author: Mr. Justice White Mr. Justice Douglas,

text:
    FEDERAL POWER COMMISSION v. FLORIDA POWER & LIGHT CO.
    No. 70-38.
    Argued November 15, 1971
    Decided January 12, 1972

      Samuel Huntington argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Gordon Gooch, and Drexel D. Journey.

      Jefferson D. Giller argued the cause for respondent. With him on the brief were Leon Jaworski, Jay W. Elston, Harry A. Poth, Jr., and Richard M. Merriman.

    Briefs of amici curiae urging reversal were filed by George Spiegel and Melvin Richter for the Gainesville Utilities Department et ah, and by Northcutt Ely for the American Public Power Assn.
   Mr. Justice White

delivered the opinion of the Court.

We are asked to determine whether the Federal Power Commission exceeded its statutory authorization when it asserted jurisdiction over the Florida Power & Light Co. Section 201 (b) of the Federal Power Act, as amended, 49 Stat. 847, 16 U. S. C. § 824 (b), grants the Federal Power Commission jurisdiction over “the transmission of electric energy in interstate commerce and . . . the sale of electric energy at wholesale in interstate commerce, but . . . not [over] any other sale of electric energy . . . .” Section 201 (c) defines energy transmitted in interstate commerce as energy “transmitted from a State and consumed at any point outside thereof.” In Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945), we noted that by this definition the initial jurisdictional determination “was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test.” Id., at 529; FPC v. Southern California Edison Co., 376 U. S. 205, 209 n. 5 (1964).

In the case now before us the FPC hearing examiner and the Commission itself, utilizing two scientific tests, determined that the Florida Power & Light Co. (FP&L) generates energy that is transmitted in interstate commerce. They therefore held the company subject to the Commission’s jurisdiction. Respondent FP&L argues that an alternative model better represents the flow of its electricity; by use of this model it purports to demonstrate that its power has not flowed in interstate commerce. The Court of Appeals for the Fifth Circuit rejected the FPC’s tests as “not sufficient to prove the actual transmission of energy interstate.” 430 F. 2d 1377, 1383 (1970). It did not approve FP&L’s test (“Both [the FPC and the FP&L tests] suffer from the same vice,” id., at 1385), but because the FPC must shoulder the burden of proof, its finding of jurisdiction was set aside.

We granted certiorari to determine if either of the FPC’s tests provides an acceptable basis at law and a sufficient basis in fact for the establishment of jurisdiction. 401 U. S. 907 (1971).

I

FP&L is Florida’s largest electric utility. At the time relevant to this litigation it served nearly one million customers, ranked ninth nationally among electric companies in revenues, 14th in investment in gross utility electric plant, and 16th in kilowatt-hour sales. Despite this significant size, the peninsular nature of Florida, the concentration of the company’s sales in the southern part of the State, and the recurrent threat of hurricanes which might sever power lines combine to make the operations of the company unusually insular and independent of the operations of like companies in other States. All of FP&L’s equipment, including transmission lines, is confined to Florida and none of its lines directly connect with those of out-of-state companies.

FP&L does, however, indirectly connect with out-of-state companies. As a member of the Florida Pool, it is interconnected with the Florida Power Corp. (Corp), the Tampa Electric Co., the Orlando Utilities Commission, and the City of Jacksonville. These interconnected utilities and authorities coordinate their activities and exchange power as circumstances require. In 1964 FP&L transferred over 107 million kwh to Corp and received over 61 million kwh from Corp. If power from FP&L flows in interstate commerce it is because Corp interconnects just short of Florida’s northern border with Georgia Power Co. and regularly exchanges power with it. Georgia’s lines transmit the power out of or into Florida. There are numerous instances in which transfers between Georgia and Corp are recorded as coinciding with transfers between Corp and FP&L.

The Georgia-Corp interconnection serves another function. Corp, FP&L, and the other Florida Pool participants are members of the Interconnected Systems Group (ISG), a national interlocking of utilities that automatically provides power in case of emergencies. In time of emergency this power also would flow through Corp’s links with Georgia. To date FP&L has had no occasion to call for ISG power. But when a midwestern utility sustained a 580-megawatt generating loss, a regularly scheduled 8-megawatt FP&L contribution to the Florida Pool coincided with an 8-megawatt contribution from the pool to the ISG system.

These relationships establish the focal issue in this case. The FPC may exercise jurisdiction only if there is substantial evidentiary support for the Commission’s conclusion that FP&L power has reached Georgia via Corp or that Georgia’s power has reached FP&L because of exchanges with Corp. What happens when FP&L gives power to Corp and Corp gives power to Georgia (or vice versa)? Is FP&L power commingled with Corp’s own supply, and thus passed on with that supply, as the Commission contends? Or is it diverted to handle Corp’s independent power needs, displacing a like amount of Corp power that is then passed on, as respondent argues? Or, as the Commission also contends, do changes in FP&L’s load or generation, or that of others in the interconnected system, stimulate a reaction up and down the line by a signal or a chain reaction that is, in essence, electricity moving in interstate commerce? Upon answer to these questions, jurisdiction rides.

If FP&L were directly involved in power exchanges with Georgia, there would be no serious question about the resolution of this case. Section 201 of the Federal Power Act owes its origin to the determination of this Court that a direct transfer of power from a utility in Rhode Island to a utility in Massachusetts is in interstate commerce. See Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927). "Part II [of the Act] is a direct result of Attleboro." United States v. Public Utilities Comm’n of California, 345 U. S. 295, 311 (1953). There can be no doubt that § 201 achieves its end and fills the "Attleboro gap" by giving the FPC jurisdiction over direct exchanges. Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945).

Nor would there be any difficulty in resolving this case if the company or companies that stood between FP&L and the out-of-state power companies could be shown to be sometimes no more than a funnel. In Jersey Central Power & Light Co. v. FPC, 319 U. S. 61 (1943), the first of the major FPC jurisdictional cases to be considered by this Court, Jersey Central supplied power to the Public Service Electric & Gas Co. (also a New Jersey company), which in turn had exchange arrangements with Staten Island Edison Corp. (a New York company). The transfer from PSE&G to Staten Island was effected through a “bus”— a transmission line of three conductors into which a number of subsidiary lines connect. The FPC showed through extensive sampling of the logs of the relevant companies, that on at least a dozen occasions when Staten Island drew power from the bus only Jersey Central was supplying the bus. Thus, the intermediate presence of PSE&G was shown to be, in some circumstances, a null factor, and it was established that Jersey Central energy was moving in interstate commerce.

In the litigation before us the record does not disclose situations in which Corp operated as a null or insufficient factor. Thus, the FPC has not in this litigation demonstrated with the clarity and certainty obtaining in the Jersey Central case that the energy flows that are a prerequisite to jurisdiction occurred.

This is not, however, the equivalent of saying that the flows did not occur or that there was not substantial evidence for concluding that they did. The Court of Appeals was hardly less emphatic than the Federal Power Commission in its conclusion that FP&L’s “proof” that the flows did not occur was unconvincing. The court purported to have no opinion whether the flows had actually occurred. The question that must be resolved, therefore, is whether the evidence presented, though not so certain and convincing as that which the FPC offered in Jersey Central, was nonetheless adequate to establish jurisdiction.

We turn first to the conflicting contentions of the parties.

II

The Federal Power Commission followed alternate routes to its conclusion that FP&L energy moved in interstate commerce. The first course, based on what the Commission called the electromagnetic unity of response of interconnected electrical systems, is best represented in the words of the hearing examiner:

“[N]one of the connected electric systems including that of Florida, Corp, and Georgia has any control over the actual transfers of power at each point of interconnection because of the free flow characteristics of electric networks. . . .
“An electric utility system such as Florida [Power & Light] is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked eleetromagneti-cally. This means that electric generators, under ordinary operating conditions run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same.
“If a housewife in Atlanta on the Georgia system turns on a light, every generator on Florida’s system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load. If sensitive enough instruments were available and were to be placed throughout Florida’s system the increase in generation by every generator on Florida [Power & Light] could be precisely measured.”

The hearing examiner concluded:

“The cause and effect relationship in electric energy occurring throughout every generator and point on the Georgia, Corp and Florida systems constitutes interstate transmission of electric energy by, to, and from Florida. It is the electromagnetic unity of response of Florida, Corp, Georgia and other interconnecting systems that constitutes the interstate transmission of electric energy by Florida.”

By this analysis a change in FP&L’s load or generating pattern depletes or adds to the force available in out-of-state lines; therefore FP&L is transmitting energy in interstate commerce.

The alternative analysis by the Commission and its staff experts concentrates on power flow within the “Turner bus” — the point of connection between Corp’s and FP&L’s systems. Power supplied to the bus from a variety of sources is said to merge at a point and to be commingled just as molecules of water from different sources (rains, streams, etc.) would be commingled in a reservoir. On this basis the FPC need only show (1) FP&L power entering the bus and (2) power leaving the bus for out-of-state destinations at the same moment, in order to establish the fact that some FP&L power goes out of State. The FPC purported to make this demonstration by a series of tracing studies.

FP&L objects. The first approach is said to be technologically sound, but legally insufficient in that it does not demonstrate that any FP&L power flows in interstate commerce, but only that it affects interstate commerce. Congress, it is argued, could have chosen to grant the FPC jurisdiction over activities affecting commerce, but it clearly did not do so.

The second approach of the FPC purports to meet the standard at law, but according to FP&L it is technologically unsound. A bus is not a point, but rather a tangible, physical three-strand power line, in this case 225 feet in length. It is argued that it is not a general reservoir. Power, according to this argument, enters and is drawn off the line at discrete identifiable points. Power from any given source will not flow further along the line than loads of wattage cumulatively equal to the wattage of the power source. The distribution of entry lines and wattage loads on the Turner bus is said to demonstrate that all of the FP&L’s power will be exhausted by Corp’s load lines before the point, further down the line, where Georgia’s load intervenes. When power flows in the opposite direction (i e., north to south) again the effect is one of displacement: Georgia’s power goes to Corp’s loads and the output of Corp’s generators is thus displaced to FP&L.

III

We do not find it necessary to approve or disapprove the Federal Power Commission’s analysis based on unity of electromagnetic response. Its alternative assertion that energy commingles in a bus is, in our opinion, sufficient to sustain jurisdiction.

In evaluating this second approach, the courts are called upon to do no more than assess the Commission’s judgment of technical facts. If the Commission’s conclusion of commingling is not overturned, then the legal consequences are clear.

The conclusion of the FPC that FP&L energy commingled with that of Corp and was transmitted in commerce rested on the testimony of expert witnesses. The major points expounded by these witnesses were probed, and in our opinion not undercut, by the hearing examiner’s questions, FP&L’s cross-examination, and rebuttal testimony of FP&L witnesses. The hearing examiner found the testimony persuasive and held that his conclusions could be independently reached upon it. A majority of the Commission, reasoning similarly, endorsed these conclusions.

A court must be reluctant to reverse results supported by such a weight of considered and carefully articulated expert opinion. Particularly when we consider a purely factual question within the area of competence of an administrative agency created by Congress, and when resolution of that question depends on “engineering and scientific” considerations, we recognize the relevant agency’s technical expertise and experience, and defer to its analysis unless it is without substantial basis in fact. An appreciation of such different institutional capacities is reflected in the congressional directive defining the terms of judicial review of FPC action: “The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive.” Federal Power Act § 313 (b), 16 U. S. C. § 825l (b). See Gainesville Utilities Dept. v. Florida Power Corp., 402 U. S. 515, 526-529 (1971).

The Court of Appeals appears to have rejected the Commission's conclusions for two reasons. First, it apparently regarded these conclusions as supported by mere speculation rather than evidence. In its view, expert opinion about the nature of reality, however logically compelling, is not fact. Second, even if the Commission’s views might be said to be supported by substantial evidence, the Court of Appeals apparently thought it important that the Commission acknowledged that its conclusions rest upon representations of a reality imperfectly understood. From this the Court of Appeals concluded that it was dealing with a “simplified characterization” that, despite the frequent use of that same characterization by other courts of appeals, was too uncertain in its application to any particular situation to be used as the basis for establishing jurisdiction.

We reverse and reinstate the FPC’s order because we do not think these points are well taken. As to the Court of Appeals’ first reservation, we hold that well-reasoned expert testimony — based on what is known and uncontradicted by empirical evidence — may in and of itself be “substantial evidence” when first-hand evidence on the question (in this case how electricity moves within a bus) is unavailable. This proposition has been so long accepted, and indeed has been so often applied specifically to challenges to the FPC’s determination of technical matters, that we do not consider it fairly in dispute. See, e. g., FPC v. Southern California Edison Co., 376 U. S. 205, 209 n. 5 (1964); Travelers’ Indemnity Co. v. Parkersburg Iron & Steel Co., 70 F. 2d 63, 64 (1934); United States ex rel. Chapman v. FPC, 191 F. 2d 796, 808 (1951), aff’d, 345 U. S. 153 (1953). As Judge Parker said in the Court of Appeals’ opinion in the latter case:

“The [substantial-evidence] rule is no different because the questions involve matters of scientific knowledge and the evidence consists largely of the opinion of experts. The court may not, for that reason, ignore the conclusions of the experts and the Commission and put itself in the absurd position of substituting its judgment for theirs on controverted matters of hydraulic engineering. It is in just such matters that the findings of the Commission, because of its experience and the assistance of its technical staff, should be accorded the greatest weight and the courts should be most hesitant to substitute their judgment for that of the Commission.” 191 F. 2d, at 808.

On affirming, this Court noted,

“[W]e cannot say, within the limited scope of review open to us, that the Commission’s findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason.” 345 U. S., at 171.

The elusive nature of electrons renders experimental evidence that might draw the fine distinctions required by this case practically unobtainable. That does not mean that expert testimony is insubstantial and that FP&L is beyond federal regulation.

We think the second, related, concern expressed by the Court of Appeals exaggerates the standard of proof required in civil cases such as this. The lower court would apparently require tracing studies showing an energy flow-through like that demonstrated in Jersey Central.

We do not think Jersey Central sets such high jurisdictional standards. Special circumstances in that case (the occasional operation of PSE&G as a null factor) permitted the FPC to present clear and compelling proof of interstate transactions. But we assessed the FPC’s determination, not by the standards of certainty, but rather by the substantial-evidence test. The fact that the FPC was exceptionally convincing in that leading case does not raise the standard that it must meet in all future cases.

Finding no reason in the case law for imposing a standard of certainty, we are not willing to construct one. It is not true, as argued by respondent, that an engineering test of certainty is needed to reserve an area of state jurisdiction. On top of the “engineering and scientific test” that controls this case, the Federal Power Act imposes a “legalistic or governmental” test. Federal jurisdiction may not reach “facilities used in local distribution” of energy. 16 U. S. C. § 824 (b). Thus, state jurisdiction is clearly demarcated and preserved. Connecticut Light & Power Co. v. FPC, 324 U. S. 515 (1945).

A requirement of tracing studies of the sort demanded by the Court of Appeals — if they are feasible at all — would take one to two years to conduct. Even under the FPC’s supposedly too- easily met criteria of jurisdiction, the FP&L matter took almost four years to pass through Commission proceedings; it has been before the courts for four more years. If the congres-sionally mandated system is to function meaningfully, the judiciary cannot overwhelm it with unworkably high standards of proof. New England Divisions Case, 261 U. S. 184, 197 (1923); Railroad Comm’n of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563, 579 (1922).

We note, moreover, that Jersey Central type tracing studies become less feasible as interconnections grow more complicated. Arkansas Power & Light Co. v. FPC, 368 F. 2d 376, 382 (CA8 1966), quoting 34 F. P. C. 747, 751. The requirement of Jersey Central type tracing might encourage the artificial and wasteful complication of interconnections for the purpose of avoiding federal jurisdiction. More important, as interconnections proliferate and energy pools grow larger, jurisdictional hurdles like those erected by the Court of Appeals would become ever more difficult to clear. Thus, the greater the need for regulation, the more likely it would become (under the Court of Appeals’ rule) that regulation would not be achieved.

As pointed out by the Court of Appeals for the Seventh Circuit in an FPC case similar to this one, even in a criminal prosecution where the highest standards of proof are required, guilt may be shown by circumstantial evidence. The FPC has used tracing studies to show what went into and out of the Turner bus at a given moment; it has marshaled expert opinion to suggest what may reasonably be said to have occurred in the bus at the instant of transmission; it has presented this evidence in a closely reasoned and empirically uncontra-dicted opinion. Recognizing that the men responsible do not now fully understand electricity, though they know how to use it, and use it on an ever-expanding basis, we do not demand more of the Commission than that its conclusions be substantially supported by expert opinion that is in accord with the facts known for certain. The Commission has done enough to establish its jurisdiction.

The decision of the Court of Appeals is reversed and the case is remanded for reinstatement of the order of the Federal Power Commission.

Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Douglas,

with whom The Chief Justice concurs,

dissenting.

There can be no doubt that Congress has constitutional power to regulate under the Commerce Clause the interstate ‘'commingling” of electric power involved in the instant case. See Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 525-530. The question is whether it has done so.

The Examiner explains the “electromagnetic unity” theory and tells us in electrical engineering terms why that unasserted power of Congress exists:

“An electric utility system such as [respondent’s] is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked electromagnetically. This means that electric generators, under ordinary operating conditions, run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same.
“The electric systems of [respondent] and all other interconnected systems are essentially alike as to electrical, electromagnetic and electromechanical characteristics. Because they are alike, it is possible to have presently existing interconnected operations on a very large scale, extending from the Rocky Mountains to the Atlantic Ocean and from the Canadian to the Mexican border.
“If a housewife in Atlanta on the Georgia system turns on a light, every generator on [respondent’s] system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load.” 37 F. P. C. 544, 567-568.

Evidently undesirous of explicitly overruling the proposition that “[m]ere connection determines nothing,” Jersey Central Power & Light Co. v. FPC, 319 U. S. 61, 72 (1943), the Court avoids validating the FPC’s electromagnetic unity theory as the jurisdictional hold over the respondent. Instead, relying on the Commission’s expertise, the Court purports to hold a narrower ground that actual flows of FP&L’s electricity were in fact measured passing out of Florida through the employment of the Commission’s “commingled” tracing method. Closer analysis of this latter wizardry, which had previously been rejected by the Commission, Connecticut Light & Power Co., 3 F. P. C. 132 (1942), reveals, however, that actual flows were not in fact measured but were simply hypothesized using an engineering model which, as the dissenting commissioners observed, “[assumed] the fact in issue, and thus [begged] . . . the question of jurisdiction.” The conventional tracing method previously used in cases such as this one reached an entirely different result — that no actual interstate flow of FPL power had occurred. Jersey Central Power & Light Co. v. FPC, supra; Connecticut Light & Power Co. v. FPC, 324 U. S. 515.

The Commission’s abandonment of the conventional test in favor of the commingled method will now mean that every privately owned interconnected facility in the United States (except for those isolated in Texas) is within the-FPC’s jurisdiction. Both tracing methods assume that a momentary increase in FP&L’s generation over its local needs will be passed on to the interconnecting Florida Power Corp. (Corp) system located between FP&L and the state line. The conventional system assumes that such excesses will be absorbed by the first few loads reached in the Corp system and therefore will never cross the state line. On the other hand, the commingled approach assumes that the first load which the FP&L excess reaches will continue to rely upon other utilities’ power to a large extent and therefore will absorb only a part of the FP&L excess. The leftover FP&L excess will then travel to the next load, but again, will only supply part of those consumers’ needs, with the remainder passing on to the next load, and so on, until some fractional part of the original FP&L excess crosses the state line. Extending the assumption’s application, it is clear that any momentary increase in output by any generator located at any point in the ISG grid will send a surge of power throughout the entire network. If this assumption is approved, then it is difficult to perceive what remains of the Jersey Central proposition that “[m]ere connection determines nothing.”

These scientific facts are, of course, the basis for the grid systems, much in vogue these days. But the Commission has no authority to order a company to enter a grid. Unless it is done voluntarily, as was true here, the Commission by virtue of § 202 (b) of the Federal Power Act can act only “upon application of any State commission or of any person engaged in the transmission or sale of electric energy.” 16 U. S. C. § 824a (b).

A company transmitting electric energy in interstate commerce is subject to regulation by the Commission of its wholesale rates. 16 U. S. C. § 824 (b). But there is no claim here that wholesale selling is involved; and the minuscule nature of the “commingling” that has taken place and its incidental nature are doubtless the reasons why the Commission has not undertaken that phase of regulation. The case is therefore unlike Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414, 419-420. All that is involved here is an effort to make respondent follow the Commission’s Uniform System of Accounts. 16 U. S. C. §825 (a).

Rather than the engineering battle over tracing methods, the central question ought to be whether the “commingling” is so de minimis as to warrant the fastening of the federal bureaucracy on this local company. The limited purpose of this legislation was stated clearly in the Senate Report:

“The decision of the Supreme Court in Public Utilities Commission v. Attleboro Steam & E. Co. (273 U. S. 83) placed the interstate wholesale transactions of the electric utilities entirely beyond the reach of the States. Other features of this interstate utility business are equally immune from State control either legally or practically.” S. Rep. No. 621, 74th Cong., 1st Sess., 17.

While federal regulation was to be pervasive,- once fastened onto a company, Congress expressed an unambiguous policy to preserve and to rely upon effective and adequate state regulation:

“The revised bill would impose Federal regulation only over those matters which cannot effectively be controlled by the States. The limitation on the Federal Power Commission’s jurisdiction in this regard has been inserted in each section in an effort to prevent the expansion of Federal authority over State matters.” Id., at 18 (emphasis supplied).

And this objective is presented in the statute’s language:

“It is hereby declared . . . that Federal regulation . . . is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.” Public Utility Holding Company Act of 1935, § 201 (a), 49 Stat. 847.

The Commission does not assert that Florida’s regulation of FP&L is inadequate. Each year the Florida Public Service Commission conducts field audits of electric utilities to ensure compliance with its accounting practices and depreciation rates. Other than enhancing the slogan of “federal leadership” the Commission cites no function which it might better fulfill than the state regime.

The Court’s result also runs counter to the expressed desire of Congress to encourage voluntary interconnection. Id., §202 (a), 49 Stat. 848. Interconnection between two local companies will now subject both to federal jurisdiction if either is also connected to a grid which at some point crosses a state line.. To avoid the costs associated with switching from state to federal regulation a utility may now be induced to sever such interconnections. As the dissenting commissioners recognized:

“[Interconnections serve the objective of reliability, and . . . reliability is strongly in the public interest. But with the present near universality of interconnections, it would seem that the Commission’s opinion would as likely lead to present connections being broken as to new connections being established or existing connections strengthened.” 37 F. P. C., at 559 (1967).

In light of these congressional purposes I would not superimpose federal regulation on top of state regulation in case of de minimis transmissions not made by prearrangement or in case of wholesale transactions. In Jersey Central Power & Light Co. v. FPC, supra, at 66-67, we let federal regulation be fastened, though the energy transmitted was “small.” Yet the transmissions apparently were neither accidental nor de minimis. Id., at 66 n. 4.

In the instant case respondent is a member of the Interconnected Systems Group (ISG) which covers the southeastern and central portions of the United States. The Commission approved the Examiner’s finding that “all 140 members of the ISG operate in parallel and are interlocked electromagnetically; and that FPL [respondent] can receive from or contribute to ISG up to 100 mw. The record further supports the Examiner’s findings that FPL normally has no control over the actual transfers of electric power and energy with any particular electric system with which it is interconnected; that since electric energy can be delivered virtually instantaneously when needed on a system at a speed of 186,000 miles per second, such energy can be and is transmitted to FPL when needed from out-of-state generators, and in turn can be and is transmitted from FPL to help meet out-of-state demands; and finally, that there is a cause and effect relationship in electric energy occurring throughout every generator and point on the FPL, Corp, Georgia, and Southern systems which constitutes interstate transmission of electric energy by, to, and from FPL.” 37 F. P. C., at 549.

In the instant case apart from the infinitesimal and sporadic exchanges the Commission only found that “FPL [respondent] contributed 8 mw to ISG to assist a midwestern utility which had sustained a 580-mw generator loss.” Ibid. And that single episode could be measured in terms of seconds only. Such fleeting episodes are not in my view sufficient to displace a state regime with the federal one, since the Congress promised that as much as possible be left to the States. I would not make that a hollow promise.

If we allow federal pre-emption in this case, then we have come full cycle, leaving local authorities control of electric energy only insofar as municipal plants are concerned. The federal camel has a tendency to occupy permanently any state tent.

That may be a wise course; but if so, Congress should make the decision.

       The relevant sections of 16 U. S. C. § 824, stated in full, are as follows:
      “(a) It is declared that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest, and that Federal regulation of matters relating to generation to the extent provided in this subchapter and subchapter III of this chapter and of that part of such business which consists of the transmission of electric energy in interstate commerce and the sale of such energy at wholesale in interstate commerce is necessary in the public interest, such Federal regulation, however, to extend only to those matters which are not subject to regulation by the States.
      “(b) The provisions of this subchapter shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce, but shall not apply to any other sale of electric energy or deprive a State or State commission of its lawful authority now exercised over the exportation of hydroelectric energy which is transmitted across a State line. The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.
      “(c) For the purpose of this subchapter, electric energy shall be held to be transmitted in interstate commerce if transmitted from a State and consumed at any point outside thereof; but only insofar as such transmission takes place within the United States.
      “(d) The term ‘sale of electric energy at wholesale’ when used in this subchapter, means a sale of electric energy to any person for resale.”

       Seventy-five percent of FP&L’s load is concentrated at the southern tip of Florida, some 400 miles south of the Georgia border. Transcript of Proceedings before the FPC 241. Reprinted in App. 2 et seq. (hereinafter referred to as (T)).

       Corp was before this Court in Gainesville Utilities Dept. v. Florida Power Corp., 402 U. S. 515 (1971), in which case its operations are described in some detail. Corp is a public utility subject to the FPC’s jurisdiction.

       “The purpose of the energy interchanges is to take care of temporary needs. There are no economy sales (sales by a company that can produce lower cost power to a higher cost producer) because fuel costs are similar for all members [of the Florida Pool].” Opinion of the FPC Hearing Examiner, 37 F. P. C. 544, 562.

       Hearing Exhibit No. 15, p. 1028 (T).

       It has other interconnections across state lines, but we concentrate, as did the FPC, on a single Georgia-Corp connection. If FP&L power is shown to flow through this connection the others need not be considered, because jurisdiction is established. See n. 7, infra.

         Opinion of the FPC Hearing Examiner, 37 F. P. C., at 564.

       FPC staff exhibits revealed 42 instances, discovered by meter readings at selected hours over a four-month period, in which a transfer from Georgia to Corp’s bus was instantly followed by a transfer from that bus to FP&L. Hearing Exhibits Nos. 18, pp. 1048-1054 (T), and 19, pp. 1055-1059 (T). Five instances of power flow from FP&L to Corp’s bus, followed by transmission from that bus to Georgia were recorded over the same period. Hearing Exhibit No. 32, p. 1116 (T). “For example, Staff’s Exhibit No. 18, at page 6, graphically demonstrates that on September 28, 1964, at 7:00 o’clock p. m., there was a flow of 51,000 kw of interstate power from Georgia to Corp and an instantaneous flow of 50,000 kw of . . . power from Corp to FPL.” Opinion of the FPC, 37 F. P. C., at 550.

       Opinion of the Hearing Examiner, 37 F. P. C., at 567-568.

       If any FP&L power has reached Georgia, or FP&L makes use of any Georgia power, no matter how small the quantity, FPC jurisdiction will attach because it is settled that Congress has not “conditioned the jurisdiction of the Commission upon any particular volume or proportion of interstate energy involved, and we do not . . . supply such a jurisdictional limitation by construction.” Connecticut Light & Power Co. v. FPC, 324 U. S. 515, 536. See also Pennsylvania Water & Power Co. v. FPC, 343 U. S. 414 (1952).

       See Exhibits Nos. 18 and 19, pp. 1048-1059 (T).

       This argument is developed by the dissent in Jersey Central Power & Light Co. v. FPC, 319 U. S. 61, 78 et seq. Note particularly p. 88: “It is interesting to compare, in this connection, other statutes enacted by the same Congress [as the one which enacted Part II of the Federal Power Act]. Three adopted in July and August 1935 covered activities ‘affecting’ commerce; three, including the Federal Power Act in question, adopted in August 1935 did not cover activities ‘affecting’ commerce.” Thus it was inferred that we are dealing with a particularly “discriminating use of language.”

       “Neither the examiner nor the Commission treated the commingling theory as a scientific fact depicting accurately what does occur but only as the more adequate way to conceptualize actual occurrences.
      “The Commission expert witness Jacobsen acknowledged commingling has never been verified experimentally as fact.” 430 F. 2d 1377, 1384-1385.

       See principally Indiana & Michigan Electric Co. v. FPC, 365 F. 2d 180 (CA7), cert. denied, 385 U. S. 972 (1966); Arkansas Power & Light Co. v. FPC, 368 F. 2d 376 (CA8 1966); Public Service Co. of Indiana v. FPC, 375 F. 2d 100 (CA7), cert. denied, 387 U. S. 931 (1967); Cincinnati Gas & Electric Co. v. FPC, 376 F. 2d 506 (CA6), cert. denied, 389 U. S. 842 (1967).

       “Sometimes the reason for tolerating a gap either between evidence and findings or between findings and decision has to do with limitations of human intellects or limitations on the magnitude of investigations that may be conducted in particular circumstances. Not all propositions of fact that are useful and used in the administrative process are susceptible of proof with evidence. Or developing the evidence would be inordinately expensive.” 2 K. Davis, Administrative Law Treatise § 16.11, p. 473 (1958).

       The weight of such testimony was properly recognized by Lord Mansfield some 190 years ago:
      “The facts in this case are not disputed. In 1758 the bank was erected, and soon afterwards the harbour went to decay. The question is, to what has this decay been owing? The defendant says, to this bank. Why? Because it prevents the backwater. That is matter of opinion: — the whole case is a question of opinion, from facts agreed upon. Nobody can swear that it was the cause .... [T]he parties go down to trial . . . and Mr. Smeaton is called. A confusion now arises from a misapplication of terms. It is objected that Mr. Smeaton is going to speak, not as to facts, but as to opinion. That opinion, however, is deduced from facts which are not disputed — the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all these facts, is, that, mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands the construction of harbours, the causes of their destruction, and how remedied. In matters of science no other witnesses can be called. . . . The question then depends on the evidence of those who understand such matters; and when such questions come before me, I always send for some of the brethren of the Trinity House. I cannot believe that where the question is, whether a defect arises from a natural or an artificial cause, the opinions of men of science are not to be received. . . . The cause of the decay of the harbour is ... a matter of science .... Of this, such men as Mr. Smeaton alone can judge. Therefore we are of opinion that his judgment, formed on facts, was very proper evidence.” Folkes v. Chadd, 3 Doug. 157, 158-160, 99 Eng. Rep. 589-590 (1782).
      Modern analysis follows this perception. See 7 J. Wigmore, Evidence §§ 1917-1929, 1976 (3d ed. 1940 and Supp. 1970).

       “This evidence, we think, furnishes substantial basis for the conclusion of the Commission that facilities of Jersey Central are utilized for the transmission of electric energy across state lines.” Jersey Central, supra, n. 12, at 67.

       “Logic would seem to dictate that where the utility is a member of a combination of utilities and has continuous access to an integrated pool of interstate energy, the tracing of out-of-state energy is indeed difficult, burdensome, and perhaps impossible.” Arkansas Power & Light Co. v. FPC, 368 F. 2d, at 382.

        Public Service Co. of Indiana v. FPC, 375 F. 2d, at 104 n. 7.

       The final FPC decision was handed down on May 2, 1967. We do not know when the FPC began its investigation of FP&L. But ignoring what must have been an extended period of initial staff work, we observe that the record shows that FP&L was formally notified on October 3, 1963, that in the opinion of the FPC staff it was subject to FPC jurisdiction. Order Initiating Investigation and Hearing 2412 (T).

       “We reject I&M’s fundamental proposition in this case that in order to prevail, the Federal Power Commission must do what I&M claims to be impossible, that is, to prove by either tracing or some other unnamed ‘scientific and engineering proof’ that out-of-state energy reaches the wholesale customers. We might recall that even in criminal cases, guilt beyond a reasonable doubt often can be established by circumstantial evidence.” Indiana & Michigan Electric Co. v. FPC, 365 F. 2d 180, at 184.

       “Nobody can say for certain just how electricity is really transmitted.” Opinion of the Hearing Examiner, 37 F. P. C., at 568.

       Apart from the exigencies of “war.” See 16 U. S. C. § 824a (c).

       This is not a case where state regulation has a hiatus that the federal regime fills. There is not, in other words, a no-man’s area here.
      Fla. Stat. §366.05 (1969), authorizes the Florida Power Commission to “prescribe uniform system and classification of accounts for all public utilities, which among other things shall set up adequate, fair and reasonable depreciation rates and charges.” A related section includes within the term public utility every person, corporation, partnership, association, or other legal entity and their lessees, trustees, or receivers operating, managing, or controlling any plant or other facility supplying electricity. Id., §366.02.
      The Commission exercises this power. See 1966 Florida Public Service Comm’n Annual Report 11:
      “The Accounting and Auditing Department has the responsibility of maintaining surveillance over the books and records of the various companies within the Electric . . . industries subject to regulation by the Commission-.
      “In meeting this responsibility, the Department maintains a comprehensive file of statistical, financial, and accounting data in the form of annual, quarterly, and monthly reports submitted by the various companies. It maintains a continuous examination of these reports and conducts continuing field audits on the company premises to verify the accuracy ... to determine the compliance of the basic accounting records with the Uniform System of Accounts prescribed in the Commission’s Rides and Regulations.” (Emphasis supplied.)

        Public Utilities Comm’n v. Attleboro Steam & Electric Co., 273 U. S. 83 (1927), held that even absent federal legislation the Commerce Clause precluded state rate regulation of sales of energy made by a Rhode Island producer of electricity to a Massachusetts distributor. Thus, one purpose of the Act was to fill the “Attleboro gap” in rate regulation.

         Inasmuch as virtually every privately owned utility in the United States (save those in Texas) is interwoven with a grid which at some point intersects a state boundary, the Commission’s commingled tracing assumption will effectively eliminate electric utility regulation by States. In light of the congressional intent to avoid this outcome the Court has placed perhaps excessive reliance on the doctrine of judicial deference to agency expertise.


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Brennan,

license: Public Domain

text:
    LEGO v. TWOMEY, WARDEN
    No. 70-5037.
    Argued November 11, 1971
    Decided January 12, 1972

      Nathan Lewin, by appointment of the Court, 402 U. S. 928, argued the cause and filed a brief for petitioner.

      James B. Zagel, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William J. Scott, Attorney General, Joel M. Flaum, First Assistant Attorney General, and Warren K. Smoot, Assistant Attorney General.
   Mr. Justice White

delivered the opinion of the Court.

In 1964 this Court held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. Jackson v. Denno, 378 U. S. 368. While our decision made plain that only voluntary confessions may be admitted at the trial of guilt or innocence, we did not then announce, or even suggest, that the factfinder at a coercion hearing need judge voluntariness with reference to an especially severe standard of proof. Nevertheless, since Jackson, state and federal courts have addressed themselves to the issue with a considerable variety of opinions. We granted certiorari in this case to resolve the question. 401 U. S. 992 (1971).

Petitioner Lego was convicted of armed robbery in 1961 after a jury trial in Superior Court, Cook County, Illinois. The court sentenced him to prison for 25 to 50 years. The evidence introduced against Lego at trial included a confession he had made to police after arrest and while in custody at the station house. Prior to trial Lego sought to have the confession suppressed. He did not deny making it but did challenge that he had done so voluntarily. The trial judge conducted a hearing, out of the presence of the jury, at which Lego testified that police had beaten him about the head and neck with a gun butt. His explanation of this treatment was that the local police chief, a neighbor and former classmate of the robbery victim, had sought revenge upon him. Lego introduced into evidence a photograph that had been taken of him at the county jail on the day after his arrest. The photograph showed that petitioner’s face had been swollen and had traces of blood on it. Lego admitted that his face had been scratched in a scuffle with the robbery victim but maintained that the encounter did not explain the condition shown in the photograph. The police chief and four officers also testified. They denied either beating or threatening petitioner and disclaimed knowledge that any other officer had done so. The trial judge resolved this credibility problem in favor of the police and ruled the confession admissible. At trial, Lego testified in his own behalf. Although he did not dispute the truth of the confession directly, he did tell his version of the events that had transpired at the police station. The trial judge instructed the jury as to the prosecution’s burden of proving guilt. He did not instruct that the jury was required to find the confession voluntary before it could be used in judging guilt or innocence. On direct appeal the Illinois Supreme Court affirmed the conviction. People v. Lego, 32 Ill. 2d 76, 203 N. E. 2d 875 (1965).

Four years later petitioner challenged his conviction by seeking a writ of habeas corpus in the United States District Court for the Northern District of Illinois. He maintained that the trial judge should have found the confession voluntary beyond a reasonable doubt before admitting it into evidence. Although the judge had made no mention of the standard he used, Illinois law provided that a confession challenged as involuntary could be admitted into evidence if, at a hearing outside the presence of the jury, the judge found it voluntary by a preponderance of the evidence. In the alternative petitioner argued that the voluntariness question should also have been submitted to the jury for its separate consideration. After first denying the writ for failure to exhaust state remedies, the District Court granted a rehearing motion, concluded that Lego had no state remedy then available to him and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F. Supp. 38 (1970). The Court of Appeals for the Seventh Circuit affirmed.

I

Petitioner challenges the judgment of the Court of Appeals on three grounds. The first is that he was not proved guilty beyond a reasonable doubt as required by In re Winship, 397 U. S. 358 (1970), because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Implicit in the claim is an assumption that a voluntariness hearing is designed to enhance the reliability of jury verdicts. To judge whether that is so we must return to Jackson v. Denno, 378 U. S. 368 (1964).

In New York prior to Jackson, juries most often determined the voluntariness of confessions and hence whether confessions could be used in deciding guilt or innocence. Trial judges were required to make an initial determination and could exclude a confession, but only if it could not under any circumstances be deemed voluntary. When voluntariness was fairly debatable, either because a dispute of fact existed or because reasonable men could have drawn differing inferences from undisputed facts, the question whether the confession violated due process was for the jury. This meant the confession was introduced at the trial itself. If evidence challenging its voluntariness were adduced, the jury was instructed first to pass upon voluntariness and, if it found the confession involuntary, ignore it in determining guilt. If, on the other hand, the confession were found to be voluntary, the jury was then free to consider its truth or falsity and give the confession an appropriate weight in judging guilt or innocence.

We concluded that the New York procedure was constitutionally defective because at no point along the way did a criminal defendant receive a clear-cut determination that the confession used against him was in fact voluntary. The trial judge was not entitled to exclude a confession merely because he himself would have found it involuntary, and, while we recpgnized that the jury was empowered to perform that function, we doubted it could do so reliably. Precisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence, we did not believe a jury could be called upon to ignore the probative value of a truthful but coerced confession; it was also likely, we thought, that in judging voluntariness itself the jury would be influenced by the reliability of a confession it considered an accurate account of the facts. “It is now axiomatic,” we said,

“that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U. S. 401; Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra.

We did not think it necessary, or even appropriate, in Jackson to announce that prosecutors would be required to meet a particular burden of proof in a Jackson hearing held before the trial judge. Indeed, the then-established duty to determine voluntariness had not been framed in terms of a burden of proof, nor has it been since Jackson was decided. We could fairly assume then, as we can now, that a judge would admit into evidence only those confessions that he reliably found, at least by a preponderance of the evidence, had been made voluntarily.

We noted in Jackson that there may be a relationship between the involuntariness of a confession and its unreliability. But our decision was not based in the slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. That case was not aimed at reducing the possibility of convicting innocent men.

Quite the contrary, we feared that the reliability and truthfulness of even coerced confessions could impermis-sibly influence a jury’s judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U. S. 534, 540-541 (1961). The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions. Nothing in that opinion took from the jury any evidence relating to the accuracy or weight of confessions admitted into evidence. A defendant has been as free since Jackson as he was before to familiarize a jury with circumstances that attend the taking of his confession, including facts bearing upon its weight and voluntariness. In like measure, of course, juries have been at liberty to disregard confessions that are insufficiently corroborated or otherwise deemed unworthy of belief.

Since the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts, we cannot accept the charge that judging the admissibility of a confession by a preponderance of the evidence undermines the mandate of In re Winship, 397 U. S. 358 (1970). Our decision in Winship was not concerned with standards for determining the admissibility of evidence or with the prosecution’s burden of proof at a suppression hearing when evidence is challenged on constitutional grounds. Win-ship went no further than to confirm the fundamental right that protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., at 364. A high standard of proof is necessary, we said, to ensure against unjust convictions by giving substance to the presumption of innocence. Id., at 363. A guilty verdict is not rendered less reliable or less consonant with Winship simply because the admissibility of a confession is determined by a less stringent standard. Petitioner does not maintain that either his confession or its voluntariness is an element of the crime with which he was charged. He does not challenge the constitutionality of the standard by which the jury was instructed to decide his guilt or innocence; nor does he question the sufficiency of the evidence that reached the jury to satisfy the proper standard of proof. Petitioner’s rights under Winship have not been violated.

II

Even conceding that Winship is inapplicable because the purpose of a voluntariness hearing is not to implement the presumption of innocence, petitioner presses for reversal on the alternative ground that evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be determined admissible beyond a reasonable doubt in order to give adequate protection to those values that exclusionary rules are designed to serve. Jackson v. Denno, supra, an offspring of Brown v. Mississippi, 297 U. S. 278 (1936), requires judicial rulings on voluntariness prior to admitting confessions. Miranda v. Arizona, 384 U. S. 436 (1966), excludes confessions flowing from custodial interrogations unless adequate warnings were administered and a waiver was obtained. Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio, 367 U. S. 643 (1961), make impermissible the introduction of evidence obtained in violation of a defendant’s Fourth Amendment rights. In each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts. These independent values, it is urged, themselves require a stricter standard of proof in judging admissibility.

The argument is straightforward and has appeal. But we are unconvinced that merely emphasizing the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond reasonable doubt. Evidence obtained in violation of the Fourth Amendment has been excluded from federal criminal trials for many years. Weeks v. United States, supra. The same is true of coerced confessions offered in either federal or state trials. Bram v. United States, 168 U. S. 532 (1897); Brown v. Mississippi, supra. 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 very 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.

To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. Of course, the States are free, pursuant to their own law, to adopt a higher standard. They may indeed differ as to the appropriate resolution of the values they find at stake.

III

We also reject petitioner’s final contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew. To the extent this argument asserts that the judge’s determination was insufficiently reliable, it is no more persuasive than petitioner’s other contentions. To the extent the position assumes that a jury is better suited than a judge to determine voluntariness, it questions the basic assumptions of Jackson v. Denno; it also ignores that Jackson neither raised any question about the constitutional validity of the so-called orthodox rule for judging the admissibility of confessions nor even suggested that the Constitution requires submission of voluntariness claims to a jury as well as a judge. Finally, Duncan v. Louisiana, 391 U. S. 145 (1968), which made the Sixth Amendment right to trial by jury applicable to the States, did not purport to change the normal rule that the admissibility of evidence is a question for the court rather than the jury. Nor did that decision require that both judge and jury pass upon the admissibility of evidence when constitutional grounds are asserted for excluding it. We are not disposed to impose as a constitutional requirement a procedure we have found wanting merely to afford petitioner a second forum for litigating his claim.

The decision of the Court of Appeals is

Affirmed.

MR. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

When the prosecution, state or federal, seeks to put in evidence an allegedly involuntary confession, its admissibility is determined by the command of the Fifth Amendment that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Davis v. North Carolina, 384 U. S. 737, 740 (1966) ; Malloy v. Hogan, 378 U. S. 1, 7-8 (1964); Bram v. United States, 168 U. S. 532, 542-543 (1897). This right against compulsory self-incrimination is the “essential mainstay” of our system of criminal prosecution, Malloy v. Hogan, supra, at 7, “a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth,” Rogers v. Richmond, 365 U. S. 534, 541 (1961). What is thereby protected from governmental invasion is, quite simply, “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will.” Malloy v. Hogan, supra, at 8. Hence, a confession is involuntary and inadmissible unless it is “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U. S. 199, 208 (1960); see Reck v. Pate, 367 U. S. 433, 440 (1961).

Ideally, of course, a defendant’s compelled utterance would never be admitted into evidence against him. As we said in Jackson v. Denno, 378 U. S. 368, 376 (1964), it is “axiomatic” that a criminal conviction cannot stand if it “is founded, in whole or in part, upon an involuntary confession . . . even though there is ample evidence aside from the confession to support the conviction.” Yet I doubt that informed observers of the criminal process would deny that at least some compelled utterances slip through, even assuming scrupulous adherence to constitutional standards and the most rigorous procedural protections. Jackson was an attempt to move that reality somewhat closer to the ideal. We there rejected the New York rule because it “did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial” and consequently “did not adequately protect [a defendant’s] right to be free of a conviction based upon a coerced confession.” Id., at 377. As the Court today points out, “[t]he procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances.” Ante, at 485.

There is no need to dwell upon the importance our American concept of justice attaches to preserving the integrity of the constitutional privilege. Both the rule that automatically reverses a conviction when an involuntary confession was admitted at trial and the procedure established in Jackson for determining whether a confession was voluntary are means to further the end that no utterance of a defendant not the product of his own free choice will be used against him. The Court today reaffirms what we held in Jackson: “[W]hen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered.” Ante, at 489. But the Court goes on to hold that it follows from Jackson that “the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.” Ibid. I disagree. In my view, the rationale of Jackson requires the conclusion that the preponderance standard does not provide sufficient protection against the danger that involuntary confessions will be employed in criminal trials.

A Jackson hearing normally presents the factfinder with conflicting testimony from the defendant and law enforcement officers about what occurred during the officers’ interrogation of the defendant. The factfinder’s resolution of this conflict is often, as a practical matter, the final resolution of the voluntariness issue. Jackson, supra, at 390-391. This case is a typical example. Petitioner testified that he confessed because the police had beaten him; the police testified that there was no beating. As the Court notes, “[t]he trial judge resolved this credibility problem in favor of the police and ruled the confession admissible.” Ante, at 480. When the question before the factfinder is whether to believe one or the other of two self-serving accounts of what has happened, it is apparent that the standard of persuasion will in many instances be of controlling significance. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). Although the Court suggests “that federal rights have [not] suffered from determining admissibility by a preponderance of the evidence” and that there has been no showing “that admissibility rulings have been unreliable . . . because not based on some higher standard,” ante, at 488, I do not think it can be denied, given the factual nature of the ordinary voluntariness determination,' that permitting a lower standard of proof will necessarily result in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard. The converse, of course, is also true. Requiring the higher standard means that some voluntary confessions will be excluded as involuntary even though they would have been found voluntary under the lower standard.

The standard of proof required for a criminal conviction presents a similar situation, yet we have held that guilt must be established by proof beyond a reasonable doubt. In re Winship, 397 U. S. 358, 361-364 (1970) ; see id., at 370-372 (Harlan, J., concurring.) Permitting proof by a preponderance of the evidence would necessarily result in the conviction of more defendants who are in fact innocent. Conversely, imposing the burden of proof beyond a reasonable doubt means that more defendants who are in fact guilty are found innocent. It seems to me that the same considerations that demand the reasonable-doubt standard when guilt or innocence is at stake also demand that standard when the question is the admissibility of an allegedly involuntary confession.

We 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 than for there to be an erroneous verdict in the plaintiff’s favor.” Id., at 371 (Harlan, J., concurring). We do not take that view in criminal cases. We said in Winship 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 ... Id., at 363. As Mr. Justice Harlan put it in his concurring opinion, the requirement of proof beyond a reasonable doubt 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., at 372.

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. I am not prepared to justify that view. 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. If we are to provide “concrete substance” for the command of the Fifth Amendment that no person shall be compelled to condemn himself, we must insist, as we do at the trial of guilt or innocence, that the prosecution prove that the defendant’s confession was voluntary beyond a reasonable doubt. In my judgment, to paraphrase Mr. Justice Harlan again, the command of the Fifth Amendment reflects the determination of our society that it is worse to permit involuntary self-condemnation than it is to deprive a jury of probative evidence. Just as we do not convict when there is a reasonable doubt of guilt, we should not permit the prosecution to introduce into evidence a defendant’s confession when there is a reasonable doubt that it was the product of his free and rational choice.

I add only that the absolute bar against the admission of a defendant’s compelled utterance at his criminal trial is fundamentally an expression of the American commitment to the moral worth of the individual. What we said in Winship bears repeating here. “[U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” Id., at 364. I believe that it is just as critical to our system of criminal justice that when a person’s words are used against him, no reasonable doubt remains that he spoke of his own free will.

       State courts that have considered the question since Jackson have adopted a variety of standards, most of them founded upon state law. Many have sanctioned a standard of proof less strict than beyond a reasonable doubt, including proof of voluntariness by a preponderance of the evidence or to the satisfaction of the court or proof of voluntariness in fact. E. g., Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965); State v. Dillon, 93 Idaho 698, 471 P. 2d 553 (1970), cert. denied, 401 U. S. 942 (1971); People v. Harper, 36 Ill. 2d 398, 223 N. E. 2d 841 (1967); State v. Milow, 199 Kan. 576, 433 P. 2d 538 (1967); Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968); Commonwealth v. White, 353 Mass. 409, 232 N. E. 2d 335 (1967); State v. Nolan, 423 S.W.2d 815 (Mo. 1968); State v. White, 146 Mont. 226, 405 P. 2d 761 (1965), cert. denied, 384 U. S. 1023 (1966); State v. Brewton, 238 Or. 590, 395 P. 2d 874 (1964); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A. 2d 426 (1968); Monts v. State, 218 Tenn. 31, 400 S.W.2d 722 (1966); State v. Davis, 73 Wash. 2d 271, 438 P. 2d 185 (1968).
      Other States, using state law or not specifying a basis, require proof beyond a reasonable doubt. E. g., State v. Ragsdale, 249 La. 420, 187 So. 2d 427 (1966), cert. denied, 385 U. S. 1029 (1967); State v. Keiser, 274 Minn. 265, 143 N. W. 2d 75 (1966); State v. Yough, 49 N. J. 587, 231 A. 2d 598 (1967); People v. Huntley, 15 N. Y. 2d 72, 204 N. E. 2d 179 (1965); State v. Thundershield, 83 S. D. 414, 160 N. W. 2d 408 (1968); State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N. W. 2d 753 (1965), cert. denied, 384 U. S. 1017 (1966).
      Two federal courts have held as an exercise of supervisory power that voluntariness must be proved beyond a reasonable doubt. Ralph v. Warden, 438 F. 2d 786, 793 (CA4 1970), clarifying United States v. Inman, 352 F. 2d 954 (CA4 1965); Pea v. United States, 130 U. S. App. D. C. 66, 397 F. 2d 627 (1967); cf. United States v. Schipani, 289 F. Supp. 43 (EDNY 1968), aff’d, 414 F. 2d 1262 (CA2 1969), cert. denied, 397 U. S. 922 (1970), requiring the Government to prove beyond a reasonable doubt that certain evidence was not tainted by violation of the Fourth Amendment.

       In ruling the confession admissible, the judge stated:
      “The petitioner has admitted under oath he had a struggle with the complaining witness over the gun; he was wounded, obtained a facial wound. The Officers testified he was bloody at the time he was arrested.
      “I don’t believe the defendant’s testimony at all that he was beaten up by the Police. The condition he is in is well explained by the defendant himself.”

       Illinois followed what we described in Jackson v. Denno, 378 U. S. 368 (1964), as “the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession . . . .” Id., at 378. While the procedures of all the States could not be neatly classified, we noted that some followed the Massachusetts procedure whereby the judge himself first resolves evidentiary conflicts and determines whether a confession is in fact voluntary. If he is unable so to conclude, the confession may not be admitted into evidence. If judged voluntary and therefore admissible, the jury must also determine the coercion issue and is instructed to ignore a confession it finds involuntary. Id., at 378 n. 8. Other States had adopted the New York procedure at issue in Jackson. Our decision in Jackson cast no doubt upon the orthodox and Massachusetts procedures but did call into question the practice of every State that did not clearly follow one of these procedures. A thorough tabulation of what States did in the wake of Jackson appears in 3 J. Wigmore, Evidence 585-593 (J. Chadbourn rev. 1970).

        People v. Wagoner, 8 Ill. 2d 188, 133 N. E. 2d 24 (1956); People v. Thomlison, 400 Ill. 555, 81 N. E. 2d 434 (1948).

       Respondent makes no contention here that petitioner either waived the right to adjudicate his federal claims or deliberately bypassed state procedures for testing those claims. Cf. Fay v. Noia, 372 U. S. 391, 439 (1963).

       The Seventh Circuit’s affirmance is unreported. United States ex rel. Lego v. Pate, No. 18313 (CA7 Oct. 8, 1970).

       A more thorough description of the New York procedure is found in Jackson v. Denno, 378 U. S., at 377-391.

        Jackson v. Denno, 378 U. S., at 376-377.

       “Judge” is used here and throughout the opinion to mean a factfinder, whether trial judge or jury, at a voluntariness hearing. The proscription against permitting the jury that passes upon guilt or innocence to judge voluntariness in the same proceeding does not preclude the States from impaneling a separate jury to determine voluntariness. Jackson v. Denno, 378 U. S., at 391 n. 19.

       See, e. g., Haynes v. Washington, 373 U. S. 503 (1963); Spano v. New York, 360 U. S. 315 (1959); Payne v. Arkansas, 356 U. S. 560 (1958).

       See, e. g., Frazier v. Cupp, 394 U. S. 731 (1969); Boulden v. Holman, 394 U. S. 478 (1969); Harrison v. United States, 392 U. S. 219 (1968); Greenwald v. Wisconsin, 390 U. S. 519 (1968); Clewis v. Texas, 386 U. S. 707 (1967); Davis v. North Carolina, 384 U. S. 737 (1966); cf. Procunier v. Atchley, 400 U. S. 446 (1971).

       We noted that coerced confessions are forbidden in part because of their “probable unreliability.” Jackson v. Denno, 378 U. S., at 385-386. However, it had been settled when this Court decided Jackson that the exclusion of unreliable confessions is not the purpose that a voluntariness hearing is designed to serve. Rogers v. Richmond, 365 U. S. 534 (1961). The sole issue in such a hearing is whether a confession was coerced. Whether it be true or false is irrelevant; indeed, such an inquiry is forbidden. The judge may not take into consideration evidence that would indicate that the confession, though compelled, is reliable, even highly so. Id., at 545. As difficult as such tasks may be to accomplish, the judge is also duty-bound to ignore implications of reliability in facts relevant to coercion and to shut from his mind any internal evidence of authenticity that a confession itself may bear.

       In Jackson, 378 U. S., at 377-391, we traced the genesis of the view that due process forbids the use of coerced confessions, whether or not reliable. The Court had departed from that view in Stein v. New York, 346 U. S. 156 (1953), whose premise was that a confession is excludable because of its inherent untrustworthiness. The Stein premise was repudiated in Rogers v. Richmond and Rogers was reaffirmed in Davis v. North Carolina, 384 U. S., at 739, and Johnson v. New Jersey, 384 U. S. 719, 729 n. 9 (1966). That case continues to serve as the basis for evaluating coercion claims. See cases cited in n. 11, supra.

       This is the course that petitioner pursued. Cf. Jackson v. Denno, 378 U. S., at 386 n. 13. Although 18 U. S. C. §3501 (a) is inapplicable here, it is relevant to note the provisions of that section:
      “(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.”

       Nothing is to be gained from restating the constitutional rule as requiring proof of guilt beyond a reasonable doubt on the basis of constitutionally obtained evidence and then arguing that rights under Winship are diluted unless admissibility is governed by a high standard. Transparently, this assumes the question at issue, which is whether a confession is admissible if found voluntary by a preponderance of the evidence. United States v. Schipani, supra, n. 1, followed this unsatisfactory course in a Fourth Amendment case but stopped short of basing the decision on the Constitution.

       It is no more persuasive to impose the stricter standard of proof as an exercise of supervisory power than as a constitutional rule. Cf. Ralph v. Warden, supra, n. 1, clarifying United States v. Inman, supra, n. 1; Pea v. United States, supra, n. 1.

       See cases cited in n. 1, supra.

      My view that the reasonable-doubt standard must be imposed upon the prosecution does not depend upon whether that standard would be more effective than some lower standard in deterring police misconduct. When a defendant challenges his confession as involuntary, “the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was ‘free and voluntary ....’” Malloy v. Hogan, 378 U. S. 1, 7 (1964). It is true that the defendant will frequently allege police misconduct, as petitioner did here. Nevertheless, as we said in Townsend v. Sain, 372 U. S. 293,308 (1963), “[a]ny questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.” (Emphasis in original.)