137 DOUGLAS, J., dissenting. when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." What reason is there for making one specific exception for cases arising in the land or naval forces or in the militia if none of the Fifth Amendment is applicable to military trials? Since the requirement for indictment before trial is the only provision of the Fifth Amendment made inapplicable to military trials, it seems to me clear that the other relevant requirements of the Fifth Amendment (including the ban on coerced confessions) are applicable to them. And if the ban on coerced confessions is applicable, how can it mean one thing in civil trials and another in military trials? The prohibition against double jeopardy is one of those provisions. And consistently with the construction I urge, we held in Wade v. Hunter, 336 U. S. 684, 690, that court-martial action was subject to that requirement of the Fifth Amendment. The mandates that no person be compelled to be a witness against himself or be deprived of life or liberty without due process of law are as specific and as clear. They too, as the Court of Appeals held, are constitutional requirements binding on military tribunals. If a prisoner is coerced by torture or other methods to give the evidence against him, if he is beaten or slowly "broken" by third-degree methods, then the "trial" before the military tribunal becomes an empty ritual. The real trial takes place in secret where the accused without benefit of counsel succumbs to physical or psychological presA soldier or sailor convicted in that manner has sures. DOUGLAS, J., dissenting. 346 U.S. been denied due process of law; and, like the accused in criminal cases (see Moore v. Dempsey, 261 U. S. 86; Johnson v. Zerbst, 304 U. S. 458; Walker v. Johnston, 312 U. S. 275; Pyle v. Kansas, 317 U. S. 213; Von Moltke v. Gillies, 332 U. S. 708), he should have relief by way of habeas corpus. The opinion of the Court is not necessarily opposed to this view. But the Court gives binding effect to the ruling of the military tribunal on the constitutional question, provided it has given fair consideration to it. If the military agency has fairly and conscientiously applied the standards of due process formulated by this Court, I would agree that a rehash of the same facts by a federal court would not advance the cause of justice. But where the military reviewing agency has not done that, a court should entertain the petition for habeas corpus. In the first place, the military tribunals in question are federal agencies subject to no other judicial supervision except what is afforded by the federal courts. In the second place, the rules of due process which they apply are constitutional rules which we, not they, formulate. The undisputed facts in this case make a prima facie case that our rule on coerced confessions expressed in Watts v. Indiana, 338 U. S. 49, was violated here. No court has considered the question whether repetitious questioning over a period of 5 days while the accused was held incommunicado without benefit of counsel violated the Fifth Amendent. The highest reviewing officer, the Judge Advocate General of the Air Force, said only this: "After reading and re-reading the record of trial, there is no reasonable doubt in my mind that all the confessions were wholly voluntary, as the court decided, and were properly admitted. Where the evidence as to whether there was coercion is conflict 137 DOUGLAS, J., dissenting. ing, or where different inferences may fairly be drawn from the admitted facts, the question whether a confession was voluntary is for the triers of the facts (Lyons v. Oklahoma, 322 U. S. 596; Lisenba v. California, 314 U. S. 219). Thus the court's decision on the voluntary nature of the testimony, arrived at from first-hand hearing and observation, is presumptively correct and will not be disturbed unless manifestly erroneous (MGM Corporation v. Fear, 104 F. 2d 892; ACM 3597, Maddle, 4 Court-Martial Reports [AF] 573)." There has been at no time any considered appraisal of the facts surrounding these confessions in light of our opinions. Before these men go to their death, such an appraisal should be made. NO. 391. STEIN v. NEW YORK. CERTIORARI TO THE COURT OF APPEALS OF Argued December 18, 1952.-Decided June 15, 1953. In a New York state court, a jury found the three petitioners guilty of murder, and they were sentenced to death. The murder allegedly was committed while petitioners, and an accomplice who turned state's evidence, were engaged in an armed holdup. The evidence at the trial included separate written confessions by two of the petitioners. Each written confession implicated all three petitioners and all objected to introduction of each confession on the ground that it was coerced. The trial court denied a motion by the third petitioner that, if the confessions were admitted, all reference to him be stricken from them. The court heard evidence in the presence of the jury as to the issue of coercion and left determination of that issue to the jury, which rendered a general verdict of guilty. The New York Court of Appeals affirmed without opinion. Held: There was no violation of the Fourteenth Amendment in the proceedings, and the judgments are affirmed. Pp. 159-197. 1. Petitioners were not denied a fair hearing on the coercion issue. Pp. 170-179. (a) The Fourteenth Amendment cannot be construed as allowing petitioners to testify to their coercion by the police. without becoming subject to any cross-examination. Pp. 174-176. (b) In the trial of a coercion issue, as of every other issue, when the prosecution has made a case to go to the jury, an accused must choose between the disadvantage from silence and that from testifying. P. 177. (c) The Fourteenth Amendment does not forbid jury trial of the issue whether a confession was coerced; nor does it forbid its submission to a jury tentatively and with proper instructions along with the issue of guilt, although a general verdict of guilty *Together with No. 392, Wissner v. New York, and No. 393, Cooper v. New York, also on certiorari to the same court. does not disclose the jury's decision on the issue of coercion. Pp. 177-179. 2. On the record in this case, it did not violate the Fourteenth Amendment if the jury resolved that the confessions were admissible as a basis for conviction. Pp. 179-188. (a) When the issue as to whether confessions were coerced has been fairly tried and reviewed by the courts of a State, and there is no indication that constitutional standards of judgment have been disregarded, this Court will accept the state's determination of the issue, in the absence of impeachment by conceded facts. Pp. 180-182. (b) Upon the evidence in this case, the state courts could properly find that the confessions were not obtained by physical force or threats. Pp. 182-184. (c) Upon the evidence in this case, the state courts could properly find that the confessions were not obtained by psychological coercion. Pp. 184-186. (d) The illegal delay in the arraignment of petitioners did not alone require rejection of the confessions under the Fourteenth Amendment. Pp. 186-188. 3. If the jury rejected the confessions, it could constitutionally base a conviction on other sufficient evidence. Pp. 188-194. (a) There was no constitutional error in the trial court's refusal of petitioners' request for instruction to the jury that, if it found the confessions to have been coerced, it must return a verdict of acquittal. Pp. 188-193. (b) The submission of a confession to a state jury tentatively and under proper instructions for judgment of the coercion issue does not preclude a conviction on other sufficient evidence if it rejects the confession. P. 190. (c) The other evidence of petitioners' guilt, consisting of direct testimony of the surviving victim and of a well-corroborated accomplice, as well as incriminating circumstances unexplained, is such that, apart from the confessions, it could not be held constitutionally or legally insufficient to warrant the jury verdict. Pp. 190-192. (d) The Fourteenth Amendment does not enact a rigid exclusionary rule of evidence rather than a guarantee against conviction on inherently untrustworthy evidence. Pp. 192-193. (e) Whatever may have been the grounds of the New York Court of Appeals' affirmance of the judgments in this case, the |