The opinion of the court was delivered by
The defendant was indicted for murder and is awaiting trial. He served notice that he would move for an order before trial excluding his alleged confession on the ground that it “was tendered under circumstances which would not comply with the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).” The notice also set forth that the motion would be limited to the issue of whether Miranda had been satisfied and would not “precludе the defendant from raising this and any other exclusionary grounds” at the trial. The trial judge undertook to hear the motion despite its fragmented form, took the testimony of the police and the defendant, and ultimately entered an order excluding the confession as inadmissible under Miranda. Pursuant to the State’s application, leave to appeal to this Court was granted. R. R. 1:2-4(c).
Under our long-standing practiсe, the determination as to the admissibility of a confession is properly made at rather than prior to trial. See
State v.
Cicenia, 6
N. J.
296, 301-02 (1951),
certiorari
denied 350
U. S.
925, 76
S. Ct.
215, 100
L. Ed.
809 (1955);
State v. Green,
49
N. J.
244
(1967); cf. State v. Ferrara,
95
N. J. Super.
329
(App. Div.
1967). Proposed alterations of the practice were the subject of discussion at the last Judicial Conference and are receiving study. See 90
N. J. L. J.
257 (1967). In the meantime and pending the promulgation of formal rules, pre-trial exclusory motions addressed to confessions, рarticularly where fragmented as here, are not to be entertained. However, in the instant matter, the motion was heard with
On September 10, 1966 the decedent James Disney was mugged in Paterson and suffered wounds from which he died. On September 13th two detectives of the Paterson police force visited the home of the defendant Thomas LeRoy Yough, Jr., told his mother that they wanted to speak to her son about an investigation of an auto accident, and told him that they would like him to accompany them to headquarters. He did so and arrived there shortly after noon. He had lunch and waited in a room by himself until Detective Mohl arrived at 1 p. m. At that time the defendant was told that he was there in connection with thе investigation of a mugging which had resulted in the victim’s death. The detective testified that he advised the defendant that he had the “right to remain silent,” that he had the “right to a lawyer” and that a lawyer would be supplied to him “at his request.” He also testified' that he told the defendant that anything he said “may be taken down and used in court against him” and that “he had a right to a lawyer even if he couldn’t afford one.” In respоnse to a question from the trial judge as to what the defendant had said after he was first warned and told about a lawyer, the detective testified that the defendant said he “didn’t want a lawyer.”
Detective Mohl testified that after he had warned the defendant and had specifically asked him whether he understood his rights, the defendant affirmatively said that he did. The detective stated that he repeatеd the warnings, and he noted that it was his consistent practice since
Miranda
to warn suspects repeatedly as to their constitutional rights. He stated further that the defendant, after he had been warned of his rights, said that he wanted to tell him about the mugging incident and that he proceeded to do so orally. After the defendant had completed his oral remarks, the detective told him that a typewritten statement was going to be taken and again advised him that he had the right to remain silent, that any statement could be used against him in court, that he had
According to the State’s evidence, the defendant filled in and signed a waiver document before the written statement was taken. The date, the time, his name, and the signature affixed to the document which read as follows, were written by the defendant in ink and in a firm, clear hand:
“Paterson Police Detective Bureau
Date 9-13-66 ' Time 3_PM
I Thomas Yough knowing where I am, why I am here, have been told that I need not say anything as it may be used against me in a court of law. I have been told that I may call my attorney, or if I cannot afford one, an attorney would be supplied me.
No threats, promises or duress have been used. Knowing- and understanding what this means, I waive my right to remain silent and wish to give a statement.
SIGNED Thomas Yough
Sworn & Subscribed before me this 13 day of Sept. 1966
Martin S. Brennan /s/
Notary Public of New Jersey
My commission expires June 10, 1968”
The defendant’s written statement was taken in question and answer form with the questions being asked by Detective Mohl and being typed by Detective DeSilva. It bore the time 3 :05 p. M. and the date September 13, 1966. It started out as follows: “I am Det. Sgt. Robert Mohl of the Paterson Police Dept. I am going to ask you some questions in reference to the crime for which you have been arrested. You may answer them or not; just as you wish; but what you say must be of your own free will, voluntarily, as this statement will be taken in writing and may be used at your trial.” After the defendant answered preliminary questions as to his name and address, and answered affirmatively as to his ability to read and write English, he was asked, “Do you know why you are here?” The response was: “Yes, for mugging and a death
During the course of the questioning, the defendant was told that his mother and father were there and he was asked whether he wanted to talk with them. He said, “Yes, but only for two or three minutes.” At that point, which was 4 p. 11., the taking of the statement was stopped while the defendant spoke with his mother and father in a separate room. At 4:30 p. at. the taking of the statement resumed. Toward its close, the defendant was asked whether he wished to add anything and he said “no” and in response to an inquiry whether he had told the truth he said “yes.” He also answered “yes” to the final question which read: “I will now ask you to read this statement, correct any and all errors that you may find and initial same. After doing this I will ask you to sign it to show that it was given by you voluntarily without any force, fear, threats, or promise of reward. Will you sign it?” The statement was initialed on each page by the defendant, was signed by him, was witnessed by Detectives DeSilva and Mohl and was notarized by Donald F. Young, a Notary Public of Few Jersey. The testimony of the police officers indicates that the signing took place at about 5 p. at.
Detective DeSilva testified that, in his presence. Detective Mohl warned the defendant as to his rights and that the defendant said he did not want a lawyer and would give a statement. He also testified that the defendant read the waiver document before he signed it and read the written statement before he initialed and signed it. He described the half hour interruption in the taking of the statement during which the defendant spoke to his parents in a separate room. The record indicates that thе parents were in the court room during the hearing before the trial judge, but they offered no testimony in opposition to the State’s evidence. However, the de
While doubting the number of warnings, the trial judge made an explicit finding that the defendant had in fact been warned. As he put it: “Now, there is no doubt that Detective Mohl is a very intelligent police officer and is fully cognizant of the
Miranda
opinion and requirements and has probably been instructed in police methods in an effort to comply with it. I find that he did warn the defendant in the terms that he stated them.” Despite this finding, the trial judge concluded that
Miranda
had not been satisfied and that the confession should therefore be excluded. In reaching his conclusion he seems to have been troubled by suggested deficiencies in the form of the detective’s warnings and in the nature of the defendant’s waiver. He noted that the detective did not state in specific language that the defendant had the right to a lawyer before any questioning and before he decided whether he wanted to remain silent or give a statement. But the warnings were clearly intended to convey that thought and we have no reason to doubt that they did actually convey
The more cruсial basis for the trial judge’s exclusion of the confession was his finding that the State had not established beyond reasonable doubt that the defendant had “knowingly and intelligently” waived his privilege against self-incrimination and his right to counsel.
Miranda v. State of Arizona, supra,
384
U. S.,
at
p.
475, 86
S. Ct.,
at
p.
1602, 16
L. Ed. 2d,
at
p.
724. This finding was largely grounded on the-rejection of the State’s evidence that the defendant had said before his oral interrogation that he did not want a lawyer. But our study of the reсord firmly convinces us that the State’s evidence was credible, not only as to the warnings given to the defendant, but also as to the defendant’s responses. While there was no writing which bore directly on the defendant’s oral assertions shortly after 1 p. m., the later writings serve to strengthen the conclusion that, from the inception and throughout, the defendant’s affirmative position was that he did not want a lawyer but wanted to make a statement though he knew his constitutional rights including the right to remain silent. It must be borne in mind, as the trial judge recognized, that the warnings were given in a conscientious effort to fulfill the requirements of
Miranda,
that the defendant responded in the affirmative when he was asked whether he understood his rights as outlined to him, that the defendant then said, according to the State’s evidence, that he did not want a lawyer but wanted to make a statement, and that the defendant later filled in and signed the waiver document
There is no question as to the power of this Court to make new fact-findings on the basis of the record before it. State v. Johnson, 42 N. J. 146, 158 (1964). While the power is not generally invoked to displace ordinary fact-findings by the trial judge who saw and heard the witnesses, it will be invoked in those situations where the sound administration of justice calls for appellate “intervention and correction.” State v. Johnson, supra, 42 N. J., at p. 162. We сonsider this to be such a situation, particularly since here the findings were not exclusively factual but were intertwined with legal implications drawn by the trial judge from the opinion in Miranda. Cf. State v. Daniels, 38 N. J. 242, 250 (1962), certiorari denied 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963). Thus he stressed that the defendant’s “mere silence” would not- constitute a waiver; he expressed the view that the waiver document did not “technically comply” with the Supreme Court’s requirements; and he indicated that the language contained in the waiver document and in the written statement would not serve to satisfy him that there had been .a waiver by the defendant of his “constitutional rights.”
We agree that, under
Miranda,
waiver will not be presumed “from the silence of the accused after warnings are .given.” 384
U. S.,
at
p.
475, 86
S. Ct.,
at
p.
1628, 16
L. Ed. 2d,
at
p.
724. But waiver need not take a designated legal form or be expressed in designated legal terminology; indeed, .as
Miranda
explicitly acknowledges, “an express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could ■constitute a waiver.” 384
U. S.,
at
p.
475, 86
S. Ct.,
at
p.
1628, 16
L. Ed. 2d,
at
p.
724. That was the very situation here as it appears from the whole record. We reject the sug
Before the opinion in Miranda was handed down, there was belief in some circles that the Suprеme Court would outlaw all confessions by unrepresented suspects in custody. See State v. Coleman, 46 N. J. 16, 34 (1965), certiorari denied 383 U. S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). Miranda did not do that but permitted the continued use of such confessions where the accused, after having been suitably warned, affirmatively waived his constitutional rights and made a voluntary confession. While the Supreme Court pointed out that the prosecution would have the “heavy burden” (384 U. S., at p. 475, 86 S. Ct., at p. 1602, 16 L. Ed. 2d, at p. 724) of establishing the waiver, it did not cоntemplate an impossible burden. Indeed, nowhere in its opinion did it describe the burden in terms of proof beyond a reasonable doubt although the trial judge here, with the State’s consent, used that standard in excluding Yough’s confession.
In
Clifton v. United States,
371
F. 2d
354
(D. C.
Cir. 1966) a divided court held that, although a trial judge may not admit a confession into evidence unless he is satisfied and so finds from the proofs that the confession was voluntary and wаs obtained in constitutional manner, he need not make any finding that the proofs met the standard of “beyond a reasonable doubt.” In reaching its holding, the court relied heavily on the traditional evidential principle under which the trial judge passes on the admissibility of evidence, and where the admissibility rests on a qualification or condition, makes preliminary inquiry and finding as to its presence. See Rule 8 printed in
N. J. S. A.
following 2A:84A-16
In
Scott v. State, supra,
the Supreme Court of Ohio indicated that where evidence of other offenses was being properly offered on the issue of intent, the other offenses would not have to be established beyond a reasonable doubt; in the ■course of its opinion it discarded
Baxter v. State,
91
Ohio St.
167, 110
N. E.
456, 458 (1914) which had apparently embraced a contrary view. 141
N. E.,
at
pp.
26-27; see
Caruthers v. State,
406
S. W. 2d
159, 161-162
(Tenn. Sup. Ct.
1966);
State v. Waits,
1
Ariz. App.
463, 404
P. 2d
729, 732 (1965);
cf. People v. Albertson,
23
Cal. 2d
550, 145
P. 2d
7, 22 (1944). In
Commonwealth v. Polian, supra,
the Supremo Judicial Court of Massachusetts rejected the notion that a dying declaration was not to be admitted in evidence until all of its elements had been established beyond a reasonable doubt; аlthough it cited contrary holdings elsewhere, it expressed the better view to be that “it is enough to prove by a preponderance of the evidence the necessary preliminary facts.” 193
N. E.,
at
p.
70;
cf. State v. Monich,
74
N. J. L.
When dealing with confessions, the holding in Clifton v. United States, supra, 371 F. 2d 354, finds support in some cases but not in others. Compare People v. Golson, 32 Ill. 2d 398, 207 N. E. 2d 68, 70 (1965), certiorari denied 384 U. S. 1023, 86 S. Ct. 1951, 16 L. Ed. 2d 1026 (1966) with State v. Carter, 33 Wis. 2d 80, 146 N. W. 2d 466, 471 (1966). Indeed most of the recent decisions impose on the trial judge the responsibility of finding the confession’s admissibility beyond reasonable doubt although they apparently speak in terms of preferable practice rather than constitutional requirement. See, e. g., State v. Keiser, 274 Minn. 265, 143 N. W. 2d 75 (1966) where the court noted that because of the devastating nature of a confession “it would seem only fair to say that on the issue of voluntariness a mere prima facie showing or a preponderance of the evidence should not satisfy the court.” 143 N. W. 2d, at p. 79. See also United States v. Inman, 352 F. 2d 954, 956 (4 Cir. 1965); People v. Huntley, 15 N. Y. 2d 72, 78, 255 N. Y. S. 2d 838, 843, 204 N. E. 2d 179, 183 (1965) ; State v. Ragsdale, 249 La. 420, 187 So. 2d 427 (1966) , certiorari denied 385 U. S. 1029, 87 S. Ct. 758, 17 L. Ed. 2d 676 (1967); but cf. State v. Brewton, 238 Or. 590, 395 P. 2d 874 (1964).
In
Jackson v. Denno,
378
U. S.
368, 84
S. Ct.
1774, 12 L.
Ed. 2d
908 (1964), the Supreme Court announced a constitutional rule that “a jury is not to hear of a confession until the trial judge has determined that it was freely and voluntarily given.”
Sims v. Georgia,
385
U. S.
538, 87
S. Ct.
639, 643, 17
L. Ed. 2d
593, 598 (1967). Our own practice clearly fulfills this requirement, for we follow the so-called Massachusetts or humane rule under which the trial judge conducts a preliminary hearing, and if he is satisfied that the confession was voluntary he admits it into evidence, without informing the jury of his finding but instructing it to disregard the confession if it finds that the State has not provеd
Nothing in
Miranda
or in a,ny of the other Supreme Court holdings since
Jackson v. Denno, supra,
dictates that the trial judge’s finding of admissibility be formally rested on proofs beyond reasonable doubt. Nor do we consider that the matter should be viewed as one of constitutional dimension in the light of the оther substantial safeguards now afforded to defendants in all jurisdictions including those which follow the more traditional evidential principle that the reasonable doubt standard, designed to govern the “whole issue” of guilt or innocence (IX
Wigmore, supra
§ 2497,
p.
324), does not apply to the preliminary inquiry and finding on admissibility by the trial judge. See
Commonwealth v. Polian, supra,
193
N. E.,
at
p.
70;
cf. State v. Billingsley, supra,
46
N. J.,
at
p.
232. Notwithstanding the foregoing, the trend of the Supreme Court’s recent opinions may lead to thе belief that
Jackson v. Denno
and
Miranda
will be supplemented in due
Reversed.
For reversal — Chief Justice Weinteaub and Justices Jacobs, Fkafcis, Peootoe, Hall, Schettino and Haneman — 7.
For affirmance — None.