¶1dissenting. Our state constitution provides that “[n]o person shall be compelled to give evidence against himself . . . .” Conn. Const., art. I, § 8. This constitutional guarantee is a fundamental tenet of our democracy. Its roots go back to the ancient Hebrew law “ ‘that no man is to be declared guilty on his own admission . . . .’ ’
¶2I
¶3In this case, the defendant, Anthony James, has consistently claimed that his confession was coerced. He claims that it was a document prepared by the police based largely on another person’s confession. The defendant testified that his signature on the confession was obtained by the police after he was held and continuously questioned for almost fourteen hours, during which he was threatened that his fiancee, Carolyn Fraser, would be arrested and his children placed in foster care. The state disputes much of the defendant’s allegations, and claims that the questioning took place over “several hours,” as characterized by the majority of this court. The state, however, acknowledges that the defendant was awakened by the police at 1:30 a.m. on January 14, 1993, removed from his home and brought to the police station, whereupon he was questioned until 3:30 p.m. that day. During this time, the police admit that the defendant had almost nothing to eat or drink, and that he did not sleep. They also admit that he was presented with a written copy of Michael Sebastian’s confession at approximately 5:30 a.m., who was undergoing questioning regarding the same crime in another room at the police station, and that the defendant continued to deny any participation in the crime until at least 11 a.m. It stretches the imagination that, under the facts of this case, the confession was voluntary. A finding, under any standard, that there was no police coercion cannot stand. We have no tape recordings, videotapes or any other independent record of what occurred during those fourteen hours at the *441police station. The testimony of the defendant, Fraser, and another witness, Selma Haddad,
¶4*443In my view, as a matter of public policy the police should, from the time a citizen is first taken into the police station for investigative purposes, whether voluntarily or involuntarily, electronically record all that transpires with respect to the person as long as he or she is there.
¶5Although there is a claim of physical abuse in this case, our concern, as Chief Justice Warren wrote in Miranda, has moved away from the police’s resort “to physical brutality — beatings, hanging, whipping . . . .” Miranda v. Arizona, supra,384 U.S. 446. Rather, “the modem practice of in-custody interrogation is psychologically rather than physically oriented.” Id., 448. Relying on “various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics”; id.; Chief Justice Warren in Miranda then described the various psychological procedures used by the police to extract a confession, including isolation, the “principal psychological factor contributing to a successful interrogation . . . .” (Internal quotation marks omitted.) Id., 449. In addition to isolation, police manuals referred to the importance of unfamiliar and *444police dominated surroundings; id., 449-50; a police display of confidence in the suspect’s guilt; id., 450; “an oppressive atmosphere of dogged persistence” where the subject is “interrogate [d] for a spell of several hours pausing only for the subject’s necessities in acknowledgement of the need to avoid a charge of duress that can be technically substantiated”; (internal quotation marks omitted) id., 451; the offering of legal excuses for the suspect’s actions in order to obtain an initial admission of guilt, the “Mutt and Jeff’ act; id., 451-52; the inducement of confessions by trickery; id., 453; and the giving of false legal advice. Id., 455. A bare recitation of the events in the present case beginning with the knock on the defendant’s door at 1:30 a.m. on January 14, through his confession given fourteen hours later, could have come straight out of these law enforcement manuals.
¶6“It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles — that the individual may not be compelled to incriminate himself. Unless adequate protective devises are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id., 457-58.
¶7I have elsewhere stated that: “ ‘Although we normally give great deference to the factual findings of the trial court, the ultimate issue of whether the statement is voluntary and admissible is a legal determination. Arizona v. Fulminante, 499 U.S. 279, 287, 111 S. Ct. 1246, 113 L. Ed. 2d 302, reh. denied, 500 U.S. 938, 111 S. Ct. 2067, 114 L. Ed. 2d 472 (1991).’ State v. Roman, 224 *445Conn. 63, 76-77, 616 A.2d 266 (1992) (Berdon, dissenting), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993). ‘On appeal, in order to determine whether the defendant’s constitutional rights have been infringed, we review the record in its entirety and are not limited to the evidence before the trial court at the time the ruling admitting the statements was made.’ State v. Toste, 198 Conn. 573, 576, 504 A.2d 1036 (1986). Indeed, our examination of the record must be ‘independent and scrupulous’ when determining whether a confession is admissible. State v. Smith, [200 Conn. 465, 478, 512 A.2d 189 (1986)]. ‘Accordingly, our standard of review is not whether the fact-finding of the trial court is “clearly erroneous,” but whether, upon our review of the record, the state has proven that the incriminating statements were voluntarily made.’ State v. Roman, supra, 77.” State v. Medina, 228 Conn. 281, 324, 636 A.2d 351 (1994) (Berdon, J., dissenting).
¶8On the basis of the facts of this case — whether the standard for the burden of persuasion on the part of the state to prove the voluntariness of a confession is by a preponderance of the evidence or beyond a reasonable doubt — I would find that the confession was coerced, and order that it be suppressed at a new trial.
¶9II
¶10I would also hold that, under our state constitution, the state must prove that the confession of an accused is voluntary beyond a reasonable doubt. I start my state constitutional analysis with the underlying policy reasons for determining which of the burdens of persuasion are applicable. Burdens of proof are allocated upon the willingness of society to accept the risk of an erroneous determination. For example, “[w]e permit proof by a preponderance of the evidence in civil litigation because we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor *446than for there to be an erroneous verdict in the plaintiffs favor.” (Internal quotation marks omitted.) Lego v. Twomey, 404 U.S. 477, 493, 92 S. Ct. 619, 30 L. Ed. 2d 618 (Brennan, J., dissenting).
¶11On the other hand, in a criminal matter we require proof beyond a reasonable doubt. The Supreme Court of the United States pointed out in In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), that the reasonable doubt standard “is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence . ...” As Justice Harlan stated in his concurring opinion, “the requirement of proof beyond a reasonable doubt in a criminal case [is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Id., 372.
¶12I am unwilling to accept the risk of an erroneous determination that the confession was voluntary when in fact it may have been coerced. “If we permit the prosecution to prove by a preponderance of the evidence that a confession was voluntary, then, to paraphrase Mr. Justice Harlan, we must be prepared to justify the view that it is no more serious in general to admit involuntary confessions than it is to exclude voluntary confessions. . . . Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified.” Lego v. Twomey, supra,404 U.S. 494 (Brennan, J., dissenting).
¶13The majority today places a confession on the same level as any other evidential ruling during the course of a trial. This fails to recognize that confessions are “a special type of evidence.” State v. Trammell, 240 Neb. 724, 736-37, 484 N.W.2d 263 (1992); State v. Phinney, 117 N.H. 145, 147, 370 A.2d 1153 (1977). As the *447Phinneycourt recognized: “Confessions are usually obtained in the psychological atmosphere of police custody and in the greatest secrecy in which the cards can be stacked against the accused. He has no means of combating the evidence produced by the police save by his own testimony. The stakes are too high and the risk of error too great to permit a determination of admissibility to be decided by a balance of probabilities.” State v. Phinney, supra, 147.
¶14The need for the heightened standard of proof beyond a reasonable doubt that a confession was voluntary is underscored by a fundamental principle of our criminal justice system — that no one shall be found guilty of a crime except upon proof of every element of the crime beyond a reasonable doubt. In re Winship, supra, 397 U.S. 364. Anyone who has had any experience with the criminal justice system and the trial of a criminal case — either as a judge or trial counsel — knows that the confession once admitted is tantamount to conviction. State v. Phinney, supra,117 N.H. 147 (acceptance of confession “basically amounts to conviction”). Because our system of justice is predicated on the reasonable doubt standard, it then logically follows that the voluntariness of a confession must be established by proof beyond a reasonable doubt.
¶15There is also another practical aspect of this issue that cannot be overlooked. In most instances the decision as to whether the confession is to be admitted into evidence is usually based on the credibility of the police officer and the defendant.
¶16With these policy reasons in mind, I continue with my state constitutional analysis. “It is well established that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Moreover, we have held that [i]n the area of fundamental civil liberties — which includes all protections of the declaration of rights contained in article first of the Connecticut constitution — we sit as a court of last resort. ... In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, *449but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law. . . . Recognizing that our state constitution is an instrument of progress ... is intended to stand for a great length of time and should not be interpreted too narrowly or too literally ... we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution.” (Citation omitted; internal quotation marks omitted.) State v. Miller, 227 Conn. 363, 379-80, 630 A.2d 1315 (1993); State v. DeFusco, 224 Conn. 627, 631-32, 620 A.2d 746 (1993); State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990); State v. Dukes, 209 Conn. 98, 112, 547 A.2d 10 (1988); see also State v. Joyce, 229 Conn. 10, 15-16, 639 A.2d 1007 (1994). Indeed, in Lego v. Twomey, supra,404 U.S. 489, the majority of the United States Supreme Court in that four to three decision
¶17This court, today, relies on State v. Staples, 175 Conn. 398, 399 A.2d 1269 (1978), for the precedent that merely apreponderance of the evidence is required. It is correct that in Staples, the court held under the state constitution “that a trial court should follow the preponderance of the evidence standard and not the reasonable doubt standard in determining whether or not the state has sustained its burden of proving voluntariness when a confession of a criminal defendant is offered into evidence.” Id., 406-407. Staples, however, is not binding precedent for two reasons.
¶18*450First, this court did not conduct an independent analysis of the Connecticut constitution in Staples. Indeed, in that case, the court relied on State v. Bartee, 167 Conn. 309, 313, 355 A.2d 250 (1974), which in turn relied solely on federal precedent to decide the federal question before the court. The question of the proper burden of proof in determining the voluntariness of a confession under the Connecticut constitution has since eluded us. See, e.g., State v. Medina, supra,228 Conn. 300; State v. Stanley, 223 Conn. 674, 689-90, 613 A.2d 788 (1992).
¶19Second, Stapleswas decided in an era when no independent meaning was given to those provisions of the state constitution that paralleled those of the federal constitution. For example, for years this court held that the due process provisions of the federal and state constitutions have the same meaning and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1979); Roundhouse Construction v. Telesco Masons Supplies, 168 Conn. 371, 374, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), aff'd on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968); Cyphers v. Allyn, 142 Conn. 699, 703, 118 A.2d 318 (1955); State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 195, 132 A. 561 (1926). Pursuant to an appropriate state constitutional analysis, however, we have determined that our state due process provision provides greater protection for the criminal defendant. State v. Morales, 232 Conn. 707, 726-27, 657 A.2d 585 (1995) (rejecting federal litmus test of good or bad faith of police in failing to preserve potentially useful evidence, state due process clause requires trial court to employ balancing test that weighs reasons for unavailability of evidence *451against degree of prejudice to accused); State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988) (rejecting federal constitutional precedent by holding that due process clause of Connecticut constitution requires police to inform suspect of timely efforts by counsel to provide pertinent legal assistance). Accordingly, notwithstanding Staples, in my view, we write on a clean slate.
¶20In addition to the sociological and public policy reasons I have heretofore discussed, we look to the state’s common law before the adoption of the Connecticut constitution in 1818 to aid in interpreting our state constitution. State v. Oquendo, 223 Conn. 635, 650, 613 A.2d 1300 (1992). When doing so, however, we have held that the historical analysis must be tempered with a contemporary meaning. State v. Dukes, supra,209 Conn. 114-15 (“Constitutional provisions must be interpreted within the context of the times. . . . The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” [Citations omitted; internal quotation marks omitted.]).
¶21As I pointed out in my dissenting opinions in both Medinaand Stanley, valid and compelling historical reasons exist to require under the state constitution that the state has the burden of proving that a confession is voluntary beyond a reasonable doubt. In my analysis in those cases, I noted that the “value the framers of our state constitution placed on the right to remain silent is evident and important in determining the contours of the state constitutional protection. State v. Geisler, [222 Conn. 672, 685, 610 A.2d 1225 (1992)]. Zephaniah Swift, a leading jurist ... of 1818, wrote in his treatise on the law that ‘the confession must be perfectly voluntary: for if the least degree of influence *452appear to be exercised over the prisoner’s mind, to induce him to disclose his guilt, the whole will be rejected.’ . . . 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 408. Justice Swift also pointed out in his treatise on evidence that voluntary confessions ‘are deemed to be the most conclusive evidence . . . .’ Z. Swift, A Digest on the Law of Evidence (1810) p. 133. He noted, however, that ‘[t]here is, perhaps, no part of evidence in which there is so much misrepresentation and fabrication, as in testifying to the confession of a party.’ Id., p. 149.” (Emphasis in original.) State v. Stanley, supra,223 Conn. 698-99 (Berdon, J., dissenting). Indeed, in “this state the salutary principle embodied in the constitution — that no man is bound to criminate himself — has ever been rigidly adhered to.” State v. Coffee, 56 Conn. 399, 415, 16 A. 151 (1888).
¶22General “[c]ommon law precedent also leads me to the conclusion that our state constitution requires a higher standard of proof of voluntariness of a confession. E. Peters, ‘Common Law Antecedents of Constitutional Law in Connecticut,’ 53 Alb. L. Rev. 259, 263 (1989). Blackstone, in formally shaping the contours of our common law, wrote: ‘[I]ndeed, even in cases of felony at the common law, [confessions] are the weakest and most suspicious of all testimony; ever hable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.’ 4 W. Blackstone, Commentaries on the Laws of England (1807) p. 357.” State v. Stanley, supra,223 Conn. 699(Berdon, J., dissenting).
¶23Every state but one in the northeast has adopted a standard of proof in excess of the preponderance of the evidence to determine the voluntariness of a confession. See State v. Collins, 297 A.2d 620 (Me. 1972) (reasonable doubt); Commonwealth v. Mandile, 397 Mass. *453410, 492 N.E.2d 74 (1986) (same); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985) (same); State v. Franklin, 52 N.J. 386, 245 A.2d 356 (1968) (same); People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965) (same); State v. Arpin, 122 R.I. 643, 410 A.2d 1340 (1980) (clear and convincing). Other states have also come to the same conclusion adopting the reasonable doubt standard. Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991); Bradley v. Commonwealth, 439 S.W.2d 61 (Ky. 1969), cert. denied, 397 U.S. 974, 90 S. Ct. 1091, 25 L. Ed. 2d 268 (1970); Jones v. State, 461 So. 2d 686 (Miss. 1984); State v. Drayton, 287 S.C. 226, 337 S.E.2d 216 (1985), overruled in part on other grounds, State v. Torrence, 305 S.C. 45, 70, 406 S.E.2d 315 (1991); State v. Janis, 356 N.W.2d 916 (S.D. 1984); State v. Owens, 148 Wis. 2d 922, 436 N.W.2d 869 (1989). We should join these jurisdictions.
¶24In light of “the traditional belief that an accused may be convicted only if exacting measures have been taken to assure that the accused has been treated with the most scrupulous fairness by law enforcement officials”; (internal quotation marks omitted) State v. Stoddard, supra,206 Conn. 166; a judgment of conviction based in any part on a coerced confession must be set aside and the case remanded for a new trial. Id., 176-77.
¶25I find the thought that a man or woman may be convicted on the basis of a physically or psychologically coerced confession to be revolting. Requiring a reasonable doubt standard would not only elevate to its proper position the constitutional right not to be compelled to give evidence against oneself, it would also be consistent with the constitutional requirement of proof beyond a reasonable doubt in order to find guilt.
¶26Accordingly, I dissent.
¶27 “Thirteenth century commentators found an analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.’ Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, ¶ 6, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956).” Miranda v. Arizona, 384 U.S. 436, 458 n.27, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
¶28 The defendant, provided the following account of his testimony at the suppression hearing: “[A]t approximately 1 a.m. on January 15, 1993, he heard a banging at the door and someone saying it was the Waterbury police. He threw on some shorts and cracked the door open. The police said ‘open the door and kind of like pushed it in.’ Four officers came through the front door with guns drawn. The defendant was frightened and obeyed the order to sit on the couch. One of the officers, [Sergeant Neil] O’Leary, asked the defendant where Michael Sebastian was. The defendant responded ‘don’t tell me Mike had something to do with that murder. ’ The reason the defendant said this is the police had questioned him earlier about Sebastian’s whereabouts the night the lady was killed. The officers never gave the defendant any more information about why they had come into his house at 1:30 a.m. The defendant was confused and frightened and felt that he was being arrested for murder. He was told to get dressed and was ordered to do so in the living room. He was not free to move around the apartment. ‘They never really said the reason they were there. They told me I had to go with them downtown. I was taking a ride.’ After he was dressed, the defendant was allowed to kiss the baby goodbye, in the presence of two detectives, one of whom had his gun drawn. The defendant was escorted out the front door to the landing where he was handcuffed before he was taken down the stairs and put into the back of a police car. The defendant did not ask to get out of the cruiser because T felt that I was being arrested.’ At the station he was put in a small room with Detective [James] Egan and [Sergeant Robert] Henderson. He was told to explain how he and Mike had murdered the lady down the street. When the defendant started to protest and swear, Henderson hit him across the face, admonished him not to talk that way in his house and asked himif he understood his rights. The defendant responded: ‘Yes, I do and I’d like to have a lawyer present.” He said, ‘Do you have one?’ I said ‘no.’ He said, ‘Well, no public defender is going to come down here this time of night. ’ At this point the defendant was ‘very scared to death and pretty emotional.’ He did not ask to leave because he felt they would not allow that based on the fact that he had been refused permission to leave the room to use the lavatory, and so had to urinate in a trash can. Over the next several hours the defendant repeatedly denied involvement in either the [Pauline] Grincunas homicide or neighborhood burglaries perpetrated with Joe Fields and Sebastian. He did admit to breaking into one plumbing place with Sebastian and volunteered to take a lie detector test. Around 6:30 or 7 a.m., the defendant was moved to another interrogation and shown Sebastian’s statement, which named the defendant as the murderer. The police also showed him pictures of what they said was the crime scene and urged him to tell what he knew of Sebastian’s involvement.
¶29"Around 7:30 or 8 a.m., the defendant tried to take a snooze. He was very tired and had not had any sleep since the previous night. A detective woke him and warned that there was no sleeping allowed in this jail. Around 9 a.m., the defendant was told that Fraser was going to be arrested for harboring a fugitive based on the defendant’s bad check charges from Florida. A half *442hour later, O’Leary returned with a piece of paper which he told the defendant was an arrest warrant for Eraser. Ultimately, the defendant signed and initialed a confession. The defendant had no part in the giving of the statement and never, in fact, confessed. Instead, he signed an already completed and typed confession in order to prevent Fraser’s arrest. He denied ever being given Miranda rights over the course of the fourteen hour interrogation, and testified that he did not sign the Miranda card until after the police had extracted his signature on the confession they wrote up. The contents of the confession regarding his involvement in the murder were untrue.”
¶30The defendant provided the following account of Fraser’s testimony at the suppression hearing: “Carolyn Fraser contradicted the police account of a friendly dead-of-night visit by four armed detectives — two covering each door. She and the defendant were in bed during the early morning hours of January 15,1993, when, at about 1:15 a.m., there was aloud banging on the door. The defendant got up and asked who was there. She heard someone say, ‘Waterbury police.’ The defendant, who was not dressed, grabbed some shorts and started to open the door, at which point two officers pushed their way in. They ordered the defendant to sit on the couch and told Fraser to get out of bed and sit there with him. Four detectives came through the front door and two uniformed officers came through the back door. They asked the defendant where Sebastian was and told him ‘they wanted to take him for a ride downtown.’ After the police checked the defendant’s clothes, they had him dress in the living room. When the defendant asked to kiss the baby goodbye, he was escorted into the bedroom while one of the officers held his gun out. They took the defendant out the front door. As Fraser looked out the front window, she saw the defendant leaning chest up against the police car with his hands behind his back. Two detectives, [James] Griffin and [William] Cassada, remained in the apartment with her. Detective Griffin told Fraser that if she knew anything about what the defendant had done, she had better cooperate or she would be arrested and her children placed in foster care. Distraught, Fraser called her friend Selma Haddad and asked her to come over so that there would be someone with the children in the event Fraser was arrested.”
¶31The defendant provided the following account of Haddad’s testimony at the suppression hearing: “Selma Haddad testified that when she arrived and knocked on the apartment door, it was opened by an acquaintance of hers, Detective Sergeant Jim Griffin. After calming Fraser’s children, who had been upset by all the commotion, Haddad asked Griffin what was going on. Griffin told her that if Fraser ‘doesn’t cooperate with everything we want, she’s going to be arrested and her kids will go to [the department of children and youth services].’ Haddad said that although there were two officers inside the apartment and several police officers who went in and out over a several hour time span, Griffin was the only one she knew by name. She remained at the apartment until morning when she left, first to get coffee, and shortly thereafter to go to work around 8 a.m.”
¶32 I agree with the majority that our state constitution’s due process clause does not require electronic recording. Although I urge the police to voluntarily make such recordings from the moment the accused enters the police station until such time as all interrogation terminates, I leave to another day whether we should require this under our supervisory authority over the administration of justice.
¶33 “In making this determination [of whether the confession was in fact voluntarily rendered], the trial court will often have to decide which one of two self-serving accounts to believe, as the testimony presented at a . . . hearing ordinarily consists of conflicting versions by the defendant and law enforcement officers as to what occurred during the interrogation of the defendant by those officers which led to the defendant’s confession. (See Lego v. Twomey, supra, [404 U.S. 492 (Brennan J., dissenting)].) In light of the factual nature of this inquiry, the degree of certainty as to which a trial *448court must be convinced that a confession is voluntary will often be of controlling significance. (Id., [492].) Thus, under the preponderance of the evidence test, a trial court will more often resolve factual conflicts in the evidence in favor of admitting a challenged confession, and this will correspondingly increase the risk that some involuntary confessions will thereby be admitted. The contrary result would obtain, however, if the reasonable doubt standard were applied, and this would thus decrease the risk that involuntary confessions would be admitted. (Id., [493].)” People v. Jimenez, 21 Cal. 3d 595, 606, 580 P.2d 672, 147 Cal. Rptr. 172 (1978).
¶34 Two justices did not participate in Lego.
¶35 Although the trial court at the pretrial suppression hearing applied the heightened reasonable doubt standard, it failed to instruct the jury as to that standard. Of course, the issue of whether the confession is voluntary is one ultimately for the jury.