¶1(concurring). We join in the opinion of Mr. Justice Hall except insofar as it holds a jury should not be instructed to disregard a confession the jury finds to be involuntary. No doubt the rule in this jurisdiction at the time of the trial was as stated by Mr. Justice Hall although individual trial judges have charged differently and at one time, as Mr. Justice Hall points out, this State accepted or inclined to a view much resembling the one we believe to be sound. Roesel v. State, 62 N. J. L. 216, 236-239 (E. & A. 1898); Bullock v. State, 65 N. J. L. 557, 567-568 (E. & A. 1900). There are a number of competing views, each of which commands respectable authority. The question is not whether the rule applied in this case is demonstrably wrong or unfair. Indeed that rule, adopted by our predecessors after conscientious consideration and embraced by three members of the court, is supported by the numerical weight of decisions elsewhere. Although we may prefer a *558given approach, we cannot reasonably maintain that onrs is the single sound view of the matter. In these circumstances, we are unable to hold there was error in this case and hence we join in an affirmance. Since, however, we, a majority of the court, do prefer another approach, we are stating our views for the future guidance of the trial bench.
¶2 On the theoretical plane, it is said that voluntariness goes to the “competency” of the testimony and hence it would offend logic to direct a jury to “reject” evidence the court has admitted. We question the premise. The issue of voluntariness relates to the subject of credibility rather than competency as those terms are generally used in allocating the duties of the judge and jury. An involuntary confession may not be used, among other reasons, because of the probability that the end-product of. a coercive process is unreliable and unworthy of credit. The ultimate issue, factual in nature, is whether the confession was involuntary. That factual issue is indistinguishable from any other factual dispute within the traditional province of the jury. Hence, abstractly, the issue of voluntariness should be for the jury with appropriate instructions whenever men may reasonably differ with respect to the decisive factual claims. This is the rule in New York. Stein v. People of State of New York, 346 U. S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953). A weakness in that approach is that the jury may find the confession involuntary and still be swayed by its contents. To prevent that prejudice, it is appropriate to assign a larger role to the trial judge, i. e.} to determine initially whether the confession is involuntary. Perhaps the rule applied by the trial court in the present case was born of a desire to avoid such prejudice. See Maguire, Evidence of Guilt (1959), ■§ 3.061, at p. 130. If the purpose was thus to add to the protection of a defendant, “logic” hardly requires a diminution of the role of the jury as trier of the facts by making the court the exclusive and final judge of involuntariness.
¶3*559Incongruity is claimed in the phenomenon of a jury “reviewing” the finding of the court. An incongruity exists only if one accepts the premise we question, namely, that the issue is one of “competency” of evidence. Indeed, if “competency” were really involved, it would logically follow the court should instruct the jury that it has found the confession to be voluntary and that the jury must accept the judge’s finding in assaying its evidential worth. Perhaps on that premise all evidence relating to involuntariness should be kept from the jury upon the thesis that only the court is concerned with it. Our cases do not go to that length, and quite obviously because a charge to that effect might be tantamount to a direction of h verdict of guilty since in the ordinary case there is no reason to disbelieve a voluntary acknowledgment of guilt. Rather, under the doctrine applied in this case the jury is told it may consider all the circumstances surrounding the taking of the confession in determining whether to believe it. Those surrounding circumstances include the same controverted factual claim of coercion or other impropriety passed upon by the court. 3 Wigmore, Evidence (3d ed. 1940), § 861. Thus the jury is permitted to “review” the judge’s finding, but with the anomalous result that whereas a judge’s finding of involuntariness would require the confession to be excluded without regard to its truth, yet a jury could give decisive weight to a confession it believed to be involuntary. We find it difficult to understand why due process of law should mean one thing in the hands of a judge and something else in the hands of a jury. The error, we believe, stems from the unwarranted assumption that analytically “competency” of proof is involved whereas as we have already said the more tenable reason for the judge’s added role is the greater protection of the defendant.
¶4 We believe both judge and jury should operate upon the same standard. The judge should himself try the issue of voluntariness in the preliminary hearing and should exclude the confession if the State fails to prove it to be *560voluntary, and if he admits it into evidence, he should strike it if at a later stage involuntariness should appear. If the confession is admitted and there is proof as to involuntariness upon which reasonable men may disagree, the court should charge the jury first to' consider that issue under instructions outlining the controlling legal principles and to disregard the confession if it finds the1 State has not proved it to be voluntary. ' The jury should not at any time be informed of the trial court’s finding of voluntariness.
¶5It is said that if the judge’s role is not made final and exclusive, he may shirk his responsibility and abdicate in favor of a jury decision. Meltzer, "Involuntary Confessions: The Allocation of Responsibility between Judge and Jury,” 21 TJ. Chi. L. Rev. 317, 329 (1954). If this be so, the prospect is equally great under the rule we disapprove. We are far from confident that the rule has operated with the perfection attributed to it. At any rate, we are satisfied that justice is better served by the enjoining of both court and jury each to make original findings and to abide by the command of due process that an involuntary confession must be rejected without regard to the truth of its contents.
¶6Weintbaub, 0. J., and Schettibto, J., concurring in result.
¶7For affirmance—Chiei Justice Weintbaub, and Justices Buklifg, Jacobs, Fkafcis, Pkoctok, Hall and Schettino—-7.
¶8For reversal—None.