¶1In Part I, the majority discuss the question whether the standard of proof for determining voluntariness of a confession should be by preponderating evidence or by proof beyond a reasonable doubt, ultimately endorsing the more difficult test as a judicially declared rule of criminal procedure. In Part II, however, the majority conclude defendant’s confessions were involuntary as a matter of law, rendering Part I dictum.
¶2Until we face a case requiring resolution of this issue I shall simply note my tentative approval of the analysis leading the high court in Lego v. Twomey to retain the preponderating evidence test. “[W]e are
¶3*615unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution . . . requires admissibility to be proven beyond reasonable doubt. Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. [Citation.] The same is true of coerced confessions offered in either federal or state trials. [Citations.] But, from our experience over this period of time no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence. Petitioner offers nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based on some higher standard. Without good cause, we are unwilling to expand currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries and by revising the standards applicable in collateral proceedings. Sound reason for moving further in this direction has not been offered here nor do we discern any at the present time. This is particularly true since the exclusionary rules are very much aimed at deterring lawless conduct by police and prosecution and it is veiy doubtful that escalating the prosecution’s burden of proof in Fourth and Fifth Amendment suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence.” (Lego v. Twomey (1972) 404 U.S. 477, 488-489 [30 L.Ed.2d 618, 627, 92 S.Ct. 619].) In a footnote the high court added: “It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule.” (404 U.S. at p. 488, fn. 16 [30 L.Ed.2d at p. 627].)
¶4Richardson, J., concurred.
¶5Respondent’s petition for a rehearing was denied August 24, 1978. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.