The opinion
FORT, J.,
dissenting.
Testimonial reliability, as the majority states, is the basic concept underlying the admissibility of evidence.
Wigmore tells us:
“The principle upon which a confession is 'treated as sometimes inadmissible is that under certain conditions it becomes untrustworthy as testimony. * * *” 3 Wigmore, Evidence (3d ed 1940) '246, § 822. (Emphasis in original.)
With respect to criminal cases, he points out:
“* * * In criminal charges, the higher degree of caution always exercised by the law in favor of *486 the accused prompts to a greater strictness in excluding suspicious testimony, and the degree of likelihood of its incorrectness need be much less than in other instances * * 3 Wigmore, Evidence, supra, at 246.
The leading case in the United States concerning the admissibility of confessions or admissions is Bram v. United States, 168 US 532 , 18 S Ct 183 , 42 L Ed 568 (1897). There the Supreme Court, in a lengthy opinion, exhaustively reviewed the authorities, both of the common law, at the time of the adoption of the Constitution and the Fifth Amendment, and of the English and American authorities decided during the 19th century.
The court, speaking through Mr. Justice (later Chief Justice) White, said:
“* * * The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent. * * *” 168 US at 549 .
Later, at 565, the court said:
“* * * As said in the passage from Russell on Crimes already quoted, ‘the law cannot measure the force of the influence used or decide upon its effect upon the mind of the prisoner, and, therefore, excludes the declaration if any degree of influence has been exerted.’ * * *”
The rules,thus enunciated have found continuing support in the; federal cases. Indeed as recently as *487 Beecher v. Alabama, 389 US 35 , 88 S Ct 189 , 19 L Ed 2d 35 (1967), the Supreme Court, in a unanimous opinion, restated again the rule as above set forth in the excerpt from Russell on Crimes just quoted.
The concerns which underlie the privilege against self-incrimination are most recently described in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L Ed 2d 977 (1964):
“We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. As Dean Wigmore so wisely said: '‘[A]ny system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources. * * *’ 8 Wigmore, Evidence (3d ed. 1940), 309. (Emphasis in original.)” 378 US at 488-89 .
The prophylactic objectives expressed there have been expressly recognized and approved by the Oregon Supreme Court in State v. Williams, 248 Or 85 , 432 P2d 679 (1967). It there stated at 93-94:
“# * # The Fifth Amendment privilege is recognized in these cases because its application was deemed necessary as a prophylaxis against coercive police practices. The same prophylaxis is necessary whether the interrogation is used to obtain a confession or to establish a suspect’s guilt through his disclosure of evidence pointing to his guilt. * * *”
Thus the statements of a defendant may well be *488 voluntary in the sense that he has determined it is the wisest thing for him to do under the circumstances. But where such decision is the product of circumstances so inherently coercive as to render it highly probable that the decision to answer is to any substantial degree the product of fear, it is not the voluntary relinquishment of the privilege against self-incrimination which the Fifth Amendment requires.
In addition to the facts described both in the majority opinion and in the dissent of Chief Judge Schwab, the following facts are also, in my view, of importance here.
At first while standing up the officers did not clearly understand the defendant’s name and had him spell it. After that, during the questioning the officers testified they had no trouble hearing the defendant, only, however, as Officer Breazeal testified:
“* * * after we leaned down and — we got on our knees down next to Mm and had no trouble at all understanding him.” (Emphasis supplied.)
The defendant at all times was lying down full length on the damp ground. He was shivering.
The defendant' had been drinking. At trial he denied, however, that he was intoxicated. Concerning his condition in that regard, the officer stated that he did not shine his light directly in the defendant’s eyes. He could not tell if the pupils were dilated, but observed the eyes .were bloodshot. The defendant smelled of alcohol'but in his Opinion was not intoxicated. Officer Roebuck stated he 'coiild hot make- “an honest evaluation” under the circumstances as to whether-‘ defendant was .-under, the. influence of liquór.
*489 Concerning pain, Officer Breazeal testified:
“Q. Did Mr. Pressel show any evidence of pain?
“A. Well, there probably was some pain. He— his face, he grimaced a little bit, but — but, like I said, there was no screaming or moaning or anything on this order from him. None at all.”
The defendant himself, however, testified that he experienced no pain during the questioning.
In the opinion of both officers the defendant at the time was “in some degree of shock.” He was, however, able to and did answer their questions. The defendant, in answer to a question, spelled his name and stated that he had escaped from the Washington State Penitentiary nine days earlier and had helped his companion to escape.
I do not imply any criticism of the police conduct in this case. The situation fully justified their actions. I agree that the role of the police to protect their own safety and that of others was ably and courageously carried out here. The decision as to what to offer in evidence was not that of the police: it was that of the district attorney.
Unfortunately, the only evidence offered by the state to establish the simple fact that the defendant was an escapee from the Washington State Penitentiary at Walla Walla was the defendant’s single admission so elicited. The record is devoid of any other evidence of this important, yet easily established, fact. Since the motivation for the shooting by the defendant at the officer is a vital element of the crime of assault with intent to kill, it follows, in my view, that the error was prejudicial.
*490 In Bram v. United States, supra, the court concluded :
“* * * In the case before us we find that an influence was exerted, and as any doubt as to whether the confession was voluntary must be- determined in favor of the accused, we cannot escape the conclusion that error was committed by the trial court in admitting the confession under the circumstances disclosed by the record.” 168 US at 565 .
I would reverse.