, the court held, was a "capitulation to the superior mind." Id. at 422, 388 A.2d at 234. And capitulation it was. Miller was tricked by an intensive, hypnotic 58-minute interrogation into incriminating himself by a superior questioner who played on Miller's unstable, childlike mind.

After reviewing these events, the New Jersey Appellate Division held:

An overbearing broadside which results in a confession by virtue of intense and mind bending psychological compulsion deserves no better fate at our hands than does the legendary rubber hose. Chambers v. Florida, 309 U.S. 227 [60 S.Ct. 472, 84 L.Ed. 716] (1940). We have long cherished a determination that the fair winds of due process shall blow upon the guilty as well as the innocent. We will not here let our gratitude for good police work which ferreted out one who is most probably a murderer, and our abhorrence at the crime he committed, cause us to abandon basic constitutional principles.

76 N.J. at 422-23, 388 A.2d at 234. Without applying these constitutional principles, indeed without referring to them, the majority today characterizes the voluntariness of Miller's confession as a question of "fact." The "factual" finding of the New Jersey Supreme Court, the majority concludes--a finding that court never made, for the New Jersey Supreme Court held that it was deciding a question of law--is not without support in the record. Consequently, the majority reasons, we must defer to the state courts' "finding" that Miller's confession was voluntary.

This disposition is squarely in conflict with Supreme Court precedent. Over fifty Supreme Court decisions have held that the voluntariness of a confession is a mixed question of law and fact over which our review of the ultimate question of voluntariness is plenary.3 Indeed, no issue has consumed the attention of the Supreme Court more completely in this century, no single question has been investigated more thoroughly nor dissected more vigorously, than the standards for the voluntariness of a confession. The most recent of these decisions, decided barely a month after the New Jersey Supreme Court's decision in this case, reiterated what has become rote in the Court's jurisprudence: a confession is voluntary only if it is " ' "the product of a rational intellect and a free will," ' " and "[i]n making this determination, we are not bound by the [state] [s]upreme [c]ourt's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record." Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978).

The authority for the majority's decision to ignore 48 years of Supreme Court precedent holding that the ultimate issue of voluntariness of a confession is a question of law is the panel opinion of this court in Patterson v. Cuyler, 729 F.2d 925 (3d Cir.1984). Creating a conflict with eight Federal Circuits, see note 20 infra, Patterson reasoned that the voluntariness of a confession is an issue of historical fact.4 In so reasoning, the Patterson court concluded that no less than fifty Supreme Court decisions have been overruled sub silentio, a coup muet said to be the work of three recent decisions of the Supreme Court.^4a None of the recent opinions examined in Patterson addresses the voluntariness of a confession. The Patterson court mentioned none of the fifty confession cases which it reasoned were overruled sub silentio; nor did it discuss the motive and purpose behind the Supreme Court's classification of voluntariness of a confession as a mixed question of law and fact. Indeed, Patterson itself addresses only the voluntariness of a Miranda waiver. No petition for rehearing in Patterson was filed.

I dissent from the majority's roughshod treatment of almost half a century of Supreme Court precedent. The history of the voluntary-confession doctrine makes it abundantly clear that the ultimate issue of voluntariness of a confession is a question of law. See Part III infra. Moreover, I dissent from the majority's deference to a finding of "fact" that no New Jersey Court has made. There is no authority for deference to a finding of "fact" when the court rendering such a "finding" has expressly held that it is not making a factual finding but drawing a legal conclusion. See Part IV infra. We pay little respect for the state courts by ignoring their holdings and rewriting their factual findings. Finally, I dissent from the majority's suggestion that three recent Supreme Court decisions have overruled sub silentio one of the most firmly grounded of Supreme Court doctrines. One of these decisions, holding that the ultimate issue of voluntariness of a guilty plea is a question of law, undermines the majority's position. Neither of the remaining decisions pertains to custodial interrogation conducted in closed proceedings. The import and force of the voluntary-confession doctrine, in contrast, is to afford independent federal review over these closed proceedings. See Part III D infra. The majority's decision today raises deeply disturbing questions concerning respect for stare decisis and regarding the appropriate role of the inferior federal courts in our hierarchical legal structure.

Ultimate Issue of Voluntariness of a Confession is a Question of Law

The Supreme Court held in 1936 that a conviction obtained by means of a confession extracted by violence violates due process of law. Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682 (1936). The interrogators in Brown brazenly admitted their torture. " 'This deputy was put on the stand by the state in rebuttal, and admitted the whippings,' " noted Chief Justice Hughes. Asked how severely one of the defendants was whipped, the deputy testified, " ' "Not too much for a negro; not as much as I would have done if it were left to me." ' " Id. at 284, 56 S.Ct. at 464. Two others who had participated in the whippings " 'were introduced and admitted it,' " the Court observed; " 'not a single witness was introduced who denied it.' " Id. at 284-85, 56 S.Ct. at 464-65. Thus no conflict in the trial testimony was presented in Brown. The Supreme Court held that on the basis of the facts admitted, "It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as a basis for conviction and sentence was a clear denial of due process." Id. at 286, 56 S.Ct. at 465.

On the Supreme Court's next occasion to address a coerced-confession claim, the interrogators were neither as brazen nor as foolish as those in Brown, for none admitted to mistreatment of the defendants. In Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940), the Florida Supreme Court had twice reversed the convictions of four defendants, directing that a jury decide in coram nobis proceedings whether their confessions were " 'in fact freely and voluntarily made.' " Id. at 227-28 n. 2, 60 S.Ct. at 473 n. 2. After a jury twice found the confessions voluntary, Florida's highest court affirmed. The evidence of voluntariness before the Supreme Court consisted of the transcripts of these coram nobis proceedings. "The testimony [in these proceedings] is in conflict," noted Justice Black, "as to whether all four petitioners were continually threatened and physically mistreated until they finally, in hopeless desperation and fear of their lives, agreed to confess ...." Id. at 231, 60 S.Ct. at 474.

Before the Supreme Court the State of Florida urged that the jury's finding of voluntariness was a finding of "fact." This "finding," Florida argued, resolved any dispute in the testimony as to voluntariness and "finally determined [that issue] because passed upon by a jury." Id. at 228, 60 S.Ct. at 473. The Supreme Court rejected this claim. "[W]e must determine independently," the Court held, "whether petitioners' confessions were so obtained, by review of the facts upon which that issue necessarily turns." Id. at 229, 60 S.Ct. at 473 (footnote omitted). Because certain of the historical facts were disputed, the Court held, it would decide the voluntariness of the confessions as a matter of law on the basis of the undisputed historical facts. Id. at 238-39, 60 S.Ct. at 477-78.

Chambers v. Florida thereby became the progenitor of the Supreme Court's direct-appeal doctrine in voluntary-confession cases. That doctrine provides that in reviewing claims of coerced confession raised on direct appeal to the Supreme Court, the voluntariness of the confession is to be decided as a matter of law on the basis of the admitted or undisputed historical facts of record. The Court applied the direct-appeal doctrine without fail in seventeen voluntary confession cases decided after the Chambers decision in 1940 and before the first voluntary-confession claim to reach the Supreme Court by habeas corpus, Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), in 1953.6 The Court's 1949 trilogy of confession cases, Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Harris v. South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949), state the doctrine clearly:

On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple. But "issue of fact" is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court's adjudication.... Especially in cases arising under the Due Process Clause is it important to distinguish between issues of fact that are here foreclosed and issues which, though cast in the form of determinations of fact, are the very issues to review which this Court sits....

[I]n all the cases that have come here during the last decade from the courts of the various States in which it was claimed that the admission of coerced confessions vitiated convictions for murder [citing fourteen cases], there has been complete agreement that any conflict in testimony as to what actually led to a contested confession is not this Court's concern. Such conflict comes here authoritatively resolved by the State's adjudication. Therefore only those elements of the events and circumstances in which a confession was involved that are unquestioned in the State's version of what happened are relevant to the constitutional issue here. But if force has been applied, this Court does not leave to local determination whether or not the confession was voluntary. There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.

Watts v. Indiana, 338 U.S. at 50-52, 69 S.Ct. at 1348-49 (opinion of Frankfurter, J.) (emphasis added) (footnote and citations omitted).

Indeed, the direct-appeal doctrine became so firmly rooted in Supreme Court jurisprudence that reiteration of the oft-repeated standard became second nature to the Court. Thus, after putting "to one side the controverted evidence" in Haley v. Ohio, 332 U.S. 596, 597-98, 68 S.Ct. 302, 302-03, 92 L.Ed. 224 (1948), and noting that both the state trial court and the jury "found" the defendant's confession voluntarily made, id. at 599, 68 S.Ct. at 303, the Supreme Court held:

But the ruling of the trial court and the finding of the jury on the voluntary character of the confession do not foreclose the independent examination which it is our duty to make here.... If the undisputed evidence suggests that force or coercion was used to exact the confession, we will not permit the judgment of conviction to stand....

Id. (opinion of Douglas, J.). Similarly, in Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951), the Court held:

As this Court has been entrusted with power to interpret and apply our Constitution to the protection of the right of an accused to federal due process in state criminal trials, the proper performance of that duty requires us to examine, in cases before us, such undisputed facts as form the basis of a state court's denial of that right.... A contrary rule would deny to the Federal Government ultimate authority to redress a violation of constitutional rights. As state courts also are charged with applying constitutional standards of due process, in recognition of their superior opportunity to appraise conflicting testimony, we give deference to their conclusions on disputed and essential issues of what actually happened.... Its duty compels this Court, however, to decide for itself, on the facts that are undisputed, the constitutional validity of a judgment that denies claimed constitutional rights.

342 U.S. at 61, 72 S.Ct. at 145 (opinion of Reed, J.).

The Supreme Court's decision to characterize the ultimate issue of voluntariness of a confession as one of law did not turn on an epistemological theory of whether "voluntariness" concerned the defendant's "state of mind" and whether such "state of mind" issues are questions of "fact." To the contrary, the Court's holdings had a far deeper motivation. The interrogations at issue took place in secret. They generally occurred in inherently coercive settings, frequently involving a single defendant shackled or detained for long periods of time and surrounded or confronted by relays of five or more police officers. At trial the defendant's account was matched against the testimony of many officers, some of it obviously incredulous to the Supreme Court. The Court construed the ultimate question of voluntariness as one of law because the settings of police interrogations were secret and inherently coercive, because the Court had grave doubts about what transpired during these secret proceedings, and because federal review of these proceedings would be frustrated on direct appeal if the question were one of fact. Hence the Court's explanation in both Haynes v. Washington, 373 U.S. 503, 515-16, 83 S.Ct. 1336, 1344-45, 10 L.Ed.2d 513 (1963), and Stein v. New York, 346 U.S. 156, 181, 73 S.Ct. 1077, 1091, 97 L.Ed. 1522 (1953)--both coerced-confession cases--that "this Court cannot allow itself to be completely bound by state court determination of any issue essential to decision of a claim of federal right, else federal law could be frustrated by distorted fact finding."7

The Supreme Court's opinions in White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L.Ed. 1342 (1940), and Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942), are exemplars of this point. State officers in both cases conceded that they had taken the defendant on "night trips to the woods," "out off of the road," White, 310 U.S. at 533, 60 S.Ct. at 1033, or "by night and day to strange towns," Ward, 316 U.S. at 555, 62 S.Ct. at 1143. They contested, however, what happened on these strange "night trips." The defendants contended that they were "beaten, whipped and burned," Ward, 316 U.S. at 551, 62 S.Ct. at 1141, "handcuffed" and "whipped," White, 310 U.S. at 532, 60 S.Ct. at 1033, and otherwise subject to physical abuse. The interrogating officers, in contrast, denied any mistreatment, avowing instead that the defendants felt a new sense of peace after these night journeys and willingly confessed. The officer's testimony in Ward v. Texas is illustrative: " 'We just talked to him to get that statement. Yes, sir, we just sweet talked him out of it.' " 316 U.S. at 552, 62 S.Ct. at 1142. The Texas courts resolved the disputed testimony in favor of the officers and purported to "find" the confessions voluntary. In order to prevent gross miscarriages of justice, the Supreme Court held while state findings of historical fact were binding on direct appeal, the ultimate issue of voluntariness is one of law.

In summary, by 1953 the Supreme Court had expressly held in at least eighteen reported cases that the ultimate question of the voluntariness of a confession is one of law. On direct appeal to the Supreme Court this legal determination was to be made on the basis of the undisputed historical facts. The Court characterized the ultimate issue as one of law because the police interrogations at issue were conducted in secret, coercive settings, and because federal review over these proceedings would be defeated on direct appeal were the ultimate issue one of fact.

In 1953 the Supreme Court examined the first coerced-confession claim to reach the Court in habeas corpus. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).8 In what is now standard fare to students of habeas corpus, the Court held in Brown v. Allen that the scope of review of the federal courts in habeas corpus exceeds that of the Supreme Court on direct appeal. While the direct-appeal doctrine limits the Supreme Court's review to the undisputed facts of record, the 1867 Habeas Corpus Act9 creates the power in every case to readjudicate issues of historical fact decided by the state courts. 344 U.S. at 457-64, 73 S.Ct. at 407-11 (opinion of Reed, J.). Moreover, the Court held, in certain circumstances the federal courts were obliged to consider factual questions anew, in particular when the state courts failed to give "fair consideration to the issues and the offered evidence," id. at 463, 73 S.Ct. at 410 (opinion of Reed, J.), and when "a vital flaw be found in the process of ascertaining" the facts by the state courts. 344 U.S. at 506, 73 S.Ct. at 445 (opinion of Frankfurter, J.). However, the Brown Court held, conclusions of mixed law and fact are never binding in habeas corpus proceedings:

Where the ascertainment of the historical facts does not dispose of the claim but calls for interpretation of the legal significance of such facts, ... the District Judge must exercise his own judgment on this blend of facts and their legal values. Thus, so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge.

Id. at 507, 73 S.Ct. at 446 (opinion of Frankfurter, J.). The Court's review of the coerced-confession claim in Brown --a mixed question of law and fact--was plenary. 344 U.S. at 474-76, 73 S.Ct. at 416-17 (opinion of Reed, J.).

The "fair consideration" and "vital flaw" standards of Brown v. Allen soon proved bedevilling to the district courts.11 In an effort to afford additional guidance on the question whether the district courts were obliged to relitigate issues of historical fact, the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), refined the rules of Brown v. Allen. In lieu of the amorphous "fair consideration" and "vital flaw" standards of Brown, the Court substituted six arguably clearer standards.10 In the event that a mandatory hearing is not required under these standards, the Townsend Court held, the district courts "may, and ordinarily should, accept the facts as found in the [state] hearing. But [they] need not." 372 U.S. at 318, 83 S.Ct. at 760.

Congress codified the Townsend standards with little change in the 1966 amendments to the Habeas Corpus Act. 28 U.S.C. Sec. 2254(d)(1)-(8) (1982); see Maj. op., at 1461 n. 7. The 1966 amendments retained the exception applicable when the state factual determination "is not fairly supported by the record." 28 U.S.C. Sec. 2254(d)(8) (1982). In cases not falling within these exceptions, Congress added, state findings of historical fact "shall be presumed to be correct." 28 U.S.C. Sec. 2254(d) (1982).

Neither Townsend v. Sain nor the 1966 amendments to the Habeas Corpus Act, however, altered the Supreme Court's doctrine that the federal courts sitting in habeas proceedings exercise plenary review over the ultimate legal issue in mixed questions of law and fact. The Townsend Court held:

By "issues of fact" we mean to refer to what are termed basic, primary, or historical facts: facts "in the sense of a recital of external events and the credibility of their narrators ...." Brown v. Allen, 344 U.S. 443, 506 [73 S.Ct. 397, 446, 97 L.Ed. 469] [ (1953) ] (opinion of Mr. Justice Frankfurter). So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.

372 U.S. at 309 n. 6, 83 S.Ct. at 755 n. 6. As recently as May of 1984 the Court reaffirmed that the ultimate legal issue in a mixed question of law and fact is not subject to the presumption of correctness of section 2254(d). Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); see Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam); Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980); Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 1241-42, 51 L.Ed.2d 424 (1977).

Nor did the Court recede from its holdings that the voluntariness of a confession is such a mixed question of law and fact. As I note below, in over thirty decisions filed between the opinions in Brown v. Allen and Sumner v. Mata, the Supreme Court emphatically reaffirmed that voluntary-confession determinations are mixed questions of law and fact.

Thus, the evolving standards for the review of historical facts in habeas corpus proceedings had no effect on the voluntary-confession doctrine. That doctrine, that the ultimate question of the voluntariness of a confession is an issue of law, applied equally indirect appeals and habeas corpus.

C. Coerced-Confession Claims from Brown v. Allen to Mincey v. Arizona

As increasing numbers of coerced-confession claims pressed for the Supreme Court's attention, the Court evinced mounting concern over the circumstances of police interrogations conducted in closed-door sessions. Between 1953 and 1966, the year of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court addressed no less than nineteen coerced-confession claims. During this period the Court reaffirmed that a confession may be extracted by psychological ploys as surely as by physical abuse. Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960);¹¹ see Jackson v. Denno, 378 U.S. 368, 389-90, 84 S.Ct. 1774, 1787-88, 12 L.Ed.2d 908 (1964); Spano v. New York, 360 U.S. 315, 321, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959) (as "the methods used to extract confessions [become] more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made."). In all such cases, the Court held, the legal standard for voluntariness is whether the confession is "the product of a rational intellect and a free will." Blackburn, 361 U.S. at 208, 80 S.Ct. at 280. In the case of psychological coercion, the Court's assessment of voluntariness included consideration of the intensity and potential for deceipt of any psychological pressure employed13 in addition to the defendant's susceptibility to such pressure, as measured by the individual's maturity,14 education,15 intelligence,16 experience,17 and physical condition.18

In each of these cases the Supreme Court reaffirmed that the ultimate determination of voluntariness is a mixed question of law and fact. Justice Frankfurter's encyclopedic opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), for example, clearly distinguished between the underlying historical facts and the ultimate determination of voluntariness:

The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, "phenomenological" occurrences and events surrounding the confession. Second, because the concept of "voluntariness" is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, "psychological" fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.

367 U.S. at 603, 81 S.Ct. at 1879 (opinion of Frankfurter, J.). The first of these determinations, the Court held, is one of historical fact. Id. However, the Court reiterated, the second and third phases are conclusions of law. Id. at 604-05, 81 S.Ct. at 1880-81. Justice Frankfurter made amply clear the reason for classifying these determinations as legal conclusions:

No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially--that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel.

Id. at 605, 81 S.Ct. 1880.

Reaffirmations of the rule that the ultimate question of voluntariness is one of law appear in every case decided during this period. E.g., Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961):

The question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession is one which it is the ultimate responsibility of this Court to determine.

Id. at 435, 81 S.Ct. at 1543; see also Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963):

Our conclusion is in no way foreclosed, as the State contends, by the fact that the state trial judge or the jury may have reached a different result on this issue.

It is well settled that the duty of constitutional adjudication resting upon this Court requires that the question whether the Due Process Clause of the Fourteenth Amendment has been violated by admission into evidence of a coerced confession be the subject of an independent determination here ...; "we cannot escape the responsibility of making our own examination of the record," Spano v. New York, 360 U.S. 315, 316 [79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265] [ (1959) ].

Id. at 515, 83 S.Ct. at 1344 (emphasis in original).

The Supreme Court's concern for the conduct of secret police interrogation reached a new level of acuity with the Court's incorporation of the privilege against self-incrimination as an element of due process applicable to the states through the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S.Ct. 1489, 1492-95, 12 L.Ed.2d 653 (1964). That concern, in turn, led to the Court's well-known decisions in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)--pressing the sixth amendment right to counsel into service to protect the privilege against self-incrimination after the onset of adversary judicial proceedings, and before their onset in the circumstances defined in Escobedo19--and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requiring the recitation of warnings after the onset of custodial interrogation to enforce the privilege against self-incrimination.

The advent of these decisions enforcing the newly incorporated privilege against self-incrimination, however, did not change the Supreme Court's solicitude for scrutiny of confessions exacted by coercion. In 1978 the Court again affirmed that the ultimate question of the voluntariness of a confession is one of law. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978):

If, therefore, Mincey's statements to Detective Hust were not " 'the product of a rational intellect and a free will,' " Townsend v. Sain, 372 U.S. 293, 307 [83 S.Ct. 745, 754, 9 L.Ed.2d 770] [ (1963) ], quoting Blackburn v. Alabama, 361 U.S. 199, 208 [80 S.Ct. 274, 280, 4 L.Ed.2d 242] [ (1960) ], his conviction cannot stand. In making this critical determination, we are not bound by the Arizona Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record.

Id. at 398, 98 S.Ct. at 2416 (emphasis added). The majority now reasons that Mincey v. Arizona, and each of its direct-appeal predecessors, are now overruled.

It is important to understand the reason for this conclusion and the significance of its ramifications. As the majority properly notes, there is no distinction between the definition of "fact" for purposes of direct appeal and habeas corpus. Maj. op., at 1463 n. 12. Had the voluntariness of Mincey's confession been an ultimate question of fact, the Supreme Court would have asked only whether the Arizona courts had applied the proper legal standard--whether, under the totality of the circumstances, the defendant's will was overborne--in finding this fact. In Mincey there was no dispute that the Arizona courts had indeed applied the proper legal standard. If the question of voluntariness were one of ultimate fact, therefore, the Supreme Court would simply have affirmed, noting that the proper legal standard had been applied. Instead, holding that the ultimate question of voluntariness is one of law, the Court reversed, concluding as a matter of law that the confession was involuntarily made. Thus the majority reasons, with commendable candor, that Mincey is overruled. Similarly, the majority concludes that the entire direct-appeal line of decisions, and the direct-appeal doctrine itself in confession cases, have been reversed sub silentio.

The ramifications of this holding are of the highest order. In the majority's view, the Supreme Court itself is barred on direct appeal from making an independent determination of the voluntariness of a confession. That function, again in the majority's view, is open to the federal courts only in habeas corpus, and only when a state court "finding" of voluntariness is not fairly supported by the record as a whole. Thus, all independent federal scrutiny over confessions--both on direct appeal to the Supreme Court and in habeas corpus--would be gravely impaired. It is for precisely this reason that the Supreme Court has reiterated that the ultimate question of voluntariness is a mixed question of fact and law. And it is precisely this judgment of the Supreme Court that the majority today maintains has been overruled.

The majority's conclusion that this upheaval in Supreme Court jurisprudence was the work of Miranda is erroneous. Perhaps it is too simple to point out that the Supreme Court decided Mincey v. Arizona in 1978, twelve years after the Court's decision in Miranda. In Mincey, after all, Miranda warnings were not given;20 it would be a sophism indeed to rely on Miranda as a foundation for doctrinal change when Miranda itself is violated. But there is no such distinction in Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam).21 In Hutto, a habeas corpus proceeding, the defendant had received Miranda warnings; indeed, he had also volunteered a confession with the advice and in the presence of counsel Hutto, 429 U.S. at 29, 97 S.Ct. at 203. Despite the giving of Miranda warnings and the presence of counsel, the Court characterized the voluntariness of the confession as an ultimate issue of law. In particular, the Court did not apply section 2254(d) to the issue of voluntariness. The presence of counsel and giving of Miranda warnings were simply factors for consideration in the determination of voluntariness. See Davis v. North Carolina, 384 U.S. 737, 740-41, 86 S.Ct. 1761, 1763-64, 16 L.Ed.2d 895 (1966).

The theory that Miranda worked a doctrinal upheaval in Supreme Court jurisprudence may have been grist for an advocate's brief in Hutto and Mincey. It is not, however, a theory open to us as a inferior federal court bound by Supreme Court precedent. And it seems at least relevant that eight Federal Circuits have rejected the theory that Miranda altered the Supreme Court's voluntary-confession doctrine. Each of these courts addressing post-Miranda events has held that the ultimate question of the voluntariness of a confession is a one of law.22

Finally, the majority's holding sends the wrong signal to law enforcement officers. Its message--obtain a Miranda waiver and only then employ "sophisticated modes of 'persuasion,' " Blackburn, 361 U.S. at 206, 80 S.Ct. at 279--renders the court's reliance on the prophylaxis of Miranda sophistical and offensive.

To summarize, as recently as 1978 the Supreme Court confirmed what it had held on some fifty prior occasions. A confession is voluntary if it is the product of a free will and a rational intellect. The ultimate question of the voluntariness of a confession is one of law. While the historical circumstances surrounding the making of a confession are subject to the strictures of section 2254(d), the conclusion of voluntariness is not. The presence or absence of Miranda warnings is simply one factor for evaluation under the totality of the circumstances.

"Very weighty considerations," the Court has held, "underlie the principle that courts should not lightly overrule past decisions." Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403, 90 S.Ct. 1772, 1789, 26 L.Ed.2d 339 (1970). The Supreme Court does not make it a practice to overrule doctrines of long standing without a reasoned explanation of its judgment. See Foremost Ins. Co. v. Richardson, 457 U.S. 668, 672-77, 102 S.Ct. 2654, 2657-60, 73 L.Ed.2d 300 (1982); United States v. Reliable Transfer Co., 421 U.S. 397, 401-11, 95 S.Ct. 1708, 1710-16, 44 L.Ed.2d 251 (1975); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 240-53, 90 S.Ct. 1583, 1586-94, 26 L.Ed.2d 199 (1970); Moragne, 398 U.S. at 403-05, 90 S.Ct. at 1789-90. This settled practice notwithstanding, the majority today holds that three recent Supreme Court decisions overruled sub silentio almost half a century of Supreme Court precedent on voluntary confessions. These cases had no such purport.

The first of these decisions, Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983), examined the voluntariness of a plea of guilty. The Supreme Court held:

We entirely agree with the Court of Appeals for the Sixth Court that the governing standard as to whether a plea of guilty is voluntary for purposes of the federal Constitution is a question of federal law ..... and not a question of fact subject to the requirements of 28 U.S.C. Sec. 2254(d). But the questions of historical fact which have dogged this case from its inception--what the Illinois records show with respect to respondent's 1972 guilty plea, what other inferences regarding those historical facts the Court of Appeals for the Sixth Circuit could properly draw, and related questions--are obviously questions of "fact" governed by the provisions of Sec. 2254(d).

103 S.Ct. at 849. Marshall obviously undermines any suggestion that the Court had receded from its view that the ultimate question of the voluntariness of a confession is one of law. To be sure, the Court noted that "inferences regarding those historical facts" are governed by section 2254(d). But the voluntariness of a guilty plea, the Court expressly held, is not such an inference.

Moreover, the policies that moved the Supreme Court to characterize the voluntariness of a confession as an ultimate issue of law are absent in the case of a plea of guilty. The Court has never reasoned superficially that the "voluntariness" of a confession concerns a "state of mind" and that all issues of "state of mind" could be classified a priori as either "fact" or "legal conclusion." Our legal characterizations have deeper truths. The Court describes the voluntariness of a confession as a legal issue because confessions are the product of police interrogation generally conducted in closed proceedings and inherently coercive settings. The truth is difficult to penetrate in these proceedings; in order to prevent the shielding of claims of federal right on direct appeal to the Supreme Court, the Court retained a measure of power to draw independent inferences from the historical facts of record. But no such circumstances are present during the allocution of a guilty plea. These pleas are entered in open court under prescribed conditions with the benefit of counsel and with a full stenographic record of the allocution. Nothing could be further from the inherently coercive setting of secret police interrogation. Thus the need for independent federal review of the voluntariness of guilty pleas is less acute than that for confessions obtained during police interrogation. And yet the Supreme Court in Marshall reaffirmed that the voluntariness of even a guilty plea entered in open court is a mixed question of law and fact. If Marshall v. Lonberger speaks at all to voluntary confessions, it counsels more strongly than ever that the voluntariness of a confession is an ultimate issue of law.

The remaining two cases on which the majority relies--Rushen v. Spain, --- U.S. ----, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam), and Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam)--also do not affect the voluntary-confession doctrine. Both of these cases are per curiam summary reversals decided without briefing or argument; it would be extraordinary, to say the least, if the Supreme Court intended two per curiam summary dispositions to overrule a half century of Supreme Court doctrine. But of course they do not. Neither case addresses the voluntariness of a confession. Maggio arguably holds that a defendant's competence to stand trial is an issue of fact subject to section 2254(d), notwithstanding the contrary holding of Drope v. Missouri, 420 U.S. 162, 174-75 & n. 10, 95 S.Ct. 896, 905-06 & n. 10, 43 L.Ed.2d 103 (1975). Like the entry of a guilty plea, however, the defendant's competence to stand trial is adjudicated in open court after a competence hearing, Pate v. Robinson, 383 U.S. 375, 385-86, 86 S.Ct. 836, 842-43, 15 L.Ed.2d 815 (1966). The trial court witnesses all of these proceedings and renders credibility findings; counsel is generally present unless that right is waived; and a stenographic record is prepared for the purpose of appellate review. The policies requiring a measure of independent federal scrutiny over confessions obtained during secret police interrogation apply with far less force to the determination of the competence of a witness to stand trial made after a Pate hearing.

Rushen holds that the effect of ex parte communications on the impartiality of a juror is a question of fact subject to section 2254(d). This unremarkable conclusion is wholly consistent with the voluntary-confession doctrine. Although such ex parte communications do take place outside of the presence of the trial court, they do not occur in the inherently coercive setting of police interrogation and, more importantly, do not implicate the danger of self-incrimination of the defendant. The need for independent federal scrutiny of the impact of ex parte communication on the jury is far more attenuated than that appropriate to the confession of a defendant offered at trial. In drawing this conclusion the Rushen Court nowhere even alluded to the voluntary-confession doctrine.

In short, the suggestion that Marshall, Maggio, and Rushen overruled the voluntary-confession doctrine sub silentio is simply ludicrous. That doctrine retains the vitality it has enjoyed for almost fifty years. It may be the prerogative of a majority of the Supreme Court "to overrule, sub silentio, a century of precedents," as Justice Roberts put it. James v. Dravo Contracting Co., 302 U.S. 134, 161, 58 S.Ct. 208, 221, 82 L.Ed. 155 (