# People v. Fournier Sampedro

> Supreme Court of Puerto Rico · November 5, 1954 · 77 P.R. 208

URL: https://www.frixlaw.com/law-library/cases/8536825

## Case

- **Full name:** The People of Puerto Rico, and v. Ramón Antonio Fournier Sampedro, and
- **Court:** Supreme Court of Puerto Rico
- **Decided:** November 5, 1954
- **Citations:** 77 P.R. 208
- **Precedential status:** Published
- **Opinion:** Dissent by Ortiz
- **Judges:** Belaval, Fernández, Marrero, Ortiz, Pimentel, Sifre, Snyder, Whom
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8536825

## Opinion text

Mr. Justice Ortiz,
dissenting.
The opinion of this Court contains an excellent discussion of all the problems and points of view involved in this appeal. Its excellence is manifested through the objective and efficient manner in which all the authorities and the judicial precedents relevant to the decision of this case are fully set forth. There is no margin for the search for additional precedents. But precisely on the basis of the study made in the majority opinion I feel compelled to dissent from the conclusions set forth by this Court, from its final decision and from the results which are the consequence of that opinion.
I am convinced that the confession made by the defendant on the night of October 9-10, 1950, far from being absolutely and as a matter of law involuntary, was voluntary, because it was a genuine expression of defendant’s will and mind, without being the result of any coercion whatsoever, whether physical or psychological. The defendant, an intelligent and educated man, mature, shrewd, always on the alert and always well aware of his rights, was submitted to a persistent examination for a period of six hours by a single person, the prosecuting attorney, and finally he confessed. It in nowise appears from the record that upon confessing, the defendant’s will had been overwhelmed or that he had lost control of his mental faculties or that his intellectual free *294 dom had been impaired, or his mental resistance ovérpow-ered by any kind of coercion. In order to justify the conclusion reached by this Court to the effect that the confession was involuntary uncontrovertedly and as a matter of law, it must be established that the interrogation was of such a nature, and the atmosphere and circumstances surrounding the defendant were such that his confession was involuntary, that is, that it was not the action of his will in the sense that his mental freedom had been unduly overpowered and his mental resistance overwhelmed. Thus, the only relevant investigation of the question at issue is whether or not the confession was voluntary and.not whether or not the prosecuting attorney acted improperly, without affecting the voluntariness of the confession, or whether his questions were not reasonable or within fair play because they were aggressive. We must not forget that a jury, as a court which decided the facts, found defendant guilty; that it considered the question of fact concerning the voluntariness of the confession under.instruction of the judge; that it considered all the circumstances concerning the form and manner in which said confession had been made, and, since it found the defendant guilty, it must be presumed that it also determined the voluntary nature of the confession. We are now setting aside a finding of fact made by the jury. Of course, the only way we could do it would be by holding, as this Court does, that the confession inherently, automatically, as a question of law and not of fact, inexorably and uneon-trovertedly, was involuntary. I cannot accept that criterion. Anticipating a more elaborate, subsequent discussion, the voluntariness of the confession was buttressed by several subsequent facts, to wit: that the defendant himself, at the trial, adopted and ratified the truth, validity and authenticity of the confession by accepting the facts set forth therein and using them as a basis for his theory of defense, thereby curing the confession of any possible defect; that a counsel *295 for the defendant, speaking for him, admitted that the confession had been voluntary and that defendant himself, several hours after having made the confession in question, made a second confession which this Court admits was valid and voluntary, in which he tranquilly arid calmly confessed the crime, with abundance of details, said second confession having cured any possible defect in the first, and the jury having been able to use that second confession to convict the defendant, and finally, we must also consider that there was independent proof, aside from the confession in question, which justified a verdict of guilty.
In view of the circumstances enumerated, I believe that to set aside the verdict of guilty and the corresponding judgment is contrary to the realities and the intrinsic justice of this specific case. I am particularly concerned with the fact that the effect of this Court’s opinion with respect to the intensity of defendant’s interrogation, not desired, naturally, by this Court, may be that of destroying fully the effectiveness of criminal investigations in Puerto Rico, manacling the prosecuting attorneys and preventing them from properly interrogating suspects. The result of this Court’s opinion, although not contemplated by the judges of the majority, could be that of establishing standards of excessive pulchritude on the part of the prosecuting attorneys with respect to criminals. Naturally, I believe in the purity of proceedings, but not to an extent so refined and excessive as to render practically impossible the investigation of crimes. I do not believe in the mailed fist or in the ordeal by fire for suspected criminals, but neither do I believe in excessive tenderness. I do not believe in inquisition, but neither do I, nor my colleagues, believe in a paradise for criminals. I do not believe in totalitarianism, but I believe that a democracy can and must have efficient prosecuting attorneys. As said on previous occasions, the prosecuting attorney should not sit in front of his house, like the Arab, *296 and wait for his enemies to go by. This is not the result desired by this Court but, in my judgment, it could be the effect of the opinion.
Naturally, I have spoken in terms of extreme categories and neither the undersigned nor the distinguished magistrates of the majority in the instant case have assumed extreme positions. There should be no absolute and rigid principles, and the differences in degrees should be exhibited according to the special circumstances of each case. I believe that the circumstances of this specific case do not warrant this Court to approach the verge, even without intention, of rendering useless the power of investigation of the prosecuting attorneys. The question of the voluntariness of confessions is an aspect of the eternal problem concerning the contrast between individual rights and social interests, between extreme romantic individualism and basic social needs. In speaking of social rights I am not referring to society as an intangible concept divorced from reality. I mean that the greatest individualism is that of the greatest possible number of individuals, that the broadest form of freedom is the individual freedom of the majority of the persons who constitute society. From that point of view the excessive protection of the personal integrity of a criminal may result in a system endangering the personal integrity of the rest of the individuals who constitute society. I understand that it is the function of a Constitution, and of this Court, to protect the constitutional rights of any citizen, or group of citizens, even if they are a minority of the population. The rights of the minority should be protected, even if they are a group of suspected criminals. But what I mean to say is that those rights are not absolute; that they do not belong in the vacuum of intellectual abstraction. The content of an individual right ought to vary in conformance with the rights of the other citizens. A defendant is entitled to due process of law and should be protected against *297 self incrimination. But there is nothing precise, systematic and exact as to what “due process of law” should be. Although not contemplated by this Court in the instant case, the meaning of those rights must not be so generously broadened by judicial interpretation as to draw an immunity curtain around the defendants and put up a bulwark against the investigation and prosecution of the crime, in prejudice of the personal safety of the rest of the individuals. That, as a matter of general doctrine. Up to what point the protection of the defendant’s rights and the protection of the legitimate functions of public servants whose duty is to defend society should be extended depends on the circumstances of each case. It is important that judicial investigation be objective and realistic, devoid of either a passion for civil rights or a passion for social rights; the result should emerge unaffected by a passion born of the more or less cruel or horrifying circumstances of the specific crime before the Court, or by that other passion, the product of a sense of indignation aroused by the prosecuting attorney’s methods, which can be unfair and scarcely reasonable, but which as a matter of reality do not fall within the category of coercion.
The time has come for me to descend from the clouds of intellectual speculation and consider the specific circumstances of this case. I have merely wished to create a perspective of objectiveness, fully aware of the individual rights of the defendant and the social interest in pursuing criminality legitimately and effectively. Now that we have developed such orientation, we shall consider some of the aspects of the confession made on October 9-10, 1950.
Prior to the confession, defendant had been illegally detained for several days, without warrant of arrest, without having been taken before a magistrate and without having been allowed to consult an attorney or his friends. I repudiate that action which kindles our minds with indignation. But the question we are investigating is not whether that *298 procedure should be punished by the acquittal of the defendant. What we must determine is whether the confession was voluntary or involuntary. If, notwithstanding the illegality of the proceeding, the confession was inherently- voluntary, it does not artificially become involuntary because the procedure did not conform to the Code of Criminal Procedure. As stated in the opinion of this Court, the fact itself that the arrest had been illegal does not imply that the confession was involuntary. This has been established by the Supreme Court of the United States in recent cases. Gallegos v. Nebraska, 342 U. S. 55, 60 ; Stein v. New York, 346 U. S. 156 . Analytically, said ruling is .correct. The exact question for determination as to the involuntariness of the confession because of psychological coercion refers to whether specific pressure imposed on the declarant impairs his mental resistance, his free choice and his mental faculties in such a way that the confession made is not a spontaneous product of his will. Two factors are relevant, the magnitude of the pressure exerted and the personality of the one under pressure, with respect to his maturity, education and intellectual fortitude. The detention itself may constitute a sort of pressure, but the impairment of the will of the suspect is not an inevitable consequence. Detention may be a prelude of “third degree” methods, but it may well happen that the detention is not accompanied by any such methods. Illegal detention may be a relevant circumstance in ascertaining whether there has been any psychological coercion, but the operative factor is the determination of the effect of the detention on the mental process and will of the suspect. Such circumstance loses all significance and relevance when it is proved, as in the case at bar, that notwithstanding the illegal detention, the defendant was in the full and complete possession of his mental faculties when he confessed. As appears from the summary of the occurrences set forth in the opinion of this Court, when the interrogation was begun *299 on the night of October 9, and as it continued, the defendant was obviously mentally alert and with a full understanding of his rights. There is no sign whatsoever that he was in any way mentally exhausted nor does the record reveal that he experienced the slightest mental weakness. He proved to be, throughout the whole interrogation, intelligent, smart, shrewd and energetic in the defense of his interests. He confessed spontaneously in the free' and conscious exercise of his will.
There may be cases where the detention is surrounded by circumstances' giving rise to the inference that the will of the person detained has been impaired, such as the lack of food, sleep and rest. Such circumstances undoubtedly affect the body and physical condition of the person detained and therefore his mind and his will. Precisely, the U. S. Supreme Court has held that the illegal detention constitutes a significant circumstance to show that there has been coercion when the person detained has not been allowed to sleep, rest and take food for a prolonged period of time before confessing. Watts v. Indiana, 338 U. S. 49, 51, 52 . But in other cases where the detention has been illegal, but the defendant has had adequate opportunity to satisfy the rudimentary needs of life, it has been held that the confession is voluntary notwithstanding the illegal detention. Gallegos v. Nebraska, supra; Stein v. New York, supra. In the case at bar, from the summary of the occurrences set forth in the opinion of this Court it appears that at all times during his detention prior to the interrogation which gave rise to the confession, Fournier relaxed, slept and had the kind of food he wanted, whenever he wished. Therefore, there are absolutely no grounds for inferring that the illegal detention would have even tended to produce an involuntary confession. In view of the foregoing, that the illegal detention did not weaken, as a matter of fact, Fournier’s will, and that the circumstances which surrounded the detention in no way *300 impaired his physical and mental condition, the illegal detention lacks all significance and relevancy in the investigation of the issue before us, the voluntariness of the confession. Therefore, it must be completely excluded as a pertinent circumstance, either isolatedly or in connection with the interrogation, since, when the time for interrogation came, the illegal detention had not affected Fournier at all. The majority opinion indicates ■ that the fact itself of the detention, without being allowed to talk to counsel, friends or relatives, could have produced a certain psychological reaction on the part of Fournier, of submission to the authority of the prosecuting attorney and other officials and of desiring to confess in order to put an end to that situation. But the very opinion of this Court reveals that as a matter of specific reality, the detention did not affect Fournier’s will, and, therefore, any possible presumption or inference to the contrary has been rebutted. There is not the slightest sign that Fournier confessed because he considered himself improperly subjected to the will of the prosecuting attorney or because he wished to get away from his illegal detention. The fact that he complained of his detention does not mean that he confessed because of it. His protestation precisely disclose the opposite, an attitude, not of submission and weakness,but of energetic resistance. The force of his allegations showed his complete control over his will.
In brief, there are grounds for moral indignation against Fournier’s detention. But that noble passion must not lead us to hold that the confession was involuntary, when actually and as a matter of fact it was voluntary. The officers responsible should be punished in some other way which is not inconsistent with the specific reality of the facts as they occurred. The public morality may be secured through those other penalties but not through the reversal of the judgment on the basis of the involuntariness of a confession which was actually voluntary. I want to make clear that *301 I am convinced that it was not the intention of the majority of the Court in the instant case to transform the reality of the concepts on the basis of indignation. As I stated before, the majority opinion is worded in objective and serene terms, but the result justifies the general remarks I have expressed, as a matter of general doctrine, and not as a criticism of the elevated language in which the opinion of the Court is written.
I turn now to consider the nature of the interrogation to which Fournier was submitted on the night of October 9, 1950, in order to determine whether said interrogation constituted psychological coercion, that is, whether it weakened Fournier’s will in such a manner that his confession was involuntarily given. As stated in the opinion of this Court, the fact itself that an interrogation is persistent, aggressive, relentless and reasonably continuous does not imply that the confession was involuntary. That was precisely what happened in the instant case. The interrogation lasted only six hours while Fournier was in a completely adequate mental attitude, with full intellectual freedom, mentally alert, conscious of his rights, after having slept, rested and taken food, being a mature man, educated, intelligent, with experience of life and with ample knowledge, of his rights and' of his special position in this case. The interrogation was conducted by a single person, the prosecuting attorney, Viera Martínez, and not by a continuous relay of prosecutors, each with a clear mind as against the weary mind of the suspect. As stated in the opinion of this Court, Viera Martinez himself was more fatigued and had less sleep than Fournier, and from that point of view, Fournier enjoyed a physical and mental advantage. It is clear that there were no “third degree” methods; there was no violence or physical torture, nor a flood of lights continuously over the face of the defendant. Viera Martinez never threatened the defendant nor .made promises of any kind. There were no subtle methods of tor *302 ture or coercion. As to the time element, a large part of the six hours was dedicated to irrelevant questions which had nothing to do with the case. It is probable that the interrogation on the case itself lasted less than three hours. What remains then is an unremitting and relentless interrogation which, as has been established by the jurisprudence, does not render the confession involuntary. It was merely the case of an intellectual duel between two alert minds, Fournier finally deciding to confess. It does not transpire from the record that when Fournier made up his mind to confess he was weary and his will weakened. At most it can only be inferred that because of the relentlessness of the interrogation his will became shaken. But the established rule is precisely the opposite, that persistence in the interrogation does not result in involuntariness. Fournier did not testify at the trial and there was no direct evidence of any kind, either from Fournier’s own lips or from any other source, as to the effect of the interrogation on Fournier’s will. Naturally, Fournier had the right to remain silent. But the Supreme Court of the United States stated the following in the case of Stein v. New York, supra, on page 177, upon referring to the silence of the defendant as regards the voluntariness of the confession:
■ “In 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. The Constitution safeguards the right of a defendant to remain silent; it does not assure him that he may remain silent and still enjoy the advantages that might have resulted from testifying.”
That is, that it is legitimate to state that defendant’s silence was no proof that his will was “dead” as a result of the interrogation.
This Court holds that, “as matter of law”, the confession of the night of October 9-10 was involuntary. In the absence of specific proof on the concrete effect of the questions upon *303 the defendant’s intellect and will, the judgment of this Court implies the view that, from the nature of the questions asked, there arises inexorably the involuntariness of the confession. I do not agree with that view. But before going into some of the details of the interrogation, it is well to notice that one of the essential factors in determining whether or not a confession is voluntary consists in the personality of the defendant. Fournier was not a young, ignorant, timid or illiterate boy. He was, and is, a mature, educated and intelligent businessman, aggressive in the defense of his interests. With that personality, it is much more difficult to show that the interrogation shook down his will and overpowered his mind to the extent of rendering the confession involuntary. On the other hand, we must bear in mind that it is the duty of prosecuting attorneys to investigate and that a very important part of that investigation is the defendant’s interrogation. The defendant is the person best fitted to know the facts, to prove his innocence if he is innocent, and to explain the proof that the prosecuting attorney may have been able to obtain. The defendant has the right to refuse to testify, but that does not preclude the prosecuting attorney from questioning him and from trying to procure a statement in legal form. The common experience is that the interrogation may not always be carried out effectively in a cordial and friendly conversation. The prosecuting attorney very often has to be aggressive, without violence or intimidation, and a particularly effective method is that of confronting the defendant with the evidence already obtained, in order for him to explain it. All of that is part of the routine' of investigation, and that is why it has been held that the fact itself of a persistent interrogation does not imply that the confession procured has been involuntary. In Stein v. New York, supra, the Supreme Court of the United States, speaking through Mr. Justice Jackson stated the following at page 184:
“Psychological coercion is claimed as a secondary contention. It is urged that admitted facts show psychological pressure by *304 interrogation, such as to overpower these petitioners’ mental resistance and induce involuntary confessions. Of course, a process of interrogation can be so prolonged and unremitting, especially when accompanied by deprivation of refreshment, rest or relief, as to accomplish extortion of an involuntary confession.
“But the inquiry as to such allegations has a different point of departure. Interrogation is not inherently coercive, as is physical violence. Interrogation does have social value in solving crime, as physical force does not. By their own answers many suspects clear themselves, and the information they give frequently points out another who is guilty. Indeed, interrogation of those who know something about the facts is the chief means to solution of crime. The duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness. This Court never has held that the Fourteenth Amendment prohibits a state from such detention and interrogation of a suspect as under the circumstances appears reasonable and not coercive.
“Of course, such inquiries have limits. But the limits are not defined merely by calling an interrogation an ‘inquisition’, which adds to the problem only the emotions inherited from medieval experience.- The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.
“Both Stein and Cooper confessed only after about twelve hours of intermittent questioning. In each case this was stretched out over a 32-hour period, with .the suspect sleeping and eating in the interim .... It also is true that the questioning was by a number of officers at a time and by different officers at different times. But we cannot say that the use of successive officers to question these petitioners for the periods of time indicated is so oppressive as to overwhelm powers of resistance. While we have reversed convictions founded on confessions secured through interrogations by ‘relays’, we have also sustained convictions when, under different circumstances, the relay technique was employed. But we have never gone so far as to hold that the Fourteenth Amendment requires a one-to-one ratio between interrogators and prisoners, or that extensive *305 questioning of a prisoner automatically makes the evidence he gives in response constitutionally prohibited.
“The inward consciousness of having committed a murder and a robbery and of being confronted with evidence of guilt which they could neither deny nor explain seems enough to account for the confessions here. These men were not young, soft, ignorant or timid. They were not inexperienced in the ways of crime or its detection, nor were they dumb as to their rights. At the very end of his interrogation, the spectacle of Cooper naming his own terms for confession, deciding for himself with whom he would negotiate, getting what he wanted as a consideration for telling what he knew, reduces to absurdity his present claim that he was coerced into confession. Of course, these confessions were not voluntary in the sense that petitioners wanted to make them or that they were completely spontaneous, like a confession to a priest, a lawyer, or a psychiatrist. But in this sense no criminal confession is voluntary.
“Cooper’s and Stein’s confessions obviously came when they were convinced that their dance was over and the time had come to pay the fiddler .... Both confessions were ‘voluntary’, in the only sense in which confessions to the police by one under arrest and suspicion ever are. The state courts could properly find an absence of psychological coercion.”
We shall now consider some of the facts which characterized the interrogation. Among other things, the prosecuting attorney told the defendant that he had no right to consult or be aided by counsel at that stage of the proceeding. The prosecuting attorney was not guilty of a falsehood. As stated in the majority opinion, this Court has held that the defendant is not entitled to the aid of counsel during the course of an investigation. But even assuming that the prosecuting attorney had informed the defendant incorrectly as to the state of the law, that does not imply that the confession was involuntary or that it had been secured through psychological coercion. I do not believe that the statements of the prosecuting attorney were deceptive or tricky, but even assuming that they were, it is a well-settled rule that a confession does not become involuntary because of the fact that it has been obtained by fraud or deceit, no matter how cen *306 surable such practices may be. 3 Wigmore 281, § 841, third edition and cases cited therein, and see to the same effect Pueblo v. Alméstica, 18 P.R.R. 314 . This rule illustrates the contrast that should always be noticed between the fact that the method employed may be highly censurable, and the fact, altogether different, that the confession may be really involuntary. It is already well established that illegality in the methods of obtaining a confession does not necessarily imply that it is involuntary, inasmuch as such illegality does not mean, per se, that the confession lacks credit. 3 Wigmore 249, § 823, third edition. The fact that the defendant is informed that he is not entitled to be assisted by counsel during the interrogation does not mean that the mental resistance of the defendant has been impaired to the extent that he deliberately makes a false confession to stop the questioning. In any event, the defendant did not believe the statement of the prosecuting attorney and always insisted that he was entitled to consult an attorney.
The prosecuting attorney told the defendant on several occasions, and erroneously, that he was compelled to answer. The prosecuting attorney, more or less, said the following phrases: “You have to answer ... I ask the question and so many minutes pass without the defendant answering, etc.” That method of questioning, alone, is censurable but it does not transpire from the whole interrogation that such methods or such statements had any effect on the mind or the will of the defendant. Contrariwise, it affirmatively. appears from the interrogation that the defendant always rejected energetically such statements by the prosecuting attorney and that he was always well aware of his right to remain silent. Defendant’s confession was. not due to the fact that he was convinced that he was not really entitled to remain silent.
Although the situation is different, by analogy, in 3 Wig-more 263, •§ 832, there is discussed the problem of the statement máde to the defendant during questioning that he should or must tell the truth. The following is stated:
*307 “On principle, the advice by any person whatever that it would be better to tell the truth cannot possibly vitiate the confession, since by hypothesis the worst that it can evoke is the truth, and there is thus no risk of accepting a false confession. The confessor is not obliged to choose between silence and a false confession having powerful advantages; the advantages are attached to the utterance of the truth; and, however tempting we may suppose them to be, there is nothing in the nature of the temptation to make the statement untrustworthy; for if it has availed at all, it has availed to bring out the truth.
“Nevertheless, judges have been found with such extraordinary scrupulosity as to exclude confessions following such advice. The practical result under such rulings is a false and artificial interpretation, justly reproved by Mr. Justice Willes: ‘It seems to have been supposed at one time that saying “tell the truth” meant in effect “tell a lie.” ’ Sound opinion refuses to exclude a confession induced by such exhortation; and the weight of authority in this country, though not in England, repudiates such an exclusion.”
The opinion of this Court emphasizes the fact that the defendant was confronted with certain evidence of a repulsive, horrible, dreadful and shocking nature obtained by the prosecuting attorney and that it was an important factor in establishing psychological coercion. But according to the theory of the defense of the accused and according to the confession at San Antón, defendant not only knew of that evidence prior to the confession of the night of October 9, but he himself created that evidence by his own actions which he subsequently admitted in an undoubtedly voluntary manner. He could feel no repulsion or horror when he himself created the horror. His will could not have been overwhelmed by certain horrifying objects which he had already seen, and which had become horrible because of his own actions and of the previous exercise of his own will. I do not believe that the judgment should be reversed or that the confession should be branded as involuntary merely because the defendant was asked to explain the proof which he himself had produced and with which he had been in contact. If the defendant had not *308 been shocked before, there is no reason for saying that he was shocked afterwards, unless it is said that he suffered a disturbance upon learning that his crime and his actions had been discovered. But such disturbance does not constitute the overwhelming of the will required for excluding a confession. Precisely it has been stated and held that confronting the defendant with the evidence constitutes the most legitimate and effective explanation for defendant’s confession, without it being involuntary. In the Stein case it was held, on June 15, 1953, that the confession of Stein and Cooper had been made not because of the illegal detention or the prolonged interrogation, but because the defendants had been confronted with the evidence and that, therefore, the confession was voluntary because they were convinced that “their dance was over and the time had come to pay the fiddler”. On that particular the following is stated in 3 Wigmore 319, § 851:
“In the first place, an innocent person is always helped by an early opportunity to tell his whole story; hundreds of suspected persons every day are set free because their story thus told bears the marks of truth. Moreover, and more important, every guilty person is almost always ready and desirous to confess, as soon as he is detected and arrested. This psychological truth well known, to all criminal trial judges, seems to be ignored by some Supreme Courts. The nervous pressure of guilt is enormous; the load of the deed done is heavy; the fear of detection fills the consciousness; and when detection comes, the pressure is relieved; and the deep sense of relief makes confession a satisfaction. At that moment, he will tell all, and tell it truly. To forbid soliciting him, to seek to prevent this relief, is to fly in the face of human nature. It is natural, and should be lawful, to take his confession at that moment — the best one. And this expedient, if sanctioned, saves the State a delay and expense in convicting him after he has reacted from his first sensations, has yielded to his friends’ solicitations, and comes under the sway of the natural human instinct to struggle to save himself by the aid of all technicalities.” (Italics ours).
In the instant case defendant realized that he had been detected when he was confronted with the evidence. Hence, *309 his natural impulse to tell the truth voluntarily and not by coercion.
It is difficult for the prosecuting attorneys in many cases to obtain or detect the evidence. Once secured and detected, one of the most effective methods in the solution and prosecution of crimes consists in confronting with that evidence, a suspect who refuses to talk. If the suspected person is really innocent, judging by the natural human reactions, said evidence would not affect him, no matter how shocking, since he has not participated in the creation of that horror, nor would he be affected in learning that the prosecuting attorney possesses such evidence. At mosfr, he might experience a disagreeable sensation of disgust and repulsion because of the intrinsic nature of the evidence but it would not affect an innocent person to the extent of producing a false confession in order to prevent a further exposure of evidence with which he has had nothing to do. But if the truly guilty person is confronted with such evidence he may very well have the natural and voluntary impulse to confess, either because he realizes that he has been detected and that “his dance is over”, any further evasion being useless, or because of the remorse of a guilty conscience which has been stimulated by the direct display of the objects surrounding his crime. This is the realistic and psychological point of view as to this situation. But if a mechanical rule of exclusion of confessions is established because the defendant has been confronted with the evidence, which in the majority of murders is necessarily horrifying, then an effective means of solving crimes would be destroyed.
Generally speaking, it is a well-settled principle that the basis and foundation of the rule of exclusion of involuntary confessions is that a certain pressure or specific actions which induce to confession create a substantial risk that such confessions are false and untrustworthy. 3 Wigmore 246, 248, 822, 823. This does not mean that a defendant may challenge the voluntariness of a confession . by his attempt to *310 show that the content of the confession is false. It means that the concept itself of the involuntariness arises from those external circumstances giving rise to the probability that the confession is false. Now, I have meditated extensively on this problem and, although I may reach the conclusion that the prosecuting attorney was not altogether correct, I cannot reach the conclusion that the circumstances surrounding Fournier’s confession establish the risk or the probability that the confession was false.
Although I profoundly respect the criterion of the other members of the Court, and although I admire the objective quality of the majority opinion, I do not agree with the method of analysis whereby the conclusion is reached that the confession was involuntary. It is stated that the illegal detention per se does not prove that the confession was involuntary, and that the prolonged interrogation per se doesnot show that the confession was involuntary. But it tends to indicate that although each isolated factor does not show involuntariness, the combination of both factors produces it. If there is no psychological coercion under either of the two factors, the combination of the two does not necessarily produce psychological coercion. Naturally, the opinion may be interpreted to the effect that the illegal detention brought about some pressure of a considerable magnitude, although not enough per se to give rise to involuntariness, and that the circumstances attending the interrogation created also some pressure, although isolatedly insufficient, and that upon adding one pressure to the other, a new pressure, of greater and sufficient' magnitude, is created. But the illegal detention, as a matter of fact, did not constitute coercion or pressure of any kind or magnitude, since in the decisive subsequent moment, at the beginning of the interrogation, Fournier had in no way been affected by the illegal detention; he enjoyed good health, was relaxed, well-fed, mentally alert, in full control of his will and his mental faculties and in an attitude of energetic defense of his rights and his personality, any pos *311 sible adverse inference which might have arisen from the illegal detention being destroyed. As a matter of fact, from the fact itself of the duration of the interrogation, (only six hours) no undue pressure whatsoever affecting the will of Fournier arose. Nor did the fact that the prosecuting attorney told Fournier that at the time he had no right to be assisted by counsel lead to. any such pressure as to shake down his will, for the reasons which I have already mentioned. Fournier’s will remained firm notwithstanding the absence of counsel. As a matter of fact, there was no pressure impairing his will because the prosecuting attorney told Fournier that he had to make a statement, when Fournier .himself rejected the veracity of that information, and there was no undue pressure impairing the will of an innocent man when Fournier was confronted with some evidence with which he was already acquainted. There was no combination of undue pressure and even if there were, their combination was not inherently sufficient to overwhelm Four-nier’s will to the extent of inducing him to make a false confession.
We shall consider briefly some of the cases decided by the Supreme Court of the United States as to the volun-tariness of confessions when an allegation of psychological coercion is present. I say briefly, because in the opinion of this Court all'those cases are broadly discussed. The cases in which it was held that the confessions were involuntary involved circumstances entirely different from those prevailing herein. For example, in Watts v. Indiana, supra, the defendant was questioned persistently by relays of officers (here only by one) during several continuous periods of times for five days, and on the last day he was questioned from six o’clock in the afternoon until three in the morning. The first two days he was in solitary confinement, in a cell called “the hole”. He was not given opportunity either to sleep or to have adequate meals. In Turner v. Pennsylvania, *312 338 U. S. 62, 63 ,. 64, the defendant was questioned during six days in different periods of time, by relays of officers, and from time to time other officers joined in the interrogation; whenever one of the police officers interested in the investigation had any free time, he would have the petitioner brought for questioning. In Harris v. South Carolina, 338 U. S. 68, 69 , 70 the defendant was interrogated by relays of police officers in a small, hot room, relieving each other from time to time. He was questioned throughout the evening of Monday; on Tuesday the questioning continued from 1:30 in the afternoon until 1:00 in the morning, with only an hour of respite; on Wednesday several officers questioned him together for several hours. He was threatened with the arrest of his mother. The defendant was illiterate. In other cases, the defendant was either illiterate, or a young, ignorant and timid man, subjected to interrogations by relays of officers and, for example, for 36 uninterrupted hours with a light over his head. Ashcraft v. Tennessee, 322 U. S. 143 . Such cases are totally inapposite to the case at bar. On the other hand, in other cases, the Supreme Court has held that the confessions were voluntary, even under circumstances more strenuous for the defendant than in the case at bar. In Lisenba v. California, 314 U. S. 219, 238 , the petitioner, a mature, intelligent man with business experience, had been illegally detained for a period longer than in the case at bar, as indicated in the majority opinion. It was held that the confession was voluntary. Gallegos v. Nebraska, supra, was the case of a Mexican working as a farm hand who did not speak English. He was jailed in a small room for twenty-one hours and questioned for four days in Texas for an hour each day. In Nebraska he was questioned by three officers through an interpreter. Detention had.been illegal. It was held that, notwithstanding this, the confession had been voluntary. In Stein v. New York, supra, detention was illegal and the *313 interrogation was more prolonged than in the case at bar. I believe it is evident that the cases of Lisenba, Gallegos and Stein are more applicable in their circumstances to the case at bar than those of Watts, Turner, Harris and Ash-craft. If we were to decide this case on the authorities laid down by the Supreme Court of the United States, we would have to conclude that defendant’s confession was voluntary.
I entirely agree with the theory expressed in the opinion of this Court that the defendant’s second confession at barrio San Antón in the morning of October 10, 1950, was voluntary. Considering that opinion alone, the uncontro-verted evidence showed clearly that at San Antón the defendant was completely serene and tranquil, he spoke normally, his attitude was correct, he spoke and acted spontaneously, and he graphically explained, through spontaneous actions, the way and manner in which he had committed the crime, describing the scene and the crime in detail; defendant’s actions were completely free; he made no objections about posing for photographs of the different stages of the crime as he had committed it. I have considered that confession, first in an isolated fashion, and I am aware of the rule that should there be two successive confessions, if the first is involuntary the second must also be presumed to be so. According to my theory, there is no need to apply such rule to this case since the first confession was not involuntary. But even assuming that it was, any possible presumption of involuntariness of the second was rebutted, since it is clear that upon confessing in San Antón the defendant was serene and tranquil, and was in no way affected by his alleged ordeal of the former night. What I would wish to emphasize is that the very attitude and conduct of the defendant in San Antón, a few hours after the first interrogation, show that on the previous night his will had in no manner been affected by any psychological coercion. Contrariwise, he *314 admitted at San Antón before reporters, freely, spontaneously and voluntarily that he had not been under the pressure of the prosecuting attorney on the previous night, that his first confession had been voluntary. That admission is of extraordinary importance as to the facts of the occurrences of the previous night, bearing specially in mind that all that he stated in San Antón was voluntary and trustworthy, which gives a greater probatory value to that admission of the defendant that he had not been coerced on the previous night. Even irrespective of that admission, from a realistic point of view I do not believe that a judgment and conviction should be set aside on the ground that the confession of the night of October 9 was involuntary, when a few hours later, at San Antón, the defendant coolly, serenely, with an absolute freedom of mind and will, explained his crime with all kinds of details, before a multitude of reporters. That fact shows that there was no coercion the previous night, and it particularly shows that he was in no way affected when he was confronted with horrifying evidence, when he himself reproduced the horror a few hours later with complete coolness before the photographers. The voluntary confession of San Antón destroys the involuntariness of the first confession, since defendant took it upon himself to demonstrate, not only that the circumstances surrounding the first confession had not created any risk of falsehood, thus dispelling the basis for the involuntariness doctrine, but also that such confession, essentially, had not been false.
The voluntariness of the confession of the night of October 9 was also shown by the statements of defendant’s counsel, Lie. Rubén Gaztambide Arrillaga, on the afternoon of October 10, several hours after the first confession, statements made in open court upon the withdrawal by defendant, through counsel, of a petition for habeas corpus which he had filed. Mr. Gaztambide stated, as is set forth in the opinion, *315 that he had not been permitted to see the defendant for 80 hours, but that finally the defendant had told him that he had not been forced by the prosecuting attorney to testify or confess ; and that his confession had been wholly voluntary and that the counsel affirmed that the confession had been voluntary. When expressing himself in this way, Mr. Gaztambide Arrillaga was speaking in representation of his client, it was the defendant who spoke. Gaztambide’s statements were admissible in evidence in the instant case. There is no problem whatsoever of hearsay evidence, since the hearsay evidence rule is not applicable to, nor does it exclude, the admissions of a defendant made through an agent, as Gaztambide was of the defendant, since in a litigation, counsel for a defendant must be considered as defendant’s agent and his admissions are the admissions of the defendant, so far only as he does so in the course of his employment, that is, within his authority to act as such agent. 4 Wigmore 43, § 1063, third ed. But it is stated in the opinion of this Court that the statements of Mr. Gaztambide Arrillaga were not admissible because they were not pertinent. I disagree with this opinion on the following grounds:
(1) Strictly speaking, ’Gaztambide’s statements were pertinent to what was being litigated on the afternoon of October 10. It was a petition for habeas corpus and counsel’s purpose, authorized by-the defendant, was to withdraw the petition. One of the grounds for withdrawal was the fact that an information was to be filed and a bond fixed for defendant. But the information was to be filed because the confession had been made, and, therefore, the confession was pertinent to the dismissal, that' is, the confession was pertinent to the statement of the counsel made in representation of the defendant.
(2) -The true theory upon which the statements of a counsel in representation of his client become admissible is that the counsel proceeded upon his authority. Gaztambide *316 spoke under color of authority because what he stated was an incident of his power to manage the litigation, (4 'Wigmore 43, 44), that is, it was a proper incident to the voluntary dismissal of the petition for habeas corpus.
(3) Gaztambide acted within the course of his authority because the defendant had authorized him to say what he did. Gaztambide stated that 80 hours had elapsed without his having been able to speak with the defendant but that the latter finally spoke with him and told him that the confession had been voluntary. It transpires that Gaztambide spoke with the defendant at some time on October 10, shortly after the first confession, and that the defendant had implicitly authorized him to state that the confession was voluntary.
(4) It being a question of pertinent matter, it is convenient to notice that, as stated in the opinion of this Court, the defendant in the case at bar objected to the admission of the document containing Gaztambide’s statements but refused to set forth the grounds for his objection. An objection may not be considered on appeal unless the grounds therefor have been set forth in the court of first instance. This Court should not motu proprio excuse defendant’s attitude in refusing to inform the Court of the grounds for his objection.
(5) Parting from the point of view of this dissenting opinion that the confessions were voluntary per se, if there was error in admitting Gaztambide’s statements, such error could not have been prejudicial, because said statements merely corroborate the. fact already established that the confessions were voluntary.
(6) Let us now consider the reality of the matter. A counsel who undoubtedly represents a defendant stands up in court and states that according to his own client’s statements to him, to the client’s attorney, the confessions had *317 been voluntary. Why should such statements have no pro-batory value?
(7) The defendant never testified in court that Gaztam-bide had spoken without his authority. The presumption of authority was not overcome.
Assuming the admissibility and probatory value of the statements of Mr. Gaztambide Arrillaga, I do not believe that we should reverse the judgment on the basis that the first confession was involuntary when defendant himself tells his counsel that the confession was voluntary, and the attorney ratifies said voluntariness in open court. I repeat that the reversal under such circumstances is contrary to the reality of this case. I have indicated that there is no problem regarding the hearsay-evidence rule with respect to the statements of Mr. Gaztambide Arrillaga. It could be contended that such statements constitute double hearsay-evidence, that is, a double violation of the rule. However, I understand that it is the case of a “double exception” to the hearsay-evidence rule. That when Gaztambide testified as to what defendant •had told him he was testifying as to admissions of the defendant which do not fall within the hearsay-evidence rule, and upon introducing evidence in this case as to Gaztambide’s statements in the former proceeding, it constitutes an exception to the rule, inasmuch as Gaztambide spoke as an agent acting within the course of his authority as such.
Another factor which buttresses the theory that the confession was voluntary lies in the fact that, in the case at bar, upon setting forth his theory of defense, the defendant took as a basis and therefore admitted in this same case, the trustworthiness of the most important facts which were the object of confession. The defendant adopted the confession and waived the plea of involuntariness. If the doctrine of involuntariness is predicated, as it is, on the view that the circumstances surrounding the confession gave rise to a substantial risk that the confession was not true, if later defendant himself not only admits that the facts which were the ob *318 ject of the confession were true, but that he takes them as ground for his own theory of defense, it shows very forcefully that upon making the confession the defendant was not unduly pressed to admit facts that defendant • himself afterwards states in open court as true, and shows impressively that there was no risk whatsoever that the confession was false. By ratifying the truth of the facts, he also ratified the validity of the confession containing those facts. Even if the theory of involuntary confessions were predicated on the privilege against self incrimination, he waived the effectiveness of that privilege, as well as any defects that might have arisen from the alleged violation of that privilege, upon admitting spontaneously, in open court, the truth of the facts which he had confessed.
The opinion of this Court tends to accept that the theory of the defense was equivalent to an adoption of the confession, but it indicates that the theory of the defense only referred to some confessed facts, but not to other essential and incriminatory facts which had been the object of confession. I do not believe that the concept of adoption may be thus fragmented. If the theory of the defense implied an acknowledgment and admission that most of the confession had been voluntary, then the rest of the confession was likewise voluntary. The confession formed a single body and a single unity, and it could not be fractioned to the extent of saying that part of the confession was voluntary while the other part was not. The acknowledgment of voluntariness must be extended to the whole confession. It cannot be said that the circumstances created a risk of falsehood as to part of the confession and that there was no such risk as to the other part. Defendant must not be permitted to assume the position of alleging successfully that a portion of the facts object of the confession is true, so much as benefits him, while the other part of the facts is untrue, because the confession was not voluntary, that is, voluntary insofar as it may be of advantage to the defendant and involuntary insofar as *319 it may be disadvantageous. Confirmation of parts may not be fragmented.
With respect to a similar problem concerning the confirmation of a confession by discovery of evidence of the facts confessed, Wigmore sets forth his personal view in 3 Wig-more 338, § 857,.as follows:
“It will be observed that, in Mr. Leach’s phrase, ‘so much of the confession as relates strictly to the fact discovered by it’ is to lie received; in other words, the confirmation admits the part confirmed, and that only. Now this falls something short of the logic of the case; for a confirmation on material points produces ample persuasion of the trustworthiness of the whole. It can hardly be supposed that at certain parts the possible fiction stopped and the truth began, and that by a marvellous coincidence the truthful parts are exactly those which a subsequent search (more or less controlled by chance) happened to confirm. Such a differentiation is purely artificial, and corresponds to no actual mental processes, either of the confessor or of the hearer. If we are to cease distrusting any part, we should cease distrusting all.”
Analyzing that question inore carefully as indicated in the majority opinion, the defendant admitted in his theory of defense, the form and manner in which he had killed Iris Nereida, but he said nothing as to his conduct following the death which had been the object of the confession. It is evident that he adopted a very essential part of the confession, that he had killed Iris Nereida. Up to that point, as the Court states, there might have been an adoption. Now then, if the confession was voluntary (by self definition of the concept of adoption), as to that essential point, it also had to be, necessarily, voluntary as to the rest of the confession. We cannot draw an artificial line between the part of the confession referring to Iris Nereida’s death and the part referring to the subsequent conduct of the defendant. There we have thé example that the defendant implicitly admitted the part of the confession which suited his theory of mental or emotional incapacity, and did not disclose- the part which *320 did not suit him for his theory as to his subsequent conduct. Said tactics should not be justified by this Court.
According to the theory which I have adopted that both confessions’were clearly voluntary, the Judge did not have to charge the jury as to the effect of an involuntary confession on a subsequent confession, since there is no such involuntary confession herein. But even if the jury should have been charged as to that particular, the error, if any, was neither objected to, demurred, or raised on appeal, and it would not be prejudicial, first, if this Court reached the conclusion that both confessions were clearly voluntary as a matter of fact and of law and, second, because the rest of the evidence, aside from the confessions, was sufficient to support the conviction.
Even assuming that an error was committed in failing to instruct the jury as to the possible effect of the first confession on the second, said error was not prejudicial. I am convinced that there is no marked probability to the effect that the omission by the trial judge could have had any substantial effect on the verdict, first, because in my opinion, both the first confession and the confession at San Antón, were clearly voluntary. The jury had before it all the circumstances connected with the form and manner in which those two confessions were presented. There was no contradiction whatsoever in the evidence as to the circumstances surrounding the making of those two confessions. Even if the judge had charged the jury adequately as to the possible effect of the first confession on the second, I believe that the jury would still have reached the conclusion that there was no effect whatsoever, since the uncontroverted evidence clearly showed that both confessions were voluntary. It could not be contended that it was precisely for the jury to determine said voluntariness or said effect, and that such is not the function of this Court on appeal. But, as I shall try to prove hereinafter, the prevailing rule is to the effect that in order to determine whether or not an error was so prejudicial *321 as to warrant the reversal of the judgment, this Court should ask itself whether the circumstances of the case show that it was probable that the error had a prejudicial effect, that is, whether the circumstances of the case show that it was probable that the jury would have reached a different verdict if the error had not been committed. If all the rest of the evidence introduced, irrespective of the confessions, was clearly more than sufficient to show the guilt of the defendant and to justify a verdict of conviction and if this Court should reach the conclusion that the uncontroverted evidence shows that both confessions were voluntary, then all the probabilities would be to the effect that the fact of giving an instruction as to the relation between two confessions would have always produced the same result, that is, the same verdict of guilty and therefore, the reversal of the judgment would not lie.
It has been established that a court on appeal should not assume that all the errors are prejudicial, and the court must consider the whole record in order to determine whether the result has been substantially correct. Nash v. United States, 54 F.2d 1006 . It has been also- held by the Supreme Court of California in the case of People v. González, 24 Cal. 2d 870 , 151 P.2d 251 , that it is incumbent on the Supreme Court to determine on appeal whether the omission to adequately instruct the jury on the subject of voluntariness of a confession, and that said question is for the jury to determine, it is incumbent on the Supreme Court, I repeat, to determine whether such omission resulted in such a substantial miscarriage of justice that the judgment should be reversed. In said Gonzalez case it was specifically held that where the evidence pointed to the guilt of the defendant beyond reasonable doubt, failure of the trial court to instruct the jury as to the voluntary nature of the confession did not result in a miscarriage of justice so as to warrant reversal of conviction, since, in that case, as stated by the Supreme Court of California, the jury would have come to the same conclusion had *322 the'confession not been received or had the jury been expressly instructed that the question of the voluntary or involuntary nature of the confession was for it to determine.
In the case of People v. Britton, 6 Cal. 2d 10 , 56 P.2d 491 , it was held that the refusal of the trial judge to give an instruction requested by defendant relating to the value of a confession as evidence was not prejudicial and did not warrant reversal where there was sufficient evidence to prove defendant’s guilt. It was held that the duty devolves upon the appellant to establish to a reasonable certainty that, without such error having been committed, the result of the trial would have been different, and the California Court states that after considering the complete evidence, it was so improbable as to be nearly inconceivable that any verdict other than one expressing the guilt of defendant would have been returned by the jury.
In the case of Gore v. State, 134 S. E. 2d 36 , it is held that omission to charge the jury on the law of confessions, is not a prejudicial error if there is other sufficient evidence to warrant conviction.
. In the case of Rohlfs v. State, 231 N. W. 266 , it was held that the failure to charge the jury that an admission must be made with some degree of deliberation or voluntariness was not prejudicial, where evidence clearly showed that such admission was clearly deliberate.
In a case which originated in Puerto Rico, the Circuit Court of Appeals, First Circuit, García v. United States, 10 F.2d 355 , it was held that where evidence plainly warranted a verdict of guilty, only a plain and serious error in charging the jury would warrant reversal.
Although in the case of Kotteakos v. United States, 328 U. S. 750 , the judgment was reversed because it was held that an error in the instructions had been prejudicial according to the special circumstances of the case, however, certain general rules which are useful in the decision of the case at *323 bar are established. For example, the “harmless error” rule is defined to the effect that said doctrine constitutes a judicial check upon arbitrary action and essential unfairness in trials, but at the same time it must not be applied in such a way as to give men fairly convicted the multiplicity of loopholes, (p. 760). It is also stated that there is a difference between a case where the evidence is balanced, where the “harmless error” rule may be applied more broadly, and a case where the clear evidence is one-sided against defendant, in which latter case the errors are not generally considered as prejudicial (p. 763). It is stated that if the error relates to the necessary minimum evidence legally sufficient to sustain the conviction, a reversal is in order because if such evidence or error is eliminated, the rest of the proof unaffected by the error would not be sufficient, and the prejudice would necessarily be substantial. It. is held that, if with fair assurance one can say that the error itself had an effect or substantial influence on the verdict, the judgment must be reversed. In the case at bar, the error, if any, as to the relation between both confessions did not refer to the other evidence which was clearly sufficient to support a verdict.of guilty. It is my opinion that there is no marked probability to the effect that said error had any substantial effect on the verdict, inasmuch as in view of the clear voluntariness of both confessions and from the clear evidence against the defendant, the verdict returned would have always been the same, regardless of the instruction which we are now discussing.
In the subsequent case of Fiswick v. United States, 329 U. S. 211 , it is held that where an error in the instruction had any substantial influence on the result or where there are serious doubts as to that particular, the judgment must be reversed even if based on sufficient evidence. However, in that same opinion it is stated at pp. 218 and 220 that the proof of guilt was not strong and that the case against the defendant was weak whereby the error had a substantial influence in the result. In the instant case, the evidence *324 against the defendant was powerful and it was a strong case, and in view thereof and of the clearly voluntary nature of the confession I must conclude that the error had no substantial influence on the verdict.
I do not wish to close this dissenting opinion without citing the ruling of the Supreme Court of the United States with regard to confessions, speaking through Mr. Justice Jackson, in the case of Stein v. New York, supra, at pp. 196 and 197:
. “We are not willing to discredit constitutional doctrines for protection of the innocent by making of them mere technical loopholes for the escape of the guilty.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8536825. Public record. Not legal advice.