*1 June 1993.] S020126. [No. PEOPLE,
THE Respondent, Plaintiff CAHILL, MARK Defendant and Appellant. STEVEN *4 Counsel
Janice M. Court, under Lagerlof, appointment by for Defendant Supreme and Appellant. Laethem, Defender,
Fern Bacon, M. State Public Robert D. State Deputy Defender, Littlefield, Public Wilbur F. (Los Public Defender Angeles), Goldstein, Laurence Defenders, M. Sarnoff and J. Douglas Deputy Public and John SinkM. as Amici Curiae on behalf of Defendant and Appellant. John K. Van de General, and Daniel Kamp E. Lungren, Richard Attorneys Williamson, B. Iglehart and General, George Chief Assistant Attorneys Arnold Anderson, O. Overoye General, Robert R. Assistant Attorneys Nelson, Attorneys Deputy A. Shirley Kerry, A. Edgar W. Thorpe, Scott General, and Respondent. for Plaintiff
Opinion
States
the United
decisions of both
GEORGE, J.
a number of years,
For
a “coerced”
that whenever
have held
and this court
Court
Supreme
trial,
at a criminal
evidence
has been received
“involuntary”
without
regard
the conviction is required,
reversal” of
“automatic
confession,
received,
unrelated to
evidence
the additional
strength
Arkansas
(See,
Payne v.
e.g.,
defendant’s guilt.
that tends to establish
981,
975,
844];
78 S.Ct.
L.Ed.2d
(1958)
U.S.
(1960) 54
97];
v. Trout
P.2d
Berve
290 [332
1418].)
A.L.R.2d
354 P.2d
Cal.2d
585 [6
(1991) 499 U.S.
v. Fulminante
Arizona
however,
Fulminante),
majority
(hereafter
In determine this we must law, a reversal of the automatic law change compels California federal “involuntary” confes and usage, employ we the terms “coerced” 1Consistently past with coercion, by physical psychological or interchangeably to refer to confessions obtained sions benefit, indicates “totality when the of circumstances” by promises leniency or or (See generally 1 and rational choice.” was not a of the defendant’s “free product confession Witkin, 439-451; Israel, 6.2, (3d Evidence Cal. pp. & Procedure LaFave Criminal § Rule, 614-623, confessions].) This 1986) [involuntary Hearsay ed. §§ example, for other reasons—for category does not confessions that are inadmissible include right to counsel constitutional they been obtained in violation of the defendant’s because have see, however, California past we illegal an detention or arrest. As shall exploitation or confessions erroneously admitted of “automatic reversal” to all applied decisions have rule was held confession upon particular based the reason a and have not drawn distinctions 496-497, inadmissible. (See 502-503) post, pp. trial, admitted at involuntary whenever an has been or conviction circumstances, whether, under such be considered error appropriate harmless under state law.
I trial, At convicted Mark Steven jury defendant Cahill numerous offenses, Code, (Pen. one count murder including degree of first §§ 189), (§ 211), (§261, (a)(2)), one count count subd. robbery rape one degree (§ (a)), three counts of first subd. count of second burglary one degree (§ (b)), subd. two unlawful of a burglary taking and counts of Code, (Veh. 10851). motor vehicle conjunction degree with first § conviction, murder three jury allegations found true special-circumstance 190.2, 190.2, (§ (§ —robbery-murder (a)(17)(i)), subd. subd. rape-murder 190.2, (a)(17)(iii)), (§ (a)(17)(vii))—and and burglary-murder subd. also found that used defendant the commission of the murder deadly weapon 12022). (§ At the conclusion guilt proceedings, of the of the phase prosecution declined to seek the penalty, death the trial court sentenced defendant to life imprisonment consecutive possibility without parole, an aggregate determinate sentence years.
On appeal, Court of reversed all of the Appeal murder-related convic- tions,3 while affirming the In reaching convictions. its remaining conclusion offenses, regard with to the murder-related Appeal Court of determined confession, that defendant’s obtained during questioning by police after shortly defendant’s arrest and received in evidence as part case-in-chief, prosecution’s The Court involuntary coerced. of Ap- found peal regard that the confession had been elicited police through implied promise of benefit or leniency, arising, substantial from the part, interrogating inaccurate misleading officers’ statements *6 murder, the concerning definition of which legal degree first omitted any reference to felony murder.4
After that the concluding confession was and thus should not involuntary trial, have been admitted the of Court went on to hold the Appeal that noted, 2Unless otherwise all section references are to the Penal Code. 3The murder-related convictions degree include the first murder conviction and the related special allegations, circumstance the of rape robbery, convictions and and one of the first degree burglary convictions. All of these were offenses committed in course of the same victim, against incident and the same were the subject challenged portion and of the of defendant’s confession. 4The Court of Appeal specifically found “the admitting that trial court erred in evidence of defendant’s response interrogation statements in to after Bell introduced the topic of [Officer] ” murder,’ ‘cold premeditated blooded and that objectionable noted statement officer’s in regard this occurred after a period substantial of questioning. reversal of the automatic involuntary required admission of the confession convictions, any nature or of regard strength without murder-related confession, evidence, had been introduced to the tainted other unrelated conclusion, in its initial of Appeal, at trial. of Court support (People cited this court decisions both opinion, Jimenez States 672]) and the United 580 P.2d Cal.3d 605 (Rose Court Clark U.S. Supreme 3101]). 106 S.Ct. General, review, and, while sought on behalf of the Attorney People, was the United States Court Supreme for review petition pending, noted, Fulminante, U.S. 279. As rendered its decision line Court overruled a of the United States majority Supreme Fulminante or automatic- reversible-per-se of that court’s decisions had applied had admitted involuntary reversal rule cases which an been trial, involuntary and instead that the erroneous admission concluded under the federal “harmless-beyond-a-rea- confession should be evaluated that, States of recent United standard a substantial number sonable-doubt” decisions, held to other constitutional Court had been applicable Supreme 329-334, id., L.Ed.2d at (See pp. “trial errors.” 499 U.S. at pp. J.).) After Fulminante Rehnquist, 111 S.Ct. at C. (opn. 1263-1266] decision, matter Court of we review retransferred this to the granted light for reconsideration Fulminante. Appeal that, reconsideration, its After reiterated conclusion Appeal Court or coerced involuntary view of the trial court’s erroneous admission of an confession, re- was the murder-related convictions automatic reversal of relevant the Court reading precedents, From its California quired. rule, automatic existing compelling concluded that California Appeal of a whenever an or coerced confession involuntary reversal conviction trial, on independent admitted at improperly grounded provisions the federal constitutional solely the California Constitution and not on Appeal decisions overruled Fulminante. As a Court consequence, interpreting held it was under decisions governing California compelled, law, without the murder-related convictions state reverse applying undertaking analysis. harmless-error *7 review,
Thereafter, spe- for granted we People’s subsequent petition the state issue to before “to whether cifically argued be our court limiting erroneously court Constitution automatic reversal where trial compels coerced admits defendant’s confession.”
II outset, At the shall not helpful clarify issues we and light address of the contentions of opinion, parties order our limiting accompanying grant review.
First, we do not redetermine whether the under which circumstances involuntary defendant’s confession was elicited rendered it or under coerced California law. Past cases establish or category involuntary coerced confessions wide and in encompasses range circumstances cludes not the most only familiar of confessions extracted from a example (see, means of actual or suspect threatened violence or torture physical e.g., People (1944) 801]), v. Jones Cal.2d 604-611 P.2d but also confessions elicited by those psychological ploys interrogation use, whose techniques although less than the resort egregious physical torture, violence or nonetheless been have deemed to be with a inconsistent defendant’s to be free from right (See, compelled self-incrimination. e.g., Quinn People (1964) 61 Cal.2d Cal.Rptr. 552-554 393 P.2d 705], cited.) and cases The Court of that the Appeal interrogation concluded technique employed during police questioning of defendant this case rendered defendant’s resulting “involuntary” long confession under a line of cases that have held confessions when inadmissible result obtained as a officials, express implied promises, or on the part of law enforcement or “benefit” in the “leniency” event the defendant (See, confesses. e.g., People (1977) v. McClary 20 Cal.3d 227-230 620]; P.2d People Rogers (1943) 722]; P.2d 342, 345; v. Barric 49 Cal. v. Johnson 41 Cal. 452, 454-455.) As our limiting order suggests, of our purposes decision in this we case shall assume that the Court of Appeal correct finding defendant’s confession involuntary.
Second, the General Attorney does not contend this case that an involuntary coerced confession is admissible a criminal trial under law, current California but rather specifically acknowledges “California’s strong, longstanding absolute rule prohibiting admission into evi- dence aof aby defendant which has been coerced by law enforcement.” we Accordingly, have no occasion this case to decide *8 I, sec 8—article provision Proposition “Truth-in-Evidence” whether the 28, Califor Constitution—has altered (d), of the California tion subdivision (Coerced of coerced confessions.5 inadmissibility with to the regard nia law confessions, course, federal under remain inadmissible unquestionably note, however, exclusionary unlike the We that principles.) constitutional or search an unconstitutional evidence obtained as a result of rule applied judicially has been viewed as traditionally in California seizure—which rights constitutionally privacy the violation of remedy protected created 905, P.2d (see, (1955) Cal.2d 439-451 v. Cahan e.g., 883-884, 513]; A.L.R.2d In re Lance W. invol of an 744])—the rule the admission barring 694 P.2d part courts by has been viewed the California untary long against privilege of the substance of the California constitutional parcel which, terms, Const., I, (Cal. 15), specifically its self-incrimination art. § cause to be a criminal provides compelled not. . . be “[p]ersons may (See, Loper e.g, witness themselves . . . .” against LaFave, (2d and Seizure ed. Cal. P. See also Search 720]. in the 1987) 1.1(a), protection § [“[UJnlike Fifth self-incrimination Amendment, the text the Fourth no mention is made Amendment] [in (Italics barring proscription.” from evidence the fruits of a violation [its] issue, Thus, it has been added.)].) we not decide the because although do case, Attorney for the clearly explanation there is a litigated plausible law no bars longer to refrain from that California arguing General’s decision of a coerced confession a criminal trial. the admission whether, under California the sole issue we face is Accordingly, law, in a criminal trial the erroneous admission of a coerced confession whether, under automatic reversal of a conviction on appeal, compels circumstances, be on upheld appeal despite a conviction properly some at trial. the erroneous admission of such confession
Ill
outset,
at this time
significance
at the
this issue is of practical
As noted
Fulminante,
of the United States
Court’s recent decision
Supreme
because
Fulminante, a
of decisions
487 570, 460, Clark, U.S. & supra, v. 577-578 fn. 6 L.Ed.2d Rose 470-471].)6 478 [92 line view for the authority, quarter-century In of this past compelled by principles have federal constitutional California courts been criminal whenever a coerced confes- to reverse a conviction automatically need, trial, and thus there has been recent sion has been admitted at no compelled to determine whether similar result was authorized years, under California law. 279, decision, however,
As a the result of Fulminante 499 U.S. In federal rule now governing nante, changed. constitutional has Fulmi numerous, Chief Justice noted the recent federal Rehnquist’s opinion federal Court decisions have constitutional harm Supreme applied in a (id. less-error rule L.Ed.2d great variety pp. contexts at 306-307 [113 329-330, 111 decisions]), at at pp. p. [citing S.Ct. 16 concluded 1263] that, cases, as in those of a erroneous admission coerced error,” be should treated as a “trial to the federal properly subject ordinary 18, California, test than harmless-error v. 386 rather Chapman U.S. aas “structural defect” which trial that affects framework within proceeds, subject analy that—as not to federal harmless-error properly sis—is (499 considered per reversible se. U.S. at L.Ed.2d pp. [113 329-333, at 1263-1266].) at pp. S.Ct. under Fulmi Accordingly, nante, court, Constitution, a state appellate without the federal now violating affirm a conviction despite the erroneous admission of a coerced confession, if the court determines that the admission of confession was harmless beyond reasonable doubt. law,
The question before us is whether California independent federal constitutional the automatic requirements, compels reversal of conviction whenever a coerced confession erroneously has been admitted a criminal trial.
IV
resolving
issue
error standard
proper prejudicial
under
law,
California
we
begin with
governing California constitutional provi-
Constitution,
sion. Unlike the United States
which includes no provision
18,
Chapman
California, supra,
6In
v.
386 U.S.
stated
prior
court
that “our
cases have
indicated that there are some constitutional
so
rights
basic to a fair trial that their infraction
cited,
can never be
Arkansas,
treated as harmless error” and
example,
one
“Payne
975,
U.S.
(coerced
(386
L.Ed.2d
[2
S.Ct.
confession).”
U.S.
23 &
844]
fn. 8 [17
710].)
Clark,
570,
L.Ed.2d at
705,
And in Rose v.
supra, 478 U.S.
fn. 6
L.Ed.2d
470-471], the court observed that
examples Chapman
“[e]ach
cited
errors
that could
Arkansas,
never
harmless either
process,
aborted
basic
Payne
trial
(hereafter,
the California
4y2>, a
added to
provision initially
former section
4V2, the
in
after the enactment of former section
Shortly
Constitution
1911.7
by
were considered
meaning
provision
and
of
proper application
People
O’Bryan
(1913)
court in
The in with charged defendant a union had been trial, a nonunion a strike. At testified murdering employee during O’Bryan behalf, in that he had maintaining his own the fatal shot but admitting firing shoot, and intended to not the victim. Both its case-in-chief only frighten, defendant, to permitted cross-examination of the was prosecution shortly statements that had made to the after O’Bryan grand jury introduce his arrest. When taken before that was not body, O’Bryan represented decline be a witness right against counsel and was not informed of his to to him trial. The against jury or that his statements be used might himself murder, him he convicted of appealed. AVi, VI, initially adopted judgment former article section read: “No shall be 7As aside, granted any ground jury set or new trial criminal case on the of misdirection of the evidence, improper rejection any pleading or the admission or or for error in matter of unless, evidence, examination including after an of the cause the court procedure, entire opinion complained miscarriage justice.” be of the that the error of has resulted in a shall cases, provision apply The was amended in to to civil cases as well as criminal and in 1914 VI, general was to part moved its current location as article section as 1966
reorganization of the California Constitution. notes, O’Bryan 8Although, opinion signed by majority as the dissent the lead was not court, throughout years opinion uniformly the 60 since that decision that has been cited majority opinions authority interpreting followed in numerous as the seminal the harm Fleming (See, (1913) People provision e.g., less-error of the California Constitution. O’Bryan]; Vallejo etc. R.R. Co. v. Reed Cal. eight P. months after 291] [decided , Orchard Co. (1915) 238]; People (1945) Cal. 545 553-554 P. Sarazzawski 934]; 243]; v. Watson Cal.2d P.2d P.2d 46 Cal.2d 687, 697-698, v. Collins 742].) fn. 552 P.2d 5 [131 The suggest dissent does not otherwise. initially testimony O’Bryan’s On the lead concluded that appeal, opinion have not been admitted his trial because grand jury before should every right course was in violation the constitutional pursued “[t]he case, be a witness any against ‘be criminal person compelled, I, Cal., 13.)” (Const. (165 sec. Cal. at opinion himself.’ art. defendant, grand “Here the when before the explained: brought jury, under an the crime under Taken custody guilt investigation. accusation sheriff, into the body of that sworn and examined without presence counsel, the aid his rights, and without instruction cannot *11 in said that his the fair interrogation voluntary. submission to was sense The great a preponderance authority testimony given by of is that so (Id. is not be at against 62.) defendant to used him.” p.
After it was finding constitutional error to admit such statements—state confession, “did ments that not amount a in to but were admissible evidence 61)— the defendant as at against against (165 declarations interest” Cal. p. the went to opinion on decide “whether the character and effect of the error reversal,” “[tjhis were such as require to a be noting that must question VI, answered with section 4lA of article regard due the terms of to added to (Id. the constitution in 63.) amendment at adopted p. 1911.” issue, In addressing this O’Bryan first described the the lead in opinion background and the of purpose constitutional then-recently adopted provi- The opinion sion. explained that even prior to the of former section adoption Vi, appellate courts California had their to affirm a recognized authority conviction, error, criminal the despite existence of when the error com- plained of was “trivial” did or not affect a the right” “substantial of defend- When, (165 however, 63.)9 ant. Cal. at p. the error kind was a “which might or have might not turned the (165 scale the against defendant” Cal. 64), case, courts, p. depending upon the facts of the the specific appellate 4Vz, the prior to adoption former section had the interpreted provisions VI, former article section 4 the (limiting jurisdiction of appellate courts criminal cases questions alone”) “to of law as precluding reviewing “the courts from the weighing evidence the purpose forming opinion whether the error had or had not fact worked no injury. jurisdic- Having fact, tion matters of court which the appeal pending was bound to apply doctrine that prejudice was presumed to follow from substantial (165 error.” O’Bryan Cal. at p. lead opinion noted that on limitation courts had appellate produced few instances” “[i]n unsatisfactory results that hampered effective and prompt enforcement of 9Penal Code (and section enacted in provided provide) continues in this regard: hearing appeal, “After the court give regard must judgment without technical defects, errors or or exceptions, rights which do parties.” not affect substantial law, new trials to grant courts “to appellate criminal requiring omissions, even a review though of technical errors defendants on account had that the accused guilt . . . would have shown of the evidence which was means of a procedure beyond question been established (Ibid.) just.” fair and substantially O’Bryan the lead found background, opinion of this light “[t]he and enactment of former section 4Vi]
general purpose [proposal 63), avoid the for such (165 necessity Cal. at “to p. namely, [unsat- plain” the new provision appellate results .... constitutional isfactory] By cause, evidence’ including ‘the entire are to examine empowered courts error, if has notwithstanding error judgment, and are to affirm the required ” italics.) (Id. original ‘in miscarriage justice.’ not resulted general “is a “miscarriage justice” phrase that the acknowledging While 64), the (165 Cal. at meaning” yet acquired precise one and has not as however, much, safely we think said. declared that opinion “[t]his at least the effect VI must be given Section 41/2of article of our constitution *12 law. error of the rule that from presumed of old abrogating prejudice the examine the evidence Where error is shown it is the of court to duty did in fact work whether the error did or not ascertain from such examination prima make out a case The mere fact of error does not any injury. facie clear that no could showing injury which must be overcome aby reversal (Id. 65.) have resulted.” at p. that, time, however, in made clear O’Bryan
At the same the lead opinion contexts, justice” in in a of might “miscarriage at least some an error result review the evidence. even when the from a of guilt apparent defendant’s administering in we of speak The this “When opinion explained regard: cases, in American of English system proce- criminal under the or ‘justice’ dure, whether an accused merely ascertaining we mean more than something the of or justice question guilt is or is not It is an essential of that guilty. part in which the innocence shall be determined by orderly legal procedure, if substantial to defendants shall be For rights belonging respected. example, with a the charged felony a court should undertake to to a defendant deny evidence render a judgment of trial and after a of the right by jury, hearing conviction, it that should be set aside judgment of cannot be doubted such Or, defendant, if a guilt. even there had been the clearest of though proof trial and brought after should be having again been once acquitted, convicted, he had once of his that been disregard plea thereupon he in fact no guilty, it would be that because was jeopardy, hardly suggested 65-66.) (165 had ‘miscarriage justice’ occurred.” Cal. Nonetheless, not follow the was careful that “it does opinion to emphasize a necessarily requires that invasion of even a every constitutional right court, the well that the ‘entire cause reversal. It be after examining of, evidence,’ is of the the opinion complained that error including character, mere has not resulted a The miscarriage justice. whatever its error is assignment fact that the based a constitution upon provision The test is the opinion is not conclusive. final court appellate upon (165 66.) result of the error.” Cal. itself, O’Bryan former section to the of the
Finally, applying 41/2 facts case the lead concluded that court’s error opinion despite trial constitutional permitting jury defendant’s statements to the be considered grand conclusion, jury, judgment should reaching be affirmed. whole, the court reviewed the evidence all facts finding in the had grand disclosed defendant’s statements been established at jury other, that, trial admissible held under such evidence. court circum- stances, “we should certainly justified forming expressing that the opinion admission of this resulted in a testimony miscarriage had (165 justice.” Cal. at p.
The seminal in O’Bryan, supra, decision signifi Cal. holds First, cance for the present O’Bryan case made it number respects. that the clear California constitutional provision governing reversible error— VI, now article section 13—applies constitutional as well as to noncon Second, O’Bryan stitutional errors. also explained although, as a general rule, the determination whether an error “miscarriage has resulted within justice” meaning constitutional will provision depend upon *13 an appellate court’s evaluation in of the effect of the light error of trial, in evidence at some contexts—for of a erroneous denial example, defendant’s right to jury trial—an error result in may miscarriage a of reversal, justice, and require regardless of the strength the evidence received at properly trial. General,
The Attorney while O’Bryan, acknowledging passage 65-66, errors, 165 Cal. at pages that indicates that some like the denial trial, jury a may result in a miscarriage of justice regard without to the trial, state of the evidence introduced at contends that this subsequent court’s Watson, in People decision supra, 46 Cal.2d vitiated this aspect O’Bryan analysis by “crystallizing” the various definitions of the phrase “miscarriage of justice” into what generally is referred to as “reasonable probability” test.
We believe this portion Attorney General’s a argument rests upon misreading of the Watson, Watson In decision. this court reviewed summarized general principles the constitutional harmless- relating to error provision established in the O’Bryan We that explained decision. then O’Bryan—decisions involved following generally a number of decisions evidence in determine error and a need to evaluate the order to ordinary lan- miscarriage justice varying whether a had resulted—had employed determining standard or test for general to articulate guage attempting error, trial, viewed of the evidence introduced at would light when such under justice to amount to a the constitu- enough miscarriage be serious the court noted Watson that several regard, tional this provision. a test negative formulating (stating, decisions had resorted to double if “is of the that reversal would be court required appellate example, had the error that ‘a different result would not have been improbable opinion that, in .'or ‘if it the absence of the error occurred’ . . cannot said of, ”), a different verdict have . . .’ improbable would been complained alternative, had affirmative for- linguistic whereas other decisions utilized (such mulations as “that ‘it must to the satisfaction of affirmatively appear this injured by court. . . that the accused well have been substantially the error of which he reversal . . . that there should be no complains’ [or] where ‘it have appears that a different verdict would not otherwise been ”). (See omitted.) probable’ 46 Cal.2d at citations In order to eliminate the this wrought by variety confusion tests, differently single worded this to articulate a proceeded court Watson context, standard to be that “it that the test employed holding appears generally applicable may ‘miscarriage justice’ be stated as follows: That should be declared when the court ‘after an examination of the entire only cause, evidence,’ including reasonably is of the is ‘opinion’ that a probable result more favorable to the would have been appealing party Watson, reached in the (People absence of error.” 46 Cal.2d at This, course, familiar standard that “reasonably probable” represents the harmless-error test under current Califor generally applicable nia law.
In setting forth this statement of the harmless “generally applicable” error test, however, the Watson decision did not to overrule or purport disapprove *14 O’Bryan of the portion decision that with to some recognizing regard errors—such as a denial of the right jury “miscarriage justice” to trial—a of itself, would result the denial right from without to the state of regard Indeed, decision, the evidence. in Watson de- restating principles case, clared O’Bryan by recognized O’Bryan that under specifically “certain fundamental are rights ... to the defendant which guaranteed upon evidence, he can insist regardless of state of the such as the to a right jury trial and the to right under the of once . . . .” protection plea jeopardy Watson, (People 46 Nothing Cal.2d at the Watson decision suggests court “reasonable contemplated probability” that its test should or would apply this limited of error. category
493 818, Watson, Furthermore, Cal.2d Califor the 37 since 46 years supra, O’Bryan, have follow the latter of aspect nia cases continued to nature, contexts, errors, 55, in a of that certain their finding by Cal. number meaning within the of the California “miscarriage justice” result strength reversal without to the regard harmless-error provision requiring (See, People Douglas the evidence received trial. e.g., 430, 884, P.2d right 436-439 denial Cal.Rptr. [improper [38 964] 86, counsel]; (1983) People Cal.3d 104-105 separate Mroczko 52, counsel with Cal.Rptr. representation by poten P.2d [improper 835] interest]; tial conflict v. Holmes Cal.2d Cal.Rptr. 871, trial]; right 353 P.2d waiver of jury [ineffectual 583] (1978) 22 Wheeler Cal.3d 583 P.2d 748] & selection of See 6 Witkin Cal. jury]. generally Epstein, [discrimination Error, 3303-3311, (2d 1989) Criminal Law ed. Reversible 4084- §§ demonstrate, 4095.) As these decisions the United just as States Supreme recognized Court in its recent Fulminante decision that certain federal constitutional representing errors “structural defects the constitution of the (Fulminante, trial mechanism” are not amenable analysis to harmless error 302, 331-332, supra, 499 U.S. 111 S.Ct. by J.)), (opn. Rehnquist, C. under the 1265] California constitutional harm less-error some errors provision similarly are not susceptible to “ordi nary” or “generally applicable” analysis—i.e., harmless-error the Watson probable” “reasonably standard—and reversal of the judgment require notwithstanding the strength the evidence contained the record in a particular case. whether,
Accordingly, issue presented this case is under law, California the admission at trial a coerced confession is kind of error, trial, such as the denial aof jury that results in a “miscarriage VI, justice” under article section regard without to the nature and strength trial, whether, of the additional evidence presented at like most trial (including errors errors), constitutional question whether erro neous admission such VI, a confession warrants reversal under article section properly must determined regard with due to all of the evidence received at trial.
V that, matter, Defendant argues as an historical coerced confessions always have been considered California cases as the type of error that is *15 subject General, to a however, rule. The reversible-per-se Attorney chal- lenges defendant’s reading past California case law.
494 decisions—i.e.,
A review of the relevant California those rendered since 4V2 until 191110—revealsthat from the enactment of former section 1911 1950’s, the late each of the California decisions that addressed question confession, whether a trial court had erred a coerced admitting with instructing jury to the determination of the voluntariness of regard confession, assessed the effect such error prejudicial potential light trial, all the evidence that had been introduced at and did not hold or suggest confession, that the erroneous admission or consideration of such a improper itself, amounted under automatically justice” to a former “miscarriage 615, 623-624, (See, 4V2. People (1951) section v. Stroble 36 Cal.2d 631 e.g., 870, 330]; (1944) P.2d 24 People v. Cal.2d 877-878 P.2d [226 [151 Gonzales Jones, 251]; 601, 604; People supra, v. 24 22 People Rogers, supra, Cal.2d v. 787, 803-807; 555, People (1924) Cal.2d v. Ferdinand 194 Cal. 565-570 341]; 917, People (1944) P. v. Sourisseau 62 930-931 Cal.App.2d [229 [145 219, 916]; P.2d People (1933) v. Mellus 134 220-226 P.2d Cal.App. [25 237]; 106, People (1932) 855]; Day v. 125 110-111 P.2d Cal.App. [13 262, (1931) 313]; People Dye v. People 119 271-273 P.2d v. Cal.App. [6 19, (1924) Reed 361].) 68 20 P. Cal.App. [228 1950’s, however, in the Beginning late California a differ decisions took and, thereafter, ent view of the matter a host of cases from this court declared that whenever consistently a coerced confession had been admitted trial, in a criminal reversal of the regard conviction was without required the strength (See, of the other evidence People revealed the record. e.g., Berve, 286, 290; Trout, 576, supra, v. 51 Cal.2d People supra, v. 54 Cal.2d 585; 629, 909, People (1961) v. Brommel 56 Cal.2d 364 Cal.Rptr. [15 845]; 466, P.2d People (1964) v. Matteson 61 Cal.2d 469-470 Cal.Rptr. [39 1, 161]; 338, 393 P.2d People (1965) v. Dorado 62 Cal.2d 356-357 [42 169, 361]; 716, Cal.Rptr. 398 P.2d People (1965) v. Schader 62 Cal.2d 193, 665]; 728-731 Cal.Rptr. People (1965) 401 P.2d Sears 62 Cal.2d 737, 330, 938]; Cal.Rptr. People 401 P.2d v. Fioritto 714, 625]; Cal.2d 441 P.2d Cal.Rptr. People v. Randall 114]; Cal.3d People McClary, 464 P.2d 218, 230; Jimenez, 20 Cal.3d 605- 606.) The court’s statement Matteson of the applicable legal rule is typical line “In of cases: cases involving involuntary statements of the accused ... evidence weight other is not guilt considered. 10Although defendant upon cites and relies a number of California cases that predate the VI, (see, enactment of e.g., article section AVi Loper, supra, Cal. 1910]), such cases—decided prior [decided to the enactment of the California constitu provision tional presently governing light reversible error—shed no upon question whether the involuntary admission of an “miscarriage confession amounts to a justice” VI, under article section so compel as to reversal without regard to the other evidence received at trial. *16 most tongue from defendant’s own are
Incriminating persuasive statements a conviction cannot guilt, they play securing evidence of Ms and the part Matteson, (People supra, 61 Cal.2d at be determined.” v. General, California body Attorney although acknowledging law set contends that the reversible-
case
forth
preceding paragraph,
rule
did not emanate
embodied
these numerous California decisions
per-se
standard for coerced
from
application
independent, California
confessions,
simply
application
but instead
reflected the Califorma courts’
standard,
a
with the
error
consistent
reversible-per-se
prejudicial
federal
by
prior
the United States
Court
a number of its
analysis applied
Supreme
relies,
claim,
tMs
General
advancing
Attorney
part, upon
decisions.
decisions,
a
contained in
recent
passage
suggesting
a footnote
one of our
ex-
that
California
rule
was
reversible-per-se
for confessions
“never
247,
(People Boyer (1989)
divorced from federal law.”
v.
48 Cal.3d
pressly
279-280,
96,
610].)
fn.
Based
tMs
P.2d
upon
[256
that
California
rule
been
premise—i.e.,
always has
reversible-per-se
linked
inextricably
to federal law—the
General
now
Attorney
maintains that
that the Fulminante decision has modified the
federal
governing
prejudicial-
confessions,
error standard
to coerced
it
that the
applicable
follows
Califor-
contends,
nia
rule no longer is viable. Defendant
con-
reversible-per-se
trast, that the prior Califorma cases
a California
error
embody
prejudicial
state,
federal,
rule that was based
rather than
law.
upon
a
Upon close review of the California cases in
that
question, we conclude
authorities,11
although the decisions consistently cited both
and federal
state
and occasionally included
language
that
rule
suggesting
reversible-per-se
Berve,
286,
People
cases,
11In
v.
51 Cal.2d
the initial decision in this line of
passage (id.
290)
relevant
at p.
reads:
use
“The
prosecution
confessions in a criminal
force, fear,
promise
obtained
immunity
or reward
a
process
constitutes
denial of due
under
federal and state
requiring
Constitutions
although
reversal
convictions
other
(Brown
evidence
be consistent
guilt.
with
v.
U.S.
S.Ct.
Mississippi, 297
[56
682];
Tennessee,
80 L.Ed.
1192];
The
in People v.
analysis
supra, 62 Cal.2d
illus
Schader,
trates the
In
after
that a
that was
point.
concluding
confession
admitted at trial should have been excluded because it had
been obtained
counsel,
violation of the
right
defendant’s
the court observed: “Once we
have determined that an admission of an incriminating statement constitutes
error, we must decide whether or not the
prejudice
error caused
to defendant
VI,
(See
under article
section
the Constitution.
v. Watson
4V.2
243].)
Cal.2d
P.2d
The statements involved in the
case, however,
instant
are
to murder in the
degree
first
under the
confessions
felony murder rule
and
the first
robbery
degree
[citation]
[citations]
we have held that the erroneous admission
is prejudicial per se
of confession
compels reversal. [Citing seven California decisions without
therefore
whether their
were
specifying
federal
holdings
premised upon
or state law.]”
728-729,
(Schader, supra,
added.)
at pp.
italics
the Schader court
Although
thereafter noted the
United
then-applicable
States Supreme Court decisions
that “the
holding
introduction of an invol-
untary confession automatically
(62
reversal”
requires
Cal.2d at p.
added),
italics
the Schader court went on to hold that automatic reversal was
under the California
required
rule
prejudicial-error
illegally
whenever an
evidence,
obtained
was admitted
regardless
into
whether the con-
confession
was “voluntary” or
“involuntary.”
Schader court explained its
fession
conclusion as follows: “In
determining
effect of the
prejudicial
illegally
obtained confession at trial we are not concerned with the nature of the error
that caused the
The reason
illegality.
confession should not have
been introduced into evidence is no longer material. As to its impact upon
effect,
and the
jury
prejudicial
confession obtained
violation of
defendant’s
right
counsel cannot be distinguished from the confession
obtained
[j[]
violation of
right
defendant’s
to be free of
In
coercion.
we
inquiry
cannot logically distinguish between the different bases for the
exclusion of the confession.
. . . After holding that the
should
confession
admitted,
not have been
we can only be concerned with the effect of the
deliberation,
confession
upon
jury’s
regardless of the
of error
type
12Thus,
Brommel,
629, supra, the court stated the applicable
confessions,
reversible-per-se
following
rule
“Apart
against
terms:
from his
the case
circumstantial,
wholly
defendant was
but
strong
however
the case otherwise the admission of
reversal,
41/2,
involuntary
VI,
confessions
compels a
and section
article
of the Constitution
can under no
judgment.”
circumstances
save the
reversal is
the effect of the confession that
involved. It is because of
[i.e.,
is “voluntary”
whether
confession
. .
either case
compelled. [ft].
a kind of
bombshell
evidentiary
“involuntary”]
operates
(Id.
729-731.)
which shatters
defense.”
*18
Thus, although
analogous
the
court drew
federal decisions
upon
Schader
then-existing
in
beyond
for
the court’s
Schader went
the
support,
holding
in
to
that were
authority
federal
a
rule
confessions
applying reversible-per-se
obtained,
in
but were inadmissible because
involuntary
example,
(see
the
of the
Massiah or
decisions
precepts
violation
Escobedo
Massiah
246,
1199];
(1964)
v. United States
In the in subsequent decision Jacobson Cal.2d 555], 405 P.2d Cal.Rptr. this court reconfirmed explicitly the state independent basis rule general reversible-per-se by applied the California decisions of The period. question presented Jacobson when, whether rule should reversible-per-se be two applied although confessions of the defendant obtained of his had right violation counsel trial, confessions, been introduced valid eight obtained from defendant confessions, to the invalid and prior confessions thus untainted by those also had been introduced at trial had all of disclosed the material facts contained the invalid confessions. issue, analyzing the court explained Jacobson that two distinct
reasons had been advanced support a application of reversible- rule to per-se invalidly obtained confessions. “One view holds that when a confession is obtained methods which by violate law rights, constitutional enforcement officials suffer must of reversal if a penalty such confession result, is view, used This trial. harsh contend the advocates of this means which only illegal police can activity successfully checked. The United Supreme States Court has expressed this in exercising view its super- visory power over the justice administration criminal in the courts. federal (63 329-330, Cal.2d added.) [Citation.]” at pp. italics however, Jacobson court continued: California, “In we have taken view, somewhat while recognizing the beneficial effect that results different when police investigations are conducted within the constitutional frame- work. This court trial, has been more concerned with the fairness of we are opinion inquire prejudicial that ‘courts cannot into nature illegally the introduction obtained reasons stated in confession for v. Parham 384 P.2d invariably persuasive “Almost ... will constitute evi- 1001]: guilt, dence extremely and it is therefore difficult to determine usually what part played securing conviction. These [Citation omitted.] justify treating considerations confessions as class them- involuntary selves and inquire whether rare cases their admission in refusing ’ (63 evidence had no on the result.” Cal.2d at bearing [Citation.]” added.) italics
Because the California rule reversible-per-se applicable confessions *19 was premised significant role that the of a upon introduction defendant’s trial, confession was to in in play criminal court presumed Jacobson case, concluded in the unusual factual that setting by involv presented confessions, valid ing eight and invalid refusal two “a to into the inquire if impact, of the on the would in any, confession verdict result complete VI, A1 (63 abandonment of article section A of the California Constitution.” 330.) Cal.2d at p. reviewing After of the contents confessions determining that two improperly obtained statements were . . . “[t]he cumulative,” merely the court concluded: “It is not re plausible, having record, viewed this to conclude that 10 were sufficiently statements more than and that the persuasive only eight elimination of two would have altered (Id. basis, the outcome.” at On this determined ultimately court that the error in admitting the confessions did warrant reversal under VI, AlA, article section California Constitution.
The Jacobson is significant decision in in a number our respects below, evaluation of the issue before us. As we shall presently discuss in opinion Jacobson not only provides a clear of the rationale explanation underlying California courts’ of a rule application reversible-per-se to confessions, erroneously admitted but at the same time reveals flaw telling however, in rationale. For present purposes, Jacobson opinion is that, in instructive demonstrating rather at least clearly by revers- rule ible-per-se applied by California to decisions admitted improperly confessions represented an under application state law the pertinent state constitutional prejudicial-error provision, rather than simply application law. federal matter,
As a jurisprudential is not find that the California surprising time, Schader, Jacobson, decisions of that such 62 Cal.2d law, law, Cal.2d relied state upon solely and not federal upon trial, whether determining an error committed even an error of federal constitutional warranted reversal of a state magnitude, judgment. court Although numerous federal decisions had held that the admission previously se, of an involuntary reversible to the United States per prior Court’s 1967 decision Supreme Chapman California, supra, 386 U.S. 18, the federal high court never had held that were state courts compelled, Constitution, virtue of the federal general, apply harmless-error federal standard in whether a federal evaluating constitutional error that occurred in a state trial reversal required of the conviction. As Justice Harlan’s dissent- clear, ing opinion Chapman makes in Chapman the majority opinion broke new ground adopting general, federal constitutional harmless- (Id. error standard in that 723-726].) case. at pp. 46-51 L.Ed.2d at pp. that, Justice Harlan’s dissent Chapman also Chapman, reveals prior California courts regularly applied California prejudicial-error standard prescribed the state Constitution to other of federal types constitutional error occurring (Id. California trials. L.Ed.2d at pp. 725-727]; see also Bostick 823-827 [44 529].) 402 P.2d
Accordingly, of the light specific language California cases 1960’s, decided in the and the then-prevailing understanding of the reach of *20 state prejudicial-error principles, we determine it was as a matter of state law that the California decisions question characterized as reversible the per se erroneous receipt evidence (See of a People confession. also v. Powell 32, (1967) 817, 56 Cal.Rptr. [59 429 P.2d the 137] [“[S]ince in Chapman decision 18, (1967) supra, 386 U.S. 23 [17 California 705, 710], our inquiry may [i.e., not be limited to that consideration the strength of the admissible evidence of defendant’s when guilt] a federal issue, constitutional error is VI, and we may longer no on article rely section 13 of our Constitution to judgment save a infected with such an error.”].)
VI
The
however,
Attorney General argues,
that even if past California
(at
decisions
least those rendered since mid-1960’s)
applied a reversible-
rule
per-se
law,
confessions as a matter of state
the Truth-in-Evidence
provision
Const., art,
(Cal.
I, 28,
Proposition 8
(d)),
subd.
enacted in
§
1982, mandates application of
law,
federal rather than state
insofar as state
law now imposes a more stringent test of prejudicial error than that embod
ied in
Fulminante,
federal law under
supra, 499
U.S. 279.
of this
support
argument, the Attorney General relies
this
upon
court’s decisions in People
May (1988)
44
Cal.3d 309
Cal.Rptr.
748 P.2d
307]
(1989)
Markham
VII we have Although determined that the rule reversible-per-se by a applied substantial number of California decisions in the 1960’s to the erroneous law, admission confessions was grounded state and that this state prejudicial-error rule has not been abrogated the Truth-in-Evidence pro vision of these Proposition conclusions are not the issue dispositive of *21 follows, determinations, Even before us. though the from that foregoing Fulminante, the United States Supreme Court’s recent in decision not, force, U.S. does its own of modify existing the California rule requiring automatic reversal of a in upon conviction based proceedings received, which a confession has erroneously been Fulminante decision does us with provide an appropriate to reconsider the opportunity validity of as reversible-per-se rule a matter of California law. we have Although, as seen, the past California decisions a rule of automatic as a applied reversal law, matter of state those California decisions did not such a state rule adopt in rule, of face a federal contrary harmless error but rather embraced that rule on the that such rule understanding a with the consistent governing federal rule. that Now the federal court has established high 13The Truth-in-Evidence provision part; “Except reads relevant provided by in as statute by hereafter enacted a Legislature, vote two-thirds ... relevant evidence shall not be Const., any I, excluded in proceeding (Cal. criminal (d).) . . . .” art. subd. § by compelled reversal is not rule automatic in that a of Fulminante whether such Constitution, reconsider to we consider it appropriate federal Constitution. under the state reversal is mandated automatic Constitution, above, federal unlike its the California have discussed As we of the issue addresses directly contains an explicit provision counterpart, this state for the electorate of added reversible error—a section any rule that had treated abrogating of the preexisting specific purpose form, reads the provision In its current reversible se. per error as substantial cause, aside, in on any ... shall be set judgment in “No part: pertinent unless, evidence, . . . improper rejection admission or ground... of of evidence, cause, the court including the entire an examination of after in a has resulted of that the error complained be of the opinion shall face, VI, Const., language On its (Cal. of art. miscarriage justice.” § involuntary an admission of to the fully improper would appear apply evidence, and type admission of other as to the improper confession that, set aside should be judgment whether a determining to require evidence, all of examine court such an admission of improper because of the error resulted whether received at trial order to ascertain the evidence seen, Because, clear from it has been as we have miscarriage justice. reversible-error provision the time of its enactment that the California (see People v. errors constitutional as well as to nonconstitutional applies 66), background O’Bryan, supra, language 165 Cal. a rule do not appear support state constitutional applicable provision among (uniquely, of an involuntary treats admission improper errors) as reversible se. evidentiary per course, an in some instances error O’Bryan recognized,
Of as the decision the California within the “miscarriage justice” meaning result trial, without to the of the evidence provision regard strength presented because, “[wjhen of adminis- O’Bryan, as the court we explained speak cases, or American tering English system criminal under the ‘justice’ we whether an merely ascertaining mean more than procedure, something accused is or is not It is an essential that the guilty. justice question part orderly legal procedure, or innocence shall be determined guilt which the to defendants shall be rights belonging respected.” substantial *22 that, (165 added.) Cal. at italics But the kinds of errors p. regardless evidence, in they operate the result because may “miscarriage justice” legal a criminal defendant the deny constitutionally required “orderly proce- words, the (or, trial)—for dure” in the denial of example, other fair (see, judge e.g., defendant’s to a trial or to an trial right jury impartial 607])—all involve funda- Cal. 626-627 P. Mahoney to those to analogous mental defects” in the judicial proceedings, “structural which the in United States Court referred its Fulminante decision Supreme 331-332, (Fulminante, supra, 499 U.S. L.Ed.2d 1246, 1265]), S.Ct. rather the than admission of a item of improper particular evidence. Fulminante,
As Chief Justice in in to funda Rehnquist explained contrast mechanism, mental in the “structural defects of the trial which constitution (499 defy analysis by p. ‘harmless-error’ standards” U.S. at 309 331-332, L.Ed.2d at the 1265]), S.Ct. admission of an pp. p. improper is, confession error which involuntary is a “trial error”—that type “[an] occurred the during of the to the and which presentation jury, case therefore be in the evidence quantitatively assessed context of other pre sented in order to determine whether [prejudicial its admission was (Id. at pp. 307-308 S.Ct. at p. harmless].” seen, 1264].) As we have California reversible-error its provision, terms, that the directs nature such an error prejudicial evidentiary cause, determined “after an examination of the entire the evi including Const., VI, (Cal. 13.) dence.” art. § above,
As discussed
than
after
for more
1911 of
years
adoption
the California
provision,
constitutional reversible-error
California courts
applied ordinary
prejudicial-error analysis
determining whether
admis-
sion of
trial
involuntary confession
criminal
warranted reversal of the
ante,
(See,
judgment.
493-494.)14
pp.
only
It was
the late 1950’s that
California decisions
hold
began to
that the erroneous admission of an
ante,
(See,
involuntary
494-495.)
confession was reversible per se.
their
explaining
basis for
of a
rule in
application
reversible-per-se
context,
the California decisions of the 1950’s and
did
1960’s
suggest that the erroneous admission of a confession constituted a structural
defect in
trial
proceedings
defendant
deprived
“orderly
Instead,
legal
fair
process” constituting a
trial.
the decisions reasoned that a
rule of automatic reversal
justified
light
of the
role a
significant
defendant’s confession “almost
invariably”
criminal trial
plays
Thus,
seen,
decision,
which it is introduced.
as we have
Jacobson
319, in
explaining the differences between the
offered
rationales
federal and California courts
the adoption
of a reversible-per-se
confessions,
rule with
regard
admitted
improperly
observed that the
suggestion
14The
opinion
in the dissenting
of Justice
always
Mosk
California law
has
treated the improper admission
involuntary
of an
as
undermining
fairness of a
trial, and
requiring
regard
strength
reversal without
prosecution’s
other
evidence,
is inconsistent with the treatment of the prejudicial
question
error
in the numerous
ante,
Supreme
(See,
Court and
Appeal
Court of
cases decided
between 1911
1958.
*23
“
inquire
cannot
that
‘courts
upon
proposition
decisions rested
California
con-
obtained
illegally
of an
the introduction
nature of
the prejudicial
into
378, 385
(1963) 60 Cal.2d
Parham
in
stated
the reasons
fession for
will
...
invariably
“Almost
reversal and purpose sight principal lost question California decisions provision enactment of California’s constitutional of the 1911 significance recognition the matter of reversible error. addressing explicitly confessions, class,” will persuasive invariably” provide “as a “[a]lmost Parham, Cal.2d supra, 60 (People evidence of a defendant’s guilt evidentiary kind “as a 385), and that such confessions often operate Schader, 62 Cal.2d (People which shatters defense” bombshell 716, a confession 731), that the admission of improper means simply categories trial than are other much more to affect the outcome of a likely evidence, the traditional under and thus is much more to be likely prejudicial But, a confes- admission of although improper harmless-error standard. not, cases, does likely prejudicial many consequence sion is to be view, automatically rule that judicial of a state-law justify adoption our as requiring treats all admitted confessions monolithically improperly conviction; revers- reversal of the defendant’s the California constitutional eliminating just provision purpose ible-error adopted specific such a to reversible error.15 prophylactic approach Jacobson,
Indeed, although this court’s 1965 decision reversible- general did not modify purport question confessions, Jacobson rule reasoning holding per-se applicable 15Although suggests that the rule of automatic dissenting opinion of Justice Mosk applied by involuntary reversal to the admission of an past improper California cases from, from, distinguishable upon confession is and was a rationale different based *24 in fact reveals that the rule reversible-per-se is basically with incompatible precepts California constitutional provision addresses the Jacobson, matter of reversible error. In the court noted that the initially cases that had adopted rule had reversible-per-se reasoned that the consider (1) ations that a confession will invariably . . . constitute per “‘[a]lmost suasive evidence of guilt, [(2)] it is usually extremely difficult to determine what part conviction[,] played securing [the confession] . . . justify treating involuntary confessions as a class themselves and to refusing whether in inquire rare cases their admission evidence had no (Id. bearing on result.’ The court then went [Citation].” on to “Nevertheless, declare: on this record we do have a ‘rare case’ in which a inquire impact, into the any, on the verdict would refusal if confession VI, result in complete abandonment 4%, article section California (Ibid., Constitution.” added.) italics Because the invalidly two obtained confessions that erroneously had been admitted in Jacobson were simply cumulative of the eight valid confessions that also had been introduced at trial, the Jacobson concluded it was not plausible to court that the suggest exclusion of the invalid confessions would have altered the outcome case, and, basis, on that held that reversal was not warranted under former VI, article section 4VI Jacobson’s reasoning this were holding regard followed v. Cotter shortly thereafter 63 Cal.2d 398 [46 862], Quicke, (See 405 P.2d supra, 71 Cal.2d also 502, 516-518 Jacobson].)16 [applying Schader, reversible-per-se applied rule progeny voluntary, and its admitted, but improperly confessions, nothing there is any in Schader or other decision of this court that supports suggested past distinction. This court’s decisions do not indicate that there were two reversible-per-se confessions, distinct applied rules improperly admitted depending upon Rather, whether the confessions were involuntary or voluntary. as the passage ante, from quoted (see, clear, Schader above 496-497) makes these decisions explain that the reversible-per-se rule was applied broadly to improperly all admitted confes- sions, because the upon rule was based exceptional evidentiary importance of confessions as a class and the recognition that prejudicial jury effect on a regardless was the same
the reason the confession should have been excluded.
The dissenting opinion of Justice
additionally
Mosk
suggests throughout
analysis
its
that a
confession is the
equivalent
view,
substantial
extrajudicial
of “an
plea
guilty.”
In our
characterization of a
plainly
confession is
entry
untenable. Unlike the
guilty plea,
of a
admission of
extrajudicial
an
confession does not withdraw
guilt
the issue of
or innocence
from the trier of
trial,
fact. When evidence of a confession is admitted at
a defendant remains
free
challenge
either to
confession,
the evidence that indicates he made such a
rely upon
or to
the circumstances surrounding the
confession and
other evidence to demonstrate that the
confession is not true or at least
prove
Thus,
does not
prosecution
all that the
suggests it does.
it is inaccurate to characterize a confession as
extrajudicial
plea
guilty.
16OneCourt of Appeal
suggested
decision has
multiple-confession
that the
exception to the
rule,
Jacobson,
per
reversible
se
established in
applies only
erroneously
when the
admit
that,
ted confession is a voluntary
inadmissible
example,
because of a
(Miranda
Miranda
violation
As rule appli- reversible-per-se general of the viability the continued question rule that confessions, general to exception an established simply to but cable in to record order entire trial review the court to appellate permitting when confession admitted erroneously effect of an the prejudicial determine reasoning at trial. had been received invalid confessions as well as valid however, decision, to cannot be confined logically the Jacobson underlying scenario the multiple-confession setting. Although the multiple-confession in which it is possible of an instance examples the clearest one of provides confession admitted erroneously determine that an court to for an appellate trial, are difficult not examples the other did affect the outcome of imagine. might confession properly an involuntary
The erroneous admission of harmless, defendant was (1) apprehended when the for example, found crime, there are (2) when in the committing the course of the police numerous, testimony the crime whose reliable eyewitnesses disinterested evidence, in a (3) wealth of uncontroverted physical is confirmed aby confession, introduced, in addition to the in which case the prosecution Fulminante, 499 U.S. (cf. supra, of the crime commission videotape 279, 302, 333-334, (conc. 111 S.Ct. 1266-1267] in cases a although some J.)). suggest, As these opn. by Kennedy, examples in case be the centerpiece prosecution’s defendant’s confession will conviction, appellate in for an possible of a instances it will be support many reasonable probability court to determine with confidence that there is no the result. We that the would have affected exclusion of confession cases, in in involved setting believe that Jacobson, such the multiple-confession if the confession on any, “a refusal to into the inquire impact, VI, 13], the verdict abandonment of article would result complete [section Jacobson, Cal.2d (People of the California Constitution.” however, if to determine possible Defendant that even it is argues, involuntary case that the of an erroneous admission particular 974]), admitted. truly involuntary and when a confession has been inapplicable 10 A.L.R.3d 104].) reaching (See Cal.Rptr. People Cal.App.3d v. Hinds 239-241 [201 conclusion, however, specific to consider either the adequately the court in Hinds failed seen, upon a determination that holding—which, of the Jacobson as we have rested rationale VI, 41/2,when an inadmissible confession prejudice there was no under former article section Jacobson, (see supra, 63 Cal.2d merely People cumulative of admissible confessions decision, 331)—or explained that the holding reasoning which Schader confessions, voluntary both reversible-per-se applied equally erroneously rule to all admitted Schader, 729-731.) (See involuntary. recognized exception suggested multiple-confession This court never has confessions, have involuntary Appeal and other Court of decisions inapplicable Jacobson is (See, involuntary. e.g., applied exception erroneously admitted confession was when 249, 266, 497].) Cal.App.3d v. Nicholas 268-272 [169 verdict, did not affect admission of such a confession at trial nonetheless should be viewed as a “miscarriage justice” warranting VI, automatic reversal under article light egregious section nature official misconduct involved such a confession. eliciting Defendant maintains that abandonment of a rule reversible-per-se context would represent long-standing retreat from this state’s condemna- tion of such practices. improper *26 First,
We believe defendant’s argument suffers from two basic flaws. at the outset of this confes- explained opinion, category “involuntary circumstances, sions” encompasses ranging broad from con- spectrum fessions elicited the much by violence or threats of violence to more in common situation which a confession obtained as a result of an is in improper promise of benefit or all such cases the law leniency. Although enforcement in conduct is unconstitutional and renders result- question trial, ing statement inadmissible a realistic the official from perspective in misconduct involved an obtaining “involuntary” or “coerced” confession (or is no frequently more even less than that involved egregious egregious) in obtaining evidence means of unreasonable searches or seizures or other by constitutional violations—violations that have viewed as not been requiring the automatic reversal of in which any conviction based upon proceedings the fruit (See, of the constitutional received. transgression e.g., has been Parham, 60 Cal.2d evidence unlaw- [physical Furthermore, fully force].) seized from defendant use of by category of is, definition, confessions with which we involuntary by are here concerned and, limited to those confessions that a trial court has found are on voluntary basis, admitted has into evidence. Although question prejudice arises, course, when an that the only appellate court holds subsequently voluntariness, trial in court erred its determination of most instances the confessions at issue are to fall close to the line likely dividing between voluntary confessions. involuntary involving egregious cases most conduct, police is will likely confessions either not be offered into evidence or will excluded the trial court.
Second, seen, that, the Jacobson decision makes it clear as we also have unlike the former automatic-reversal rule that was justified believed federal conduct, aas means of necessary deterring illegal police the California never (People reversible-per-se rule was grounded on a deterrence rationale. Jacobson, Indeed, supra, 63 Cal.2d 329-330.) this court’s seminal decision in O’Bryan, supra, 165 Cal. demonstrates that point O’Bryan, As noted quite clearly. the court previously, although finding that the defendant’s statements before the had been grand jury erroneously (because admitted at his trial the statements were not “voluntary,” having self-incrimina- against defendant’s privilege elicited violation been even author- reversal tion), required—or that automatic did not conclude deter such order to reversible-error provision ized—under the California Instead, the court the future. conduct law enforcement improper in the context of admitted statements O’Bryan examined the improperly basis, and, error that the constitutional concluded entire trial record on that warrant reversal. and did not was not prejudicial line California decisions is further demonstrated point (as distinguished admission involuntary that the introduction of holding se, flagrant matter how confession) not reversible no per from a admission, ordinary subject but rather is obtaining misconduct (See, Hillery e.g., People harmless-error analysis. 382].) justified reversal P.2d Were automatic deterring police coercive
under the California Constitution as a means *27 conduct, to the introduction of a rule would reversible-per-se logically apply of an elicited admission as well as to introduction unconstitutionally that, Cal it is clear under established involuntary Accordingly, confession. a deterrence ifornia a rule is not on principles, reversible-per-se justified Stroble, 615, 617-618.) (See 36 Cal.2d rationale. also is Defendant further that a rule automatic reversal suggests requiring confessions, in the distinguished warranted case of coerced or involuntary evidence, from other of the categories unreliability of inadmissible because established, however, of such It well that a confession confessions. is now be classified as an confession without properly may involuntary or coerced regard (see, to its v. Ditson 57 Cal.2d reliability e.g., 714]), 437-439 P.2d and in instances there Cal.Rptr. many may confession, although be evidence that that such a corroborating demonstrates means, inadmissible because obtained unconstitutional fact reliable. by Furthermore, even numerous circumstances there though good reason to a obtained question reliability confession improperly (see, coercion police e.g., People Hogan course, 93]), P.2d defendant may, rely upon trial,
evidence of such the truth the confession at challenge coercion to court, and an of a appellate determining whether the erroneous admission reversal, confession warrants can and will take into account the circum- leading stances to the confession and the risk that the confession bemay unreliable, as it the entire examines record under a traditional prejudicial- error of an analysis. Accordingly, potential unreliability involuntary under confession does not rule support application reversible-per-se the California Constitution. defendant
Finally, argues that even if this court now is of the view that of a application rule to the reversible-per-se admission of coerced confes- VI, sions is not warranted under article section of the California Consti- tution, such rule nonetheless should be retained as a matter of stare decisis. that such a rule Emphasizing has been applied numerous California decisions for the past years, defendant that there argues is no reason to alter the rule at the present time. reasons,
For a number of
we do not believe that
of stare decisis
principles
First,
should be conclusive as to the issue at hand.
although
reversible-
per-se rule has been
applied California
virtually
decisions since
for
all
of the period
question—until the United States
Court’s 1991
Supreme
Fulminante,
decision in
supra,
Second, seen, as we have for the major portion period following California’s adoption of the constitutional reversible-error provision 1911—i.e., from until 1958—California decisions applied ordinary prejudicial-error mandated analysis by that provision to erroneous admis- sion of coerced confessions. In adopting a different state rule applying mid-1960’s, in the beginning late 1950’s and the California decisions did not *28 discuss the prior California case law or to how a rule attempt explain requiring automatic reversal for such error was with the compatible purpose of the state applicable constitutional provision.
Third, as we also have the in explained, 1965 decision (People Jacobson Jacobson, supra, 319), 63 Cal.2d in an the fashioning to revers- exception confessions, rule ible-per-se for cases involving multiple implicitly revealed the fundamental incompatibility of a rule with the reversible-per-se basic premise state governing constitutional The existence provision. rationale of the Jacobson long-standing the exception diminishes force of defendant’s stare decisis claim.
Finally, rule, we believe that retention of a the reversible-per-se solely on decisis, basis of stare would fail to give proper recognition to the important public policies the underlying reversible error set in provision forth Califor- nia’s that Constitution—policies remain of vital significance today. As proponents of the 1911 measure recognized, an broad rule of revers- overly ible error compels the reversal of rendered in judgments tried fairly criminal on the proceedings basis of errors that are unlikely to have affected outcome, eroding will have the detrimental effect public’s often Amends, (See to the justice system. confidence in the criminal Const, Proposed the Adoption of Cal. with Reasons for and Legis. Against
of the State Elec, Amend. 1911), Oct. Sen. No. Thereof Statewide Const. (Special received Birdsall.) & a defendant has statements Sens. When Boynton trial, that, some evidence although fair and review of the record reveals trial, overwhelming admitted also amount of there was improperly additional, admitted defendant’s establishing evidence properly clearly in in retrial guilt, reversal of will result either judgment superfluous or, in which the is a even foregone unfortunately, outcome conclusion more a new trial whose result is altered the loss of witnesses or essential event, In either confidence in testimony through passage of time. public the criminal is operation justice diminished. system Furthermore, rule, an overly mandating broad reversible-error reversal even circumstances which it is clear the error did not affect judgment, weaken or diminish the basic constitu- practice operate to tional right sought Traynor to be the rule. As then-Justice protected by Parham, 378, 386, this court in explained for rejecting adoption of a rule with to the erroneous reversible-per-se regard admission of evidence obtained as a result of an search or unconstitutional “A seizure: reversal for the admission obtained evidence without illegally regard for when prejudice there is evidence of compelling legally obtained guilt constitutes nothing more than a not for the officer’s penalty, illegal evidence, conduct securing solely but blunder prosecutor’s offering it and the trial court’s admitting require error it. To automatic reversal for such harmless error could not help generate pressure but to find that the [improper] police conduct was lawful after all thereby undermine constitutional standards of conduct avoid needless police retrial. An rule so exclusionary rigidly [Citations.] administered could view, thereby defeat itself.” our in the reasoning equally applies *29 confessions, context of coerced and affords an additional persuasive basis for us to to decline perpetuate of a rule in application reversible-per-se the present setting. above,
Accordingly, for the reasons discussed we overrule the line of California decisions that the holding erroneous of a coerced admission confession is reversible se under per California law.17 The effect prejudicial determined, law, of such error is to be of California under the purposes 17The following decisions are they overruled to the extent hold indicate that erroneous of a admission confession is per reversible se under law: People California v. Berve, 286, 290; Trout, 576, 585; supra, 51 Cal.2d People supra, v. 54 Cal.2d v. Brommel, 629, 634; Matteson, supra, 469-470; Cal.2d supra, 61 Cal.2d VI, in sec article test embodied reasonable-probability generally applicable Watson, (People California Constitution. tion than course, demanding is less the Watson standard 836.) Of because applica mandated standard harmless-beyond-a-reasonable-doubt Fulminante, (see authorities federal constitutional ble Arizona 1246, 1263-1266]; 302, 329-333, 111 S.Ct. L.Ed.2d U.S. 306-312 [113 710]), supra, 386 U.S. California, Chapman obtained trial has been admitted a California whenever a confession Constitution, the federal under inadmissible means that render confession the federal under must be determined effect of the confession the prejudicial standard.
VIII above, did not case in the present the Court of Appeal discussed As confes- involuntary effect of defendant’s evaluate the prejudicial to attempt trial, rather followed but evidence received light sion of the other admission that the erroneous concluding line California decisions prior murder- defendant’s reversal of automatic required of such a confession line decisions upon Because we have overruled related convictions. relied, this to remand we it appropriate consider Appeal which the Court of determine the question that court to Appeal permit matter to the Court If of Appeal herein. the Court under the established principles prejudice record, determines, the admission the entire from its evaluation of reversal, ad- it should proceed does not compel defendant’s confession on this appeal. claims of error raised dress additional IX our decision as to the nature or misunderstanding scope
To avoid any
case,
few
remarks.
concluding
this
we add a
brief
California
suggest
should be misinterpreted
Nothing
opinion
suspect
a confession from
law
or tolerates the coercion of
permits
that persons
clearly provides
criminal case. The California Constitution
themselves”
against
cause to be a witness
not “be
a criminal
compelled
Const.,
I,
law enforcement
(Cal.
15),
and coercive conduct by
art.
§
is
intolerable
unquestionably
in an
involuntary
officer that results
unconstitutional
An individual
to such
subjected
and unconstitutional.
who
*30
338, 356-357;
Schader,
Dorado,
62 Cal.2d
People
supra,
v.
supra,
v.
62 Cal.2d
People
737, 743;
Fioritto,
728-731;
Sears,
supra, 68 Cal.2d
People
62 Cal .2d
v.
People
supra,
v.
948, 958;
720;
Randall,
20 Cal.3d
People McClary, supra,
1 Cal.3d
Jimenez,
230;
605-606.
and
(see,
conduct
invoke a
may
Cooper Dupnik (9th
of remedies
variety
e.g.,
1992)
Cir.
The issue we decide thus does turn today not on whether the question confessions; California Constitution condones the it obtaining coerced that our plain state Constitution such conduct. emphatically prohibits question before us involves a different and much narrower namely issue: whether, when an court determines that a trial erred in appellate court has that a finding defendant’s confession is and that the voluntary concludes trial, confession should have been admitted in evidence at a defendant’s California law requires that the appellate automatically court reverse the defendant’s conviction without regard to the nature and strength of the other trial, evidence guilt introduced at the or instead requires that the appellate court consider all the evidence properly admitted at trial determining whether reversal is warranted. As we have in view the lan- explained, guage history of the specific provision California Constitution governing Const., VI, question (Cal. reversible 13), error art. we § conclude that a rule of automatic reversal is not warranted under California law.
The judgment of the Court of Appeal is reversed insofar as holds that the erroneous admission of defendant’s involuntary confession automatically required convictions, reversal of his murder-related and the matter is re- manded Court of Appeal for further proceedings consistent with the views expressed this opinion.
Lucas, J., Panelli, J., Arabian, J., C. Baxter, J., concurred. MOSK, I dissent. J.
It been has said that fundamental truth is the first of war. casualty Now a fundamental principle justice has become a casualty of the synthetic war on crime. to the
Contrary conclusion of the majority there opinion, is no reason to abandon or even reconsider the that, well- and long-settled rule California trial, a criminal the admission into evidence of what has variously been called a “coerced” or “involuntary” confession defendant requires automatic reversal of any ensuing judgment of conviction. Certainly, handing down by the United States Supreme Court of its decision Arizona *31 302, 111 (1991) S.Ct. U.S. 279 1246]
v. Fulminante (hereafter Fulminante), abrogates which analo- purportedly sometimes rule, not with an provide “appropriate federal constitutional does us gous ante, 500) at to address the (maj. opn., question.1 opportunity” To must overlooked. be not be significance majority opinion sure, and the Star Chamber it will not send us back to the Inquisition us, “we have no occasion ominously, It assures somewhat that straightaway. inadmissible decide remain in this case to whether” coerced confessions 485-486, ante, at italics (Maj. opn., pp. under the California Constitution. take the that direction. added.) But it will cause us to first definitely step Fulminante, (Cf. L.Ed.2d at pp. 499 U.S. 294-295 [113 Arizona White, 321-322, J.) (dis. [treating 111 S.Ct. opn. 1257] automatic reversal of the federal constitutional rule of abrogation purported a as the of the related rule the admission of coerced confession abolition I refuse set the admission such a confession first barring place].) a dark out on such journey.
I. Coerced and Error Confessions be, is, from must ground. Let us what common proceed A. The States United Constitution a defendant’s It is error under United States Constitution to admit coerced confession into evidence at a criminal trial. Amendment
The Fifth establishes a self-incrimination: privilege against . shall to be witness “No . . criminal case person compelled remained un- himself . . . .” The constitutional has against provision since its in 1791. changed ratification 568, 573,
In Bram v. United U.S. States L.Ed. (hereafter Bram), S.Ct. sometimes the United States Court Supreme 183] trials, that the United concluded criminal the courts of expressly “[i]n States, wherever a question incompetent arises whether confession is voluntary, because not is controlled of the Fifth issue that portion States, that Amendment to the of the United no commanding Constitution emphasized presented 1It must be concerns our rule of the issue this matter does automatic reversal for the relate to a rule admission of a coerced confession. It therefrom, scope, is derived but broader in to the effect that the “introduction prejudicial per obtained from a defendant guarantees violation of constitutional [federal] v. Fioritto regardless (People requires guilt.” se and reversal of other evidence 625].) Cal.2d 441 P.2d
513 criminal be a witness any against ‘shall be case to person compelled ” himself.’ addition, In concluded that the Fifth Amend- impliedly Bram court its reach beyond ment’s self-incrimination extends privilege against criminal even in the of “compulsion” courtroom and absence operates States, (See supra, U.S. so called. Bram v. United 168 at commonly pp. 573-580].) 542-561 L.Ed. at pp. [42 “
Thus, confession, in one at the Bram court stated: ‘But a order to point admissible, is, free extracted by must be must not be voluntary: violence, any sort of threats nor direct or by any implied or obtained slight, however influ- promises, by nor exertion of improper A ence. ... can never where be received evidence has been influenced or law any threat for the cannot prisoner promise; used, measure the force the influence decide its effect upon upon mind prisoner, if any degree therefore excludes declaration ” States, (Bram influence has been supra, exerted.’ U.S. at United 168 pp. 573-574], 542-543 L.Ed. at in original, 3 Russell on pp. ellipsis quoting [42 (6th ed.) Crimes p.
At another
the Bram
point,
court stated: “The rule is not that
order to
render a statement admissible the
must be
proof
to establish that
adequate
particular
communications contained in a statement were voluntarily
made, but must
be sufficient
making
to establish
of the statement
causes,
was voluntary; that is to say, that from the
which the law treats as
sufficient
legally
engender
in the mind of the accused
or fear in
hope
to the crime
respect
charged, the accused was not involuntarily impelled to
statement,
make a
when but
influences he
have
improper
would
(Bram
States,
remained silent.”
v. United
at
supra, 168 U.S.
L.Ed.
p. 549 [42
575-576].)
pp.
The
Indeed,
conclusions reached in Bram
good
remain
law.
they were
explicitly
reaffirmed
the United States
Court in
Supreme
Miranda v.
694, 715-717,
(1966) 384 U.S.
Arizona
460-462
L.Ed.2d
86 S.Ct.
1602,
B. The Constitution California Constitution error under the California and Separately independently, a criminal trial. into evidence at to admit a defendant’s coerced confession privilege I its own Section 15 of article charter establishes state in a criminal may not... be against compelled self-incrimination: “Persons derives from provision . . This against cause to be a witness themselves . .” 13 I effective 1879: former article of the Constitution currently section case, a to be witness “No criminal person any shall ... be compelled, turn, . That was taken from section 8 provision, himself. . .” against “No and Constitution of 1849: superseded, article I of the now original, case, criminal to be witness . . . shall ... person compelled, any . . the state constitutional against present privi- himself . .” For purposes, (1910) (See, People Loper 159 is much the same as the federal. lege e.g., 6, 720].) Cal. 17-20 P. [112 Underlying
C. Policies against self- Informing privileges the federal state constitutional related rules coerced barring incrimination admission are diverse values and purposes. confession ad- law . . . have been generally, Anglo-American many “policies (8
vanced . . self-incrimination. justification” against as . privilege Wigmore, (Chadbourn 1970) significance. (See assault 3 Evidence rev. is without doctrinal 823, p. Wigmore].) 340 3 § [hereafter “ any language that a not be ‘obtained It should be noted that Brant’s ” improper implied promises, slight, direct however nor the exertion influence’ States, 573-574]) (Bram pp. “under supra, pp. v. United 168 U.S. 542-543 L.Ed. of a determining current does state the standard for the voluntariness confes precedent Fulminante, (Arizona supra, U.S. at purposes. sion” federal constitutional 499 for relevant 314-315, White, J.).) p. 285 L.Ed.2d S.Ct. at at pp. (opn. 111 1251] 515 2251, 1961) 8 (McNaughton Evidence rev. Wigmore, [hereafter § accord, 867, Coleman Wigmore]; 1024]; Comm’n Murphy P.2d see Waterfront 678, 681-682, 84 S.Ct. 378 U.S. 1594] [hereafter 295-318; Murphy]; Wigmore, supra, pp. sometimes see generally § McCormick, (4th 1992) Evidence ed. 1 Mc pp. § [hereafter real, Cormick].) are others only apparent; Some some themselves implicate situations, few; basic, are many only merely others some others 295-318; (See derivative. 1 McCor generally Wigmore, pp. § mick, 430-435.) §
Among are in the policies, worthy these three of note matter. present One is the and overreaching the the conse prevention by government individual, mistreatment of the quent whether torture or by psycho physical logical pressure, by (see blatant measures or subtle devices 8 Wigmore, § 2251, 315-316; McCormick, § 118, 1 supra, pp. supra, 433)—put p. otherwise, the avoidance of a “recurrence the and Star the Inquisition Chamber, (Ullmann even if in their not stark v. United States brutality” 422, 511, 497, 519, 350 U.S. 428 L.Ed. S.Ct. 53 [100 76 A.L.R.2d 1008]; accord, 494, Board Education v. Mass 503 [304 Carter, (conc. P.2d opn. J.)).3 1015]
Another policy is exclusion evidence that is as inherent regarded i.e., unreliable, ly (1 “self-incriminating of the accused” admissions McCormick, 118, supra, 432), in p. with § accordance what has been described as “our distrust (Murphy statements” self-deprecatory v. Water Comm’n, supra, accord, 681-682]; 378 U.S. at L.Ed.2d at p. front (1978) 21 Cal.3d P.2d Jimenez 672]).
But substantial, policy is the most and is expansive, fundamental this: “The privilege contributes toward a fair state-individual by balance requiring government to leave the individual alone good until is cause shown for him disturbing and by government in its requiring contest with the individual to shoulder the (8 entire load.” Wigmore, supra, p. § 317.) For it is “prevailing ethic that the individual is and sovereign rules of battle proper between government and individual require that individual not be bothered for good less than reason not be conscripted his by opponent (Id., 318.) defeat himself . . . .” § 3The majority declare that the “situation in which a confession is obtained as a an result of promise improper common” leniency” benefit or is “much more than that in which confession is by ante, “elicited violence or threats (Maj. of violence . .” opn., . . at This factual assertion is unsupported. hope I is true. it is not. I fear as to the recognized point Court has Supreme
The United States self-incrimination. privilege against federal constitutional Comm’n, Thus, 378 U.S. court in Murphy v. Waterfront against at “The pages privilege declared at L.Ed.2d page 681-682]: in the our development an advance ‘registers important self-incrimination make himself struggle man’s great landmarks liberty—“one ’ and most of our fundamental values many civilized.” It reflects [Citation.] rather than for an accusatorial including noble “our aspirations,” preference fair which and “our sense of justice” play of criminal system inquisitorial to leave government ‘a fair requiring dictates state-individual balance him and disturbing good the individual alone until cause shown shoulder the with the individual to government its contest requiring ” omitted.) (Fn. entire load[.]’ to 8 Malloy pages U.S. the court observed Hogan, prose- of criminal system American pages 658-659]: “[T]he accusatorial, Amendment the Fifth and ... cution is inquisitorial, federal, Governments, state is its essential privilege mainstay. [Citation.] *35 by indepen- are evidence constitutionally compelled guilt thus to establish secured, charge against and freely by prove and coercion dently accused out of his own mouth.” Arizona, 436, the elaborated at supra,
And Miranda v. 384 U.S. court under- 460 L.Ed.2d at constitutional foundation page page [16 715]: “[T]he or federal—must government—state the is the lying privilege respect a ‘fair its To maintain accord to the and of citizens. dignity integrity balance,’ the entire state-individual to the ‘to shoulder government require load,’ [citation], our inviolability the of the human respect personality, government seeking that the system of criminal demands accusatory justice its him own against an individual the evidence punish produce cruel, labors, compelling than of expedient rather independent simple own from his mouth.” privilege have the same as to the state constitutional recognized We point People as v. self-incrimination. Our discussion in such decisions against Jimenez, 595, (1969) 21 Cal.2d supra, People Cal.3d and v. Schader 71 761 1, cases, 841], In both we proof. effectively 457 P.2d furnishes [80 Malloy court and guaranty Murphy construed state charter Jimenez, (See supra, had v. 21 People construed the of the federal. guaranty 605; Schader, 769-770.) supra, v. pp. Cal.3d at the admission barring federal state constitutional rules Underlying of a coerced confession are policies correspond—unsurprisingly—to
517 self-incrimi- against those the federal and state constitutional privileges . nation. is the
Accordingly, policies prevention governmental one of these Israel, (1984) (See 1 & Procedure LaFave Criminal overreaching. e.g., & the federal 6.2(b), [discussing LaFave pp. § Israel] [hereafter 104, rule]; (1985) Miller v. Fenton 474 U.S. 109 constitutional [88 [same; from Brown v. implying, 106 S.Ct. words quoted 445] 682, 687], rule’s Mississippi (1936) 297 U.S. 286 L.Ed. that the “ is to deter official conduct that is sense purpose ‘revolting ”]; justice’ People Atchley P.2d Cal.2d 764] “because,” that coerced are excluded [stating generally among confessions reasons, other “exclusion serves to the use of discourage physical brutality crime”].) and other undue pressures questioning those suspected is (See, Another the exclusion evidence deemed policy e.g., unreliable. Israel, & 6.2(b), LaFave the federal [discussing § rule]; Atchley, constitutional [stating 53 Cal.2d at “because,” generally that coerced are confessions excluded other among reasons, are “they untrustworthy”].)4 however,
The most basic fairness policies, simply ensuring of in the contest between government (See, individual. Colo- e.g., rado Connelly, supra, 479 U.S. p. 167 L.Ed.2d at pp. 484-485] rule; [discussing federal constitutional stating, quoted words from 166, 179-180, Lisenba 314 U.S. L.Ed. California 280], S.Ct. aim of the due requirement process “‘[t]he is not to *36 evidence, exclude presumptively false but to prevent fundamental unfairness in the [government’s] individual], use of evidence the [against whether true ”]; People v. Atchley, supra, false[]’ 53 at [stating Cal.2d 170 p. generally “because,” that coerced reasons, are confessions excluded other “it among ‘the offends sense community’s of fair play decency’ to convict a defendant by evidence him”].) extorted from
It goes without that the saying “fairness” that underlies the policy both federal and state constitutional privileges against self-incrimination and the 4It has been (1986) 473, asserted that in Connelly Colorado v. U.S. 157 479 L.Ed.2d [93 515], 107 S.Ct. Supreme United States departed Court reliability from the policy for McCormick, purposes 147, (1 federal constitutional rule. supra, 568.) p. That is not § the case. Connelly court only held requires the rule confession that is coerced government, and is not aby (Colorado satisfied merely statement that is unreliable. Connelly, supra, pp. U.S. at 481-485]; L.Ed.2d at cf. [93 v. Benson 52 Cal.3d [holding 802 P.2d in substance that the 330] state incorporates constitutional rule the same requirement].) does not seek to confession of a coerced the admission barring related rules (See, e.g., in criminal proceedings. the truth the ascertainment of further 459-460, 86 S.Ct. L.Ed.2d (1966) 382 U.S. Tehan v. Shott to the adjunct “is not an privilege the federal constitutional [stating 459] in this regard. neutral truth”].) merely policy Nor is this ascertainment of (See, e.g., Rather, goal. attain the frustrate efforts to fact to serves 810, 821-822, L.Ed.2d (1976) 425 U.S. Palmigiano Baxter v. “derogates federal constitutional privilege that the [stating 96 S.Ct. 1551] decisions”].) What it aims to the chances for accurate rather than improves reliability is not suggests, the discussion above promote, trial, the criminal legitimacy individual criminal but of an outcome itself. system justice admission, federal at a that the
In it is foregoing, plain view of trial, Fifth Amendment’s offensive to the a coerced confession criminal law due a denial of process constitutes self-incrimination against privilege Arizona, (See 384 U.S. Miranda v. amendment. under that same Clark, J.).) Similarly, (conc. & dis. opn. L.Ed.2d at p. 740] trial, admission, denies due of this sort criminal of a confession at a state (See, Payne v. Arkansas e.g., Amendment. under the Fourteenth process 975, 981, S.Ct. 844] [hereafter 356 U.S. 568 [2 California, admission of a coerced Payne].) sometimes due denies also privilege federal and/or state constitutional to the offensive (See, e.g., I the state charter. and 15 of article of under sections 7 process Benson, II. and Reversal Coerced Confessions California under the United States and the fact that it is error both From at a evidence a defendant’s coerced confession into to admit Constitutions trial, such consequences let us now turn to question criminal error. Constitution
A. The United States *37 to the put Constitution—Fulminante rule under the United States It is the defendant’s coerced confes- the admission of a being—that the time side for (See, e.g., reversal. evidence at a criminal trial automatic requires into sion 470-471, 570, 578, 460, 106 (1986) U.S. fn. 6 L.Ed.2d Rose v. Clark 478 [92 Clark]; (1983) 461 Hasting United States v. S.Ct. sometimes 3101] [hereafter 96, 105-106, 499, 508, 1974]; Jersey New U.S. fn. 6 L.Ed.2d 103 S.Ct. [76 501, 510, 1292]; 450, (1979) L.Ed.2d 99 S.Ct. v. Portash 440 U.S. 459 [59 290, 303-304, 385, L.Ed.2d 98 (1978) v. 437 U.S. 398 Mincey [57 Arizona
519 477, 618, 2408]; (1972) 404 Twomey U.S. 483 L.Ed.2d Lego S.Ct. v. [30 623-624, 18, 619]; (1967) & Chapman v. 386 U.S. 23 fn. 92 S.Ct. California 824, 705, 710, 24 A.L.R.3d some 8 L.Ed.2d 87 S.Ct. 1065] [17 [hereafter 368, (1964) Chapman]; v. Denno 378 U.S. L.Ed.2d times Jackson 376 [12 908, 915, 1774, 1205]; Haynes (1963) Washington 84 S.Ct. 1 A.L.R.3d v. 503, 513, 523-524, 1336]; Lynumn 83 v. 373 U.S. 518 L.Ed.2d S.Ct. [10 528, 922, 928, 917]; (1963) 372 537 L.Ed.2d 83 S.Ct. Illinois U.S. [9 206, 242, 199, (1960) Blackburn v. Alabama U.S. 211 L.Ed.2d 361 [4 247-248, 250-251, 315, 274]; Spano (1959) v. New York 360 U.S. 80 S.Ct. 1265, Arkansas, 1272, 1202]; 324 Payne L.Ed.2d 79 S.Ct. 356 [3 443, 981]; U.S. at p. (1953) 568 L.Ed.2d at Allen 344 U.S. p. [2 Brown v. 469, 498-499, 397]; 475 (1952) 93 S.Ct. Stroble [97 California 181, 872, 880-881, 599]; 343 U.S. 190 Gallegos L.Ed. 72 S.Ct. [96 55, 93, 86, 141]; (1951) Haley Nebraska 342 U.S. 63 L.Ed. 72 S.Ct. [96 596, 224, 228, (1948) 302]; Ohio 332 U.S. L.Ed. 68 S.Ct. Malinski [92 1029, 1032, (1945) 781]; v. New York 324 U.S. L.Ed. 65 S.Ct. [89 596, 597, 1481, 1483, Lyons (1944) v. Oklahoma 322 U.S. fn. L.Ed. 1208]; (1924) S.Ct. Wan v. United States 266 U.S. L.Ed. 1]; States, 45 S.Ct. Bram v. United 168 U.S. at L.Ed. 573].)
The rationale of is the rule easy discern. It is bottomed on policy individual, fairness the contest between the government which underlies the Fifth Amendment’s privilege against self-incrimination and the related rule barring the admission a coerced confession.
Stated more the rationale is to expansively, this effect: “The harm caused by the violation—the skewed balance between the state and the accused— be cured new [only] by [can] trial at which the confession and its fruits are excluded. Because the value fair not play reliability, is concerned with conviction be reversed and process [must] redone even when the [the] defendant is we undeniably guilty and are fully confident that the confession did not affect the jury’s verdict.” & (Stacy Dayton, Rethinking Harmless Constitutional Error 88 Colum. L.Rev. Stacy & [hereafter Dayton].)
The rule confession, of automatic reversal does overlook the fact that a trial, when introduced at constitutes But evidence. it recognizes that such generis. evidence is sui “A plea guilty essence a in open (In 122, 135, court. . . .” re Tahl 1 Cal.3d fn. 11 449].) 460 P.2d Similarly, confession is substantially extrajudicial plea A guilty. coerced guilty plea cannot conviction: the former support *38 renders latter a (See, denial due v. process. e.g., Waley Johnston 1302, 1304, 964].) It follows L.Ed. 62 S.Ct. (1942) 316 U.S. 104 [86 the same reason. a conviction for that a coerced confession cannot support (Ibid.) rule, considerations does not at all on depend it must be emphasized, Denno, the United States supra, In 378 U.S. reliability. Jackson at “It is . . . declared at L.Ed.2d page 915]: Court
Supreme page [12 due process a defendant in a criminal case is deprived axiomatic that founded, involuntary in an upon if whole or part, law his conviction confession, [citation], of the confession regard falsity without truth or evidence aside from the confession and even there is though ample the conviction.” support concern is a more practical
Associated with the “fairness” rationale such, which has that inheres confessions as evidentiary force regarding constitutes a that “where ... coerced compelled recognition , what credit . no one can jury say of the evidence before . . part Arkansas, 356 U.S. {Payne supra, jury confession.” weight gave 981].) at p. p. century the rule automatic reversal dates back almost Manifestly, States, L.Ed. at (See p. Bram. Bram v. United 168 U.S. There, if confession is 573].) the court held that a defendant’s coerced flatly admitted, added.) (Ibid., italics This “reversible error will result . . . .” “general assump treated an instance of some holding merely cannot be Barely se. two per tion” that all federal constitutional errors are reversible later, United States 178 U.S. 475-476 [44 terms Motes v. 1150, 1156, 993], held harmless the 20 S.Ct. the court expressly L.Ed. Amendment right evidence in violation of a defendant’s Sixth admission of Bram, in the initial of this paragraph of confrontation. Since as the citations indicate, the rule and reaffirmed time and section has been adhered to firmly again.
The rule of automatic reversal arose
which it was assertedly
period
are subject
“unclear” whether and to what extent federal constitutional errors
&
Colum. L.Rev. at
pp.
to harmless-error
analysis. (Stacy Dayton,
82-83;
U.S.
764-765
compare Kotteakos United States
1557, 1556-1567,
L.Ed.
66 S.Ct.
dictum that
error
[stating
1239]
be held
where the
is from a constitu-
harmless “except perhaps
departure
States, supra,
tional
with Motes v. United
178 U.S. at
norm”]
L.Ed. at
harmless the admission of evidence
[holding
1156]
confrontation].)
violation of a defendant’s Sixth Amendment
right
In Chapman California, supra,
ended.
386 U.S.
period
are,
the United States
Court held
federal constitutional errors
Supreme
*39
indeed,
(Id. at
21-22
L.Ed.2d at
to harmless-error
subject
analysis.
pp.
[17
708-710].)
In the
words:
be some constitutional
pp.
court’s
“[T]here
a
setting
errors which
case are so
particular
unimportant
Constitution, be
may,
consistent with the Federal
insignificant
they
harmless,
deemed
automatic reversal of
conviction.”
requiring
(Id.
709-710].)
at
a
at
L.Ed.2d
standard is strict:
p.
pp.
[17
“[B]efore
federal
held
constitutional error” that is not
reversible “can be
automatically
harmless,
the court
a
it
harmless
must
able to declare
belief
(Id.
710-711].)
doubt.”
at
at
beyond
reasonable
L.Ed.2d
p.
pp.
[17
court, however,
The Chapman
from harmless-error
expressly excepted
in the
own
analysis
admission of
coerced confession.
court’s
Again
words:
prior cases have indicated that there are
constitutional
some
“[0]ur
rights so basic to a fair trial
can
that their infraction
never be treated as
. .” (Chapman
California, supra,
harmless error .
.
v.
23p.
386 U.S. at
[17
710].)
decisions,
Payne
L.Ed.2d at p.
The court cited
one
those
(Id.
the introduction of a coerced confession as one
those
at p.
errors.
that,
fn.
Payne had held
710].)
L.Ed.2d at p.
matter what the
no
evidence,
other
“admission
evidence ...
coerced confession
[a]
vitiates the
judgment because
violates
Due Process Clause of
Arkansas,
Fourteenth Amendment.”
(Payne
supra,
harmless error. In Rose 478 U.S. the court concluded that federal constitutional are errors generally subject to harmless-error (Id. analysis. 469-471].) L.Ed.2d at pp. It explained: “ ‘The harmless-error doctrine recognizes the that the central principle pur pose a criminal trial to decide the factual question of defendant’s guilt [citation], or innocence and promotes for the criminal public respect process by focusing on the underlying fairness of the trial rather than on the ” virtually inevitable presence of immaterial (Id. error.’ L.Ed.2d 470], at p. quoting Delaware Van Arsdall 475 U.S. 681 [89 674, 684-685, 1431].) 106 S.Ct. same, All the the Clark court continued to expressly from except harm Clark, less-error analysis (Rose admission of a coerced confession. supra, 478 U.S. at pp. 577-578 & fn. 470-471].) L.Ed.2d at pp. It did so because “some errors necessarily render a trial fundamentally unfair. The State of course must a trial provide [citation], before an impartial judge with counsel to help the [citation], accused defend against the State’s . . charge . Without these basic protections, criminal trial cannot serve its reliably function aas vehicle [citation], for determination guilt or innocence *40 fair. Harm- fundamentally be may regarded
and no criminal punishment defendant, trial, repre- at which the thus analysis presupposes less-error counsel, an impartial and before argument evidence may present sented 470-471].) In the L.Ed.2d at (Id. pp. 577-578 and judge jury.” pp. [92 view, the trial basic coerced confession” “abort[s] the “use of court’s [a] so, 470-471].) It does (Id. L.Ed.2d at pp. . . .” fn. p. . process course, of extrajudicial plea substantially is because of guilty. Clark, “As the Court Stevens stated: Justice judgment the
Concurring certain consti remains inquiry inappropriate harmless-error recognizes, be. guilt the evidence strong no matter how tutional violations harmless error to inapplicability The Court suggests [Citations.] and and accuracy, reliability rests on concerns about these violations determining appli relevant consideration only concerns are such fact, however, of certain In violations harmless error. cability of [Citation.] be, not, harmless-error subject are and should rights constitutional unrelated to values that are rights protect important because those analysis Thus, admission of . . . function of the trial. truth-seeking [t]he trial though process harmless even basic confession can never be coerced overwhelming. guilt fair and the evidence of was otherwise completely Constitution, short, other justice system, protect criminal . . our and our . (Rose innocence determination.” guilt of the reliability values besides 476-478], Clark, fn. L.Ed.2d at pp. 478 U.S. at Stevens, J.).) (conc. opn. omitted advent of reversal survived the formal the rule of automatic
Accordingly, Chapman development and its analysis subsequent harmless-error Indeed, The decisions. rule was reaffirmed both Clark. explicitly Payne. (Chap authority cited to the Chapman simply unquestioned court 710].) For fn. 8 L.Ed.2d at California, supra, p. man v. 386 U.S. at p. federal to fit settled attempt its the Clark an awkward part, court—making that the “use reliability-—asserted bed of constitutional law to its procrustean (Rose . . . .” the basic trial process coerced confession” “abort[s] [a] Clark, 470].) L.Ed.2d at U.S. at fn. 6 rule automatic were to reaffirm the
Chapman manifestly right and Clark to assess analysis designed The harm that harmless-error reversal. threat of an individual criminal trial is whether or not the outcome of concerns necessarily The harm that the admission of a coerced confession reliable. government contest between the causes is the of fairness undermining and, justice the criminal the individual ultimately, legitimacy Hence, the intro- analysis itself. of harmless-error system application does not even analysis such duction of a coerced confession is inappropriate: of a error this sort. harm take cognizance injury peculiar only judgment can cured reversal of coerced confession retrial.5 exclusion of the confession at
B. Law California *41 it that the admis is the rule California Separately independently, criminal sion of a defendant’s coerced into evidence at a trial Jimenez, (See, 21 People supra, automatic Cal.3d at e.g., reversal. v. requires 642, 605-606; 562, People (1969) v. 70 Cal.2d 571 pp. Cal.Rptr. [75 Sanchez 1, 466, 74]; (1964) People 451 P.2d v. 61 469 Cal.Rptr. Matteson Cal.2d [39 Matteson); (1961) P.2d People 393 sometimes v. Brommel 56 161] [hereafter 629, 909, 845]; (1960) Cal.2d 634 Trout 54 People 364 P.2d v. Cal.Rptr. [15 576, 759, 231, 1418]; People Cal.2d 354 585 P.2d 80 A.L.R.2d Cal.Rptr. 286, (1958) v. Berve 51 Cal.2d P.2d sometimes 97] [hereafter Berve); 20; People v. Loper, People (1874) Cal. at v. supra, 159 Barric 342, 345; 452, 455; People (1871) Cal. v. People Johnson Cal. v. Ah How 218, (1867) 223-224.) 34 Cal.
The rationale of our rule of automatic on reversal rests the of policy individual, fairness the contest between the and the which government underlies state constitutional and the privilege against self-incrimination related rule a barring admission of coerced confession.
Berve, 286, area, supra, Cal.2d one of the landmark decisions we point made the plain: introduction aof coerced confession “constitutes a denial due process of of law .. . under the . . . state ] Constitution a of requiring reversal the conviction other evidence although may be consistent with guilt. . ‘. . Coerced confessions offend the [Citations.]
community’s sense of fair . . . play decency. Nothing would be more ” calculated to discredit law and thereby to brutalize the a temper society.’ of course, presence 5Of “the of extending beyond factfinding functions reliability does not place necessarily a constitutional violation outside the reach of analysis [harmless-error Chapman. The privilege under] self-incrimination variety serves a beyond of interests innocent, protection yet Chapman the Court in applied the harmless error standard to an infringement 609, right (1965) [under 380 U.S. 611-615 [14 Griffin California 106, 108-110, 1229], L.Ed.2d 85 S.Ct. which prohibits comment on a defendant’s failure to testify at trial that invites or allows the jury guilt to infer . Similarly, the . . therefrom]. 643, [exclusionary] 1081, 1089-1090, Mapp (1961) (6 rule [of Ohio 367 U.S. 933)] 81 S.Ct. designed 84 A.L.R.2d is protect right privacy guaranteed by Amendment, Fourth but (unanimously) the Court has held Chapman that the harmless error instances, applies however, standard Mapp violations. In both ‘prophylactic’ ‘supplemental’ function the particular being constitutional standard applied may explain why governs Chapman notwithstanding non-reliability functions the general guarantee. Thus, the Amendment, confession, admission coerced viewed as core violation Fifth subject Israel, (3 automatic (1991 reversal rule.” pocket LaFave & supp.) 26.6, 89-90, added.) § fns. omitted and italics 165,173-174 (1952) 342 U.S. (Id. Rochin quoting California 183, 190-191, 1396].) 25 A.L.R.2d 72 S.Ct. L.Ed. evidence, evidence is indeed but that a confession Our rule too recognizes A coerced guilty. extrajudicial plea being substantially sui generis, (See, e.g., under law. California cannot a conviction support guilty plea 63 Cal.2d v. Wadkins follows, law, confes- neither can a coerced 429].) Under that same P.2d sion. rationale, although only apparently with the “fairness”
Associated viz., Matteson, case, People v. dictum in a coerced-confession single force evidentiary regarding concern practical is more Cal.2d *42 in In v. Parham People that inheres as such. confessions 497, was not a coerced-confession 384 P.2d 1001]—which will a confession case—we stated in dictum: “Almost ... invariably, extremely it therefore usually constitute evidence of and is persuasive guilt, in the conviction. securing difficult to determine what it part played [Cita confessions as involuntary These considerations justify treating tions.] in rare cases their class to whether by refusing inquire themselves and 385.) (Id. in This p. admission evidence had no on result.” bearing Matteson, decided some in in which was language was alluded to dictum Matteson, 470.) (See supra, Cal.2d at People p. after Berve. years arose, and came to full It rule of automatic reversal must be noted our stature, analysis. within a harmless-error jurisprudence requiring How, (See People
Our rule v. Ah goes early years back to of statehood. 455; 223-224; Johnson, 41 Cal. at People supra, 34 Cal. at Barric, 49 Cal. deemed, roots, It cannot be its historical simply particularization some formerly any attached to error. “presumption prejudice” 1850, since into the Union in no such
Virtually California’s admission has existed this state. “presumption prejudice” 1851, harmless-error was established statute. analysis 29, 1851, 499, Statutes hearing section 267: “After chapter page appeal, give judgment Court shall without to technical error or regard defect, which does not affect substantial of the This rights parties.” is the provision substantially source of identical Penal Code section “After unchanged: which enacted 1872 and has remained technical to regard the court must without hearing appeal, give judgment defects, rights or or which not affect the substantial errors to do exceptions, parties.” of the too, “Neither a 279:
So Statutes section page chapter in respect any from the form or this Act departure prescribed by mode render the an therein shall pleadings or nor error or mistake proceedings, invalid, defendant, tended same unless it have or actually prejudiced his to a This source prejudice, respect right.” provision substantial identical Penal section which was enacted substantially Code and has unchanged: remained “Neither a from or form departure prescribed by mode this Code in nor respect proceeding, pleading therein, invalid, an error or mistake renders unless it has actually preju- defendant, diced or tended to his to a substantial prejudice, respect right.”6
In Brotherton (hereafter Cal. sometimes Brothertori), we declared delivered Chief opinion Justice Wallace for a unanimous court: *43 , remembered,
“. . . Our . judgment. . it must be is be given‘without regard to technical error or defect which rights does not affect the substantial of the parties.’ is,
“That therefore, a technical error has intervened at the trial not of itself enough warrant our interference. 1851, 5, 71, 6Similarly, shall, Statutes chapter page section 61: every stage “The Court in action, disregard an any or defect pleadings, proceedings, error in the or which not shall rights affect parties; substantial of the judgment and no by shall be reversed or affected reason such error or defect." This provision is the source substantially of the Code identical must, of Civil Procedure section enacted every in 1872: Court in stage “The action, disregard any error or defect the pleadings proceedings in or which does not affect rights substantial parties, and judgment no be by shall reversed or affected reason of 1897, such error or defect." provision present amended into its form: “The court must, action, error, every stage disregard instruction, defect, in anof any improper ruling, or which, pleadings court, in the proceedings or in opinion of said does not affect the rights parties. decision, substantial No judgment, or decree shall be reversed or affected error, by instruction, defect, ruling, reason of or appear unless shall from the record that error, instruction, ruling, such error, prejudicial, or defect was and that also reason of such instruction, defect, ruling, or party complaining the said appealing or sustained and suffered injury, substantial error, and that a different result would have if probable ruling, been such instruction, or defect had not occurred or presumption existed. shall no There that is error
prejudicial, that injury 1897, 47, 1, (Stats. 44, was done error is shown.” ch. italics § if added.) further, way in some affirmatively and show go must “The prisoners affected the error com- have injuriously been rights their substantial indulged Mere intendments them to do so. upon of. burden plained below, intendments are so far as such the proceedings here are support the record.”7 consistent with reaffirmed, to, People v. decisions as and Brotherton such
We adhered
381,
82;
77,
(1881) 59 Cal.
(1880)
People v. Barnhart
Nelson
56 Cal.
32,
53],
384-385;
(1895)
Cal.
P.
People
and
v. Clark
Thus,
were regu-
we
arising,
even as our rule of automatic reversal was
examined the entire
which we
larly conducting
analysis,
harmless-error
cause,
cases we concluded
including
Accordingly, many
the evidence.
errors of
were
because
were
they
prejudicial.
various sorts
not reversible
including
For
we held
harmless
decisions
example,
errors
pleading
72,
126];
(1903)
People
(1901)
People Haagen
v.
P.
v.
Wynn
Cal.
73 [65
500,
836];
(1904) 145 Cal.
People
139 Cal.
116-117
P.
and
v. Mead
1047],
P.
in cases such as
we deemed harmless errors of
Similarly,
procedure
494-495;
(1880) 57
(1879)
People
v. Gilbert
People
Sprague
Cal.
362];
96, 98-99;
P.
People
Cal.
v. O’Brien
88 Cal.
488-489 [26
421];
People
Smalling (1892)
Cal.
P.
119-120 [29
107],
P.
Dolan
96 Cal.
318-319 [31
Also,
including
we held erroneous instructions harmless
decisions
Nelson,
83;
People v. Burns
Lastly—and particular significance People on the or evidence in such as v. bearing admission exclusion of cases 103, 106, People Murphy (1873) 7It be on another should noted that in v. 47 Cal. overruled 415, 165, 714], People (1962) Ditson point in v. P.2d Justice 57 Cal.2d 440 [20 369 opinion expressing any Crockett held in for the views— his court—Chief Justice Wallace not presume injurious that “we must to the defendant unless that erroneous [an instruction] 113, 119, People Stanley (1873) contrary clearly appears.” the And in v. 47 Cal. Justice dissent, court, opinion vigorous Crockett held in his for the over Chief Justice Wallace’s “every contrary testimony presumed injurious, error in the admission of to be unless the later, clearly appears.” effectively Just a few months these two decisions were overruled in Brotherton, sure, quoted “presumption prejudice” as the words in the text establish. To be of Brotherton, language occasionally appearance opinions did make an in our after but it did so 345, 347; (See People People v. Sansome (1881) (1890) Furtado only rarely. v. Cal. 84 57 449, 508, 143]; 510], People v. Moore (1894) Cal. overruled 451 P. 103 Cal. 511 P. [24 [37 450, 416]; point, People People v. Russell (1909) on another 156 Cal. P. v. 458-459 [105 127, Richards (1902) 477].) 136 Cal. P. 128-129 [68
527 317, 719]; (1890) (1889) People v. Nelson 85 Lee Chuck 78 Cal. 321 P. [20 319; Dolan, 421, 425, 1006]; at People P. v. 96 Cal. page Cal. 429 [24 384, 665]; (1894) Cal. P. v. People Greening People v. 386-387 [36 Clark, 262, 720]; (1894) Daniels 105 Cal. P. 41; People (1898) 38 to v. Barthleman 120 Cal. P. Cal. pages 73; 112]; Wynn,supra, People 133 Cal. at and page Glaze 965], Cal. P. another on Funk disapproved point 593], Superior Court P.2d 10, 1911, At a held the special election on October people approved Senate Constitutional Amendment No. and added Proposed thereby (hereafter former section 4Vi article of the to VI California Constitution aside, 4Vz): sometimes “No trial former section shall set or new judgment be granted criminal case on of the any ground jury misdirection of or evidence, rejection admission or or error matter of improper any of for as to unless, pleading or after procedure, an examination of the entire cause evidence, including the court shall that the error opinion complained of has resulted In miscarriage justice.” consti- case,” tutional provision was amended as to order cover scope, “any criminal, civil as well as as also it was as phrasing. repealed section 41/2 (hereafter and added as 13): section sometimes section “No aside, cause, shall be judgment set or new trial on granted, any the ground misdirection or jury, admission or improper rejection evidence, or for error as to any any matter of pleading, any error as to unless, cause, matter procedure, after an examination of the entire evidence, including the the court shall be of the that the opinion error of has complained resulted of justice.” miscarriage Thus, stature, even as our rule of automatic reversal came to full we regularly conducted harmless-error in which we analysis, examined cause, entire including evidence. Accordingly, cases too numerous even to cite representatively, we have concluded that errors of various sorts were not reversible because were they prejudicial. we practice have adopted followed over years makes plain decisions, viz.,
what is in our implicit our rule automatic reversal treats admission of a coerced itself a “miscarriage Const., VI, (Cal. justice” 13), art. very which § least “tend[s] [the *45 Code, prejudice ... respect (Pen. defendant’s] substantial right” 1404) and cannot § be deemed a mere (id., (Cf. “technical” error 1258). § Davis v. City (1990) Berkeley 51 Cal.3d Cal.Rptr. P.2d [holding that the 897] “practices adopted and followed local by governments to with the comply requirements of article XXXIV” Constitution, California with dealing voter approval low-rent housing considered, defer- considerable given and “may appropriately projects, ence, On occa- meaning”].) provision’s that constitutional determining however, Deviation, sion, true, rule. is we have failed to our apply it is defeasance. inconsistent with harmless-error
Our rule of automatic reversal is not of the Penal Code and sections 1258 and 1404 by as established analysis VI the California Constitution. mandated section 13 of article under need so far as harmless-error long analysis We not detain ourselves indeed indisput- concerned. It is and statutory undisputed, provisions self-incrimination, able, under both the United against that tiie privilege Constitutions, States and California is one of the most “substantial” Code, (Pen. 1258.) it is settled “rights." Similarly, beyond peradventure § that the of a must at the least very admission coerced confession “tend[] (Id., right.” to this most “substantial prejudice” respect [the defendant’s] § we must
As for harmless-error
under the constitutional
analysis
provision,
more
and
of section
spend considerably
application
time.
construction
section 41/2—ofarticle VI of the California Constitution are not
13—former
determined,
(see maj.
to the evident belief of the
easily
contrary
majority
ante,
(1956)
487-493)
(see,
at
and
v. Watson
e.g.,
others
opn.,
pp.
Watson]; People
Cal.2d
P.2d
sometimes
834-837 [299
243] [hereafter
Brown
466-467
758 P.2d
1135]
Mosk, J.)).
(conc.
opn.
sometimes Brown]
[hereafter
ante,
That is because the
“seminal decision”
(maj. opn.,
pp.
so-called
491, 506)
(hereafter
People O’Bryan
165 Cal.
P.
1042]
O’Bryan)
sometimes
raises far more
than it answers.
questions
outset,
At the
we must
fact
a fact
has
recognize,
emphasize,
In O’Bryan,
been overlooked.
there is no
of the court.
generally
opinion
Justice
in which
Angellotti
Sloss authored
lead
Justice
opinion,
(lead
(People O’Bryan, supra,
Justice Shaw
At trial it was that the defendant jury, before established beyond dispute Works, was a organization member of labor Iron striking Llewellyn *46 Avila, a one John D. the date in he shot question fatally and on at Llewellyn. worker nonunion intended kill the defendant to
The of was whether not point controversy Avila. to
The to intent. It evidence prosecution sought prove presented such he working that the defendant to terrorize Avila because was sought show Included, the was certain defendant Llewellyn. testimony apparently, the given had words: “On the grand jury. day before Justice Sloss’s the shooting, being ... defendant was arrested on concerned suspicion Avila, days the and was held in killing custody county jail. the [Some was, later,] sheriff, ... he taken the which was by grand jury before homicide, and his investigating was sworn and questioned concerning actions before at the time of the He was informed his shooting. not himself, constitutional he right to decline to be a witness nor against warned that his statements be used him. In might against response to examination of the he grand district made to the attorney, jury number confession,” statements. These statements did they not amount to a indeed itself, were substantially unrelated to “but were shooting admissible evidence against the defendant (Peo as . against declarations interest. . .” Sloss, ple v. O’Bryan, supra, Cal. (lead J.).) opn. by stand, The defendant denied Taking intent kill. he direct testified on Avila, examination that he sought merely frighten him cause cross-examination, him, On any injury. the prosecution over questioned objection, to certain he testimony that had given grand before the jury. The returned jury a verdict the defendant murder finding guilty of first degree. The superior court entered judgment accordingly.
On appeal, Justice Sloss concluded that the admission of the defendant’s grand jury testimony was error. “This testimony should not have been admitted. The course was in pursued violation of the constitutional right every person case, not to ‘be compelled, criminal to be a witness Cal., I, against (Const. himself.’ 13.)” art. sec. (People O’Bryan, (lead Sloss, 165 Cal. at p. J.).) defendant, opn. “Here when brought before grand jury, was under an custody guilt accusation of crime under Taken investigation. into presence of that body by sheriff, counsel, sworn and examined without aid of and without any instruction as to his rights, cannot be said that his submission to the interrogation inwas any fair sense voluntary. great preponderance authority is that so testimony given a defendant is not to be used against (Id. (lead Sloss, him.” 62p. J.).) opn. by
“But,
in
testi-
that error was committed
the admission of this
conceding
continued,
whether the
Justice Sloss
“there still remains
mony,"
question
(People
a
character and effect of the error were such as to
reversal.”
require
Sloss, J.).)
(lead
O’Bryan, supra,
v.
“The general he “is Inasmuch purpose plain. under the pre-existing jurisdiction of the constitution the provisions and of the limited in criminal supreme court district courts of was appeal cases ‘to of law alone’ it was incumbent these questions upon [citation] courts to reverse which any judgment proceedings conviction based upon were in any degree affected substantial of law. . . . error [W]here [the error trivial right] was not or could have a substantial . . . and prejudiced . . . was one which turned the might might against or not have scale defendant, the limitation of the to of law appellate jurisdiction questions courts from the evidence precluded reviewing weighing purpose forming whether the had had in fact opinion injury. error or not worked fact, no Having jurisdiction matters of the court which the was appeal pending was bound to the doctrine that was apply prejudice presumed follow from substantial (People O’Bryan, supra, error." 165 Cal. at pp. Sloss, (lead J.).) opn. by on, the new
“By constitutional Justice went “the provision,” Sloss appel- cause, late courts are examine empowered including ‘the entire error, evidence’ are to affirm the if required judgment, notwithstanding ” ‘in error has not resulted miscarriage justice.’ (People O’Bryan, Sloss, (lead 165 Cal. at J.).) italics original opn. by “What, then,” Sloss, asked Justice justice? “is miscarriage phrase a general one and has yet meaning.” (People acquired precise Sloss, O’Bryan, supra, (lead J.).) 165 Cal. at do not opn. by “[W]e understand that the amendment question designed repeal abrogate guaranties accorded persons accused of crime other parts the same constitution or to overthrow all rules of procedure statutory *48 Sloss, (Id. (lead J.).) at “But it by evidence in criminal cases.” p. opn. even right necessarily follow invasion of a constitutional every does not court, the ‘entire examining It well be that after a reversal. requires of, evidence,’ is error including opinion complained cause of character, The mere a of miscarriage justice. whatever its has not resulted of of the assignment upon fact that the error is based constitution provision opinion appellate upon is not conclusive. The final test is the of the court Sloss, J.).) (Id. (lead at opn. result of the error.” 66 p. by constitution,” Sloss, according “Section 41/2of article VI of our to Justice “must given at the effect rule that abrogating least old prejudice presumed from duty of law. Where error is shown is the any error court to examine the whether evidence and ascertain from such examination the error did or did not in fact work The mere fact error does any injury. not make out prima case for reversal which must be overcome facie clear showing (People supra, that no could injury O’Bryan, have resulted.” v. Sloss, at (lead J.).) Cal. 65p. opn. by facts, former
Applying section 4Vzto the Sloss that the Justice concluded erroneous admission of the grand defendant’s had not “result- jury testimony ed in a miscarriage of justice,” essentially because material matter “[ejvery evidence, covered testimony] was to the [the shown other which jury by admissible, was concededly and the of which was truth not contradicted.” (People Sloss, O’Bryan, v. supra, (lead J.).) Cal. at pp. opn. by Let us out step O’Bryan for the Having moment. ourselves briefly reviewed the relevant we history, are to conclude compelled that Justice First, Sloss’s statements are best at We need recall dubious. two facts. only 4¥i, four almost prior decades to the addition of former section we had conducted analysis, harmless-error and had done without so any “presump Nelson, 82; tion (See, of prejudice.” e.g., People supra, v. 56 Cal. at p. Barnhart, Clark, People 384-385; v. supra, 59 People supra, Cal. at v. Second, p. Cal. at same we during that had conducted such period, cause, analysis by means of an of “the including examination entire (See, Brotherton, People 403-405; evidence.” e.g., v. supra, 47 Cal. at pp. Chuck, People 321; Lee supra, Nelson, v. 78 Cal. People supra, v. 425, 429; Dolan, Cal. 319; at pp. People v. supra, People 96 Cal. v. 386-387; Greening, supra, Daniels, 102 Cal. at pp. People supra, 105 Cal. 265; Clark, 38-41; at p. supra, 106 Cal. at pp. People v. Barthle man, 15; 73; 120 Cal. at p. People Wynn, supra, 133 at p. Cal. Glaze, 160-162.) 139 Cal. at pp.
In attempting 4Vi, to determine the “general former purpose” of section let us the arguments look to Senate proponents proposed Constitutional Amendment No. which added the provision to the California Constitu- tion.
“The object this amendment is to enable our courts last resort to sustain verdicts criminal cases unless there has been a miscarriage or, justice, it in putting another its way, is to render it purpose unnecessary for the higher grant courts to the defendant in a criminal case a new trial for errors. It is unimportant designed to meet the of common ground complaint *49 that criminals justice (Ballot escape through technicalities.” Pamp., Proposed Amends, Const, to the Cal. with legislative reasons for and against adoption, (Oct. Special 1911) Statewide Elec. Ballot Pamp.], [hereafter reasons for accord, adoption id.., of Sen. Const. Amend. No. 26 by Boynton; Sen. A. E. reasons for adoption of Sen. Const. Birdsall.) Amend. No. 26 Sen. E. S. by
“. . adjective . branch of our law [T]he has not with the kept pace development of substantive law. The trial of a criminal is so about hedged with technicalities that it has grown almost to convict impossible one whose wealth is sufficient him to enable to employ counsel skilled in the technique of criminal law. Thus there has grown up systems two of law—one for poor, other for the rich. The pauper prisoner subjected to the iniquities evidence, of the ‘third degree’ to secure him from incriminating while the defenders, one wealthy is surrounded aby of whose corps skill barricad- their ing client behind technicalities is commensurate usually with the fees (Ballot secured.” supra, Pamp., reasons for Sen. adoption of Const. Amend. No. by Sen. A. Boynton.) E.
“. . . The reversal of the just conviction of a guilty man upon purely technical errors is the prime cause of want of confidence our courts.” (Ballot supra, Pamp., reasons for of Sen. adoption Const. Amend. No. 26 by Sen. A.E. Boynton.)
In view of the foregoing, the “general of purpose” former section 4!/a was simply to constitutionally preclude reversals in criminal cases by appellate courts, and the attendant loss of public confidence the criminal justice when system, the errors committed at trial were “unimportant” or “purely technical.” intent,
Informed with such an the constitutional provision shows itself inapplicable stated, to the admission of a coerced confession. As a confes- sion is evidence sui generis, being substantially extrajudicial plea guilty. confession, The course, admission of a coerced is neither “unim- Rather, nor portant” “purely technical.” it is a defect profoundly grave going to the very heart of a Constitution, criminal trial under the California which is not trial as one at which a coerced confession a “fair” defines effectively made They the measure as much. suggested admitted. proponents aimed “wealthy against [prisoner],” section 4!/a that former plain defenders, their barricading skill whose by corps who “is surrounded secured.” commensurate with the fees usually technicalities is client behind Amend. No. 26 of Sen. Const. (Ballot adoption reasons Pamp., with the nothing “pauper that it had to do They Sen. A. E. Boynton.) implied “is subjected the defendant case—who very prisoner”—like him evidence incriminating to secure from degree’ ‘third iniquities (Ibid.) . . . .” even reach rule of our
It follows that the constitutional does provision a coerced confession. automatic reversal for admission of True, the the measure criticized the so-called “presumption proponents Const. (Ballot of Sen. adoption reasons for prejudice.” Pamp., id., Sen. adoption Amend. Sen. A. E. reasons for Boynton; No. *50 in the Birdsall.) did only Const. Amend. No. 26 E. S. But so by they Sen. (Id., reasons context of errors that are or technical.” “unimportant” “purely accord, for of Sen. Amend. No. Sen. A. E. by Boynton; Const. adoption id., Sen. E. S. by reasons for of Sen. Const. Amend. No. 26 adoption Birdsall.) rule, our which does
Had of the measure desired to affect proponents an technical” error but “presume prejudice” “unimportant” “purely the very automatic reversal for a defect requires profoundly grave going trial, heart of a criminal have some indica- they undoubtedly given would tion. did searched back They easy. They not. To do so would have been Stanley, in” People almost 40 to assail the “doctrine announced v. years supra, 47 Cal. “that error in the admission of ‘every testimony ” (Ballot to be unless the presumed injurious contrary clearly appears[]’ supra, Sen. Pamp., reasons for of Sen. Const. Amend. No. adoption dead, Birdsall)—even having E. S. though Stanley long was short-lived Brotherton, only been overruled 47 Cal. effectively supra, a few they months after it was decided. could not have missed Certainly, People Loper, year 159 Cal. which had been handed down not There, earlier. we held that the confession was admission of coerced reversible even on the “the had a case assumption prosecution perfect that confession,” i.e., without “the evidence this case was so complete him without confession of the defendant that the would have found jury (Id. even if the had guilty entirely been omitted.” fair, To be Justice Sloss did miss what of “miscarriage not completely under justice” former section 4Vi “When we speak might comprehend. cases, administering ‘justice’ criminal under the or American English we mean system procedure, something more than merely ascertaining whether an accused is or is not It is an guilty. justice essential that the part or innocence shall determined question guilt orderly be legal in which the procedure, substantial shall be rights belonging defendants Sloss, (People O’Bryan, supra, (lead respected.” 165 Cal. at 65p. opn. by 1).) Sloss, “For said Justice “if a example,” court should undertake to deny charged defendant with a trial felony right by jury, and after a conviction, of the evidence hearing render a judgment cannot be doubted that such should be even judgment set aside there had been though the clearest proof guilt.” (People O’Bryan, Cal. at Sloss, (lead J.).) opn. by “Or,” on, defendant, he went “if a having been once acquitted, after convicted, again
should be brought to trial and thereupon disregard of his plea that he had been once it would jeopardy, hardly suggested because he inwas fact no had guilty, ‘miscarriage justice’ occurred.” (People v. O’Bryan, supra, Sloss, (lead J.).) 165 Cal. at opn. by
Or—we add—if a might court should receive evidence a defendant’s confession, coerced it cannot be conviction questioned any ensuing should be overturned notwithstanding guilt beyond a reasonable proved doubt.
This is because the harm caused each of the three errors—denial of trial, jury of a in rejection of once and admission plea of coerced jeopardy, the confession—is of in the undermining fairness contest between the gov- and, ernment and the individual ultimately, legitimacy of the criminal justice system itself. Such harm can cured reversal. only by
“. . . When a defendant has been denied essential element of a fair any trial or due which process,” must include the state surely constitutional privilege against self-incrimination and the related rule barring admis- confession, sion of a coerced “even the saving broad of section provisions 41/2 of article VI of our state Constitution cannot the vice and the remedy judgment cannot stand.” (People v. Sarazzawski (per curiam).) P.2d “The fact that 934] a record shows a defendant to be guilty of a crime does not determine necessarily that there has been no (People Mahoney miscarriage of justice.” v. 201 Cal. 627 (per curiam).) P. 607] O’Bryan.
Let us now return his Justice concurring opinion, Lorigan with agreed Justice Sloss’s result with affirming disagreed but judgment VI the consti 4Vz article of of section his views “as to construction O’Bryan, (People evidence.” under the and its application tution J.).) opinion He was “of (conc. Lorigan, Cal. at opn. in necessarily is of this section construction nor application neither the and, therefore, upon the discussion this appeal, disposition volved (Ibid.) . . . .” obiter was, in the opinion, out “It Lorigan pointed [lead] Justice continued: the state in evidence on behalf of have admitted error for court to This was jury. the grand made the defendant before statements to ‘be compelled the defendant not right of the constitutional violation ” O’Bryan, (People himself.’ criminal case to be a witness against J.).) (conc. Lorigan, Cal. at opn. 69p. error, auto require Lorigan suggested, might generally Such an Justice reversal, had “If the defendant matic section 4Vr. notwithstanding former had in his own behalf but become a witness on the trial subsequently evidence of those stood the error of the court squarely upon permitting statements, of a I this violation just say against am not now to prepared could be interposed.” constitutional the section of constitution right J.).) (conc. Lorigan, (People O’Bryan, supra, opn. 165 Cal. at 69p. reversal, concluded, in this was not required Automatic Justice Lorigan He did the error. became upon case: the defendant not stand “[H]ere testimony and gave to its admission a witness his own behalf subsequent in chief cross- attorney upon such matters as warranted the district upon made which he had covering concerning examination all matters justified statements before the This grand jury. attorney district the defend testimony him as to all matters and the cross-examining these he made ant them was a reiteration of the statements respecting substantially (conc. Cal. at (People O’Bryan, supra, before grand jury.” J.).) opn. Lorigan,
Therefore, “general Justice what controlled was the Lorigan proceeded, long given rule” of “to which this court since has analysis, harmless-error Brotherton, . . .” succinct utterance ... in v. 47 Cal. 404. “[Wjhatever was cured error was committed the court the first instance by elicited the same matters. by testimony covering this subsequently properly original by subsequent character as error was obviated prejudicial rule which has general evidence of the defendant and under the confirmatory here be success obtained the error became harmless and could not always O’Bryan, supra, (People invoked defendant to obtain v. fully a reversal.” (conc. J.).) Cal. at p. opn. Lorigan, “This the Lorigan being general to his Justice stated: Returning beginning, made, it is amendment referred to was rule before constitutional applied amendment, and the assignment now since directly applicable rule and in my without merit virtue of the general as error was ruling therefore, construe or amend unnecessary apply it is obiter to opinion, 165 Cal. (People O’Bryan, supra, ment in of this error.” v. disposing alleged (conc. J.).) Lorigan, p. opn. O’Bryan, In the after we revisited the of the construction years question decision. major of former section 4xh one only application Watson, his supra, opinion Justice Spence, one, court, he did In all save respects for the addressed former section 4V2. O’Bryan. The excep- little more than follow Justice Sloss’s lead opinion general tion was this: he articulated what was to become the standard under due con- “Giving harmless-error the constitutional analysis provision. relating to the heretofore varying language employed sideration involved,” stated, he “it constitutional amendment situations particular That a that the test be stated as follows: appears generally applicable may court, should be declared when the ‘after ‘miscarriage justice’ only evidence,’ cause, examination the entire is of the including ‘opinion’ the appealing that it is that a result more favorable to reasonably probable (People would have been reached the absence of the error.” party Watson, 836.) supra, Cal.2d p.
Three bear points emphasis. First, 4XA Justice did not hold that former section Spence’s opinion errors, the “test” precluded merely automatic reversal for certain but stated that was when harmless-error “generally applicable” analysis appropri declared, “[Cjertain ate. fundamental he “are rights,” guaranteed evidence, defendant which he can insist of the state of the upon regardless such as the to a under the right jury right trial and the to protection plea Watson, (People once . . . .” 46 Cal.2d at jeopardy Second, Justice did not hold that former section 4V2 Spence’s opinion mandated the so-called “test” only “reasonable standard as probability” that could be when harmless-error but employed analysis appropriate, defined that simply “generally standard as ‘test” that was applicable.” Watson, word, (People added.) In 46 Cal.2d at italics *53 any constitutional does not or provision “expressly impliedly mandate[] kind standard of kind of error in specific prejudice any proceed Brown, Mosk, J.).) (People supra, (conc. 46 Cal.3d at ing.” opn. p. Third, did not raise Justice Spence’s opinion and most important, alongside former to constitutional status standard “reasonable probability” a the constitutional gloss provision. on merely That test is section 4Vz itself. Watson, 834-837.) Cal.2d at (See People dissent, Watson, Carter, Spence’s with Justice disagreed In Justice former section 4Vz. and application as to both the construction opinion me”—and, obvious to noted: “It is perfectly One of his comments should be indeed, matter any who give obvious to all it should be perfectly VI 4Vz of article the framers of section concept consideration—“that the or jury that technical errors instructions of our Constitution was or procedure evidence or errors rejection pleading the admission or relied upon case not be which could not affect the result should Watson, judgment.” (People for the reversal of a ground Carter, (dis. J.).) at p. opn.
In that the construction and appli- view of the we must allow foregoing, now section 13 cation of what was section 4Vz and what is formerly can at least arrive at this hard to determine and with But we fully precision. intended to or abrogate conclusion. The constitutional was not provision rule admission of a coerced obviate our of automatic reversal for the a reversal constitutionally confession. It was designed simply preclude technical”—unlike when the error is or question “unimportant” “purely confession, which defect profoundly grave introduction of a coerced going to the heart of a criminal trial. very
In concluding to the make several contrary, majority missteps to be fatal. prove serious,
First and most that what was recognize fail to majority intended even to formerly section 4Vz and what is now section 13 was not reach rule little attention to the our of automatic reversal. too They pay context, and background constitutional words and its historical provision’s O’Bryan. much The fact too attention to Justice Sloss’s lead opinion render it that several have cited that does not decisions subsequently opinion sound. Perhaps provi- was “clear” to Justice Sloss that constitutional sion well errors . . . .” “applies to constitutional as as to nonconstitutional or, ante, 501.) It clear more (Maj. opn., Lorigan was not to Justice measure, forgive to the of the intended it to significantly, who proponents errors, technical” which constitutional “unimportant” “purely among addition, defects do figure. many recognizing not seem to our decisions rule of automatic reversal did sight purpose principal “los[e] Rather, significance” constitutional provision. {Id. *54 never to have in the majority themselves of such matters appear caught sight first place. serious,
Second and as without basis that a perhaps majority assume criminal even if trial can be deemed “fair” under the California Constitution a coerced charter confession admitted. framers of state Surely would be The against state constitutional self-incrimina- surprised. privilege tion and the related rule barring the admission of a coerced confession define a trial “fair” if effectively as it is without such taint. the lead only opinion O’Bryan, Justice Sloss was on one “When certainly right point: cases, we in criminal under the speak administering ‘justice’ English American we mean than system procedure, something merely more whether ascertaining an accused is or is not It is an essential guilty. part an justice or innocence shall be determined question guilt orderly legal which the substantial to defend- procedure, rights belonging (lead respected.” (People O’Bryan, supra, ants shall be 165 Cal. at 65p. Sloss, J.).) opn. by rights” It appears beyond “substantial question include the against self-incrimination and that privilege “orderly legal pro- cedure” does not allow the introduction of a coerced confession.
Third, and related to the as majority treat confession preceding, evidence, though it were to harm- “ordinary” long subject which has been course, stated, less-error Of analysis. it is not. As a confession is evidence sui generis, being substantially extrajudicial plea guilty.
Fourth, the consider our rule automatic majority, purporting to rationale, reversal and nothing its set and knock down what is actually up more than a straw man. stated,
As rule with which we are automatic requires concerned reversal for the admission of a coerced But the confession. rule that choose to attack is the derivative and majority broader one that treats reversible se introduction the United per violative of States Constitution. confuse the their majority Contrary impli- two. cation, 1, ante.) (See the latter rule is not at issue this matter. fn. the rationale our rule
Similarly, of automatic reversal for the admission aof coerced confession rests on the of fairness the contest between policy individual, and the government which underlies the state constitutional privilege against self-incrimination and the related rule the admis- barring sion aof coerced confession. But decide the rationale that the majority criticize on depends considerations the inherent force regarding evidentiary such, of confessions as which is not associated with the rule at substantially *55 to their Contrary implication, The confuse the two rationales. majority issue. referred are not coerced-confession the considerations to above prominent 605-606; Jimenez, People (See, supra, 21 Cal.3d at e.g., People pp. cases. v. Brommel, 571; Sanchez, supra, v. 56 Cal.2d supra, People v. 70 Cal.2d at p. Berve, 634; Trout, 585; People supra, v. People supra, v. 54 Cal.2d at p. p. 20; 290; People Cal. at v. People Loper, supra, 51 Cal.2d at v. p. p. 455; Barric, 345; Johnson, supra, 41 Cal. at People p. 49 Cal. at p. Matteson, How, 223-224; People People v. Ah 34 Cal. at but see pp. [dictum].) supra, 61 Cal.2d at p.
The majority’s confusion of rules and rationales is manifest.
Their
discussion focuses
on
v. Schader
largely
extensively
(hereafter
(1965) 62 Cal.2d
401 P.2d
728-731
Cal.Rptr.
665]
Schader),
(1965)
sometimes
including People
its
v. Jacobson
progeny,
(hereafter
some-
405 P.2d
Cal.Rptr.
555]
confessions,
Jacobson).
times
did
but
These decisions
not involve coerced
instead statements
defendant’s Sixth
obtained
violation of a criminal
(5
Amendment right to counsel as enunciated in the then “new doctrine”
Trial, 2676,
3215)
(2d
1989)
Witkin &
Cal. Criminal Law
ed.
Epstein,
§
1758],
of Escobedo v. Illinois
Schader is the any source of the rule that the introduction of violative United States Constitution is reversible se. It per employed as its foundation the rule requiring automatic reversal for admission of coerced It confession. to extend that rule into the derivative and proceeded so, broader rule referred to above. it did not on the nature of doing rely underlying violation. reason is manifest: as the admission explained, of a coerced confession is defect to the heart profoundly grave going very trial; of a criminal the introduction of a statement offensive to Escobedo and Rather, Dorado is not comparable. Schader used as its rationale the fact that such—that, words, evidentiary force inheres confessions as its own any “confession kind operates as a bombshell which evidentiary shatters Schader, defense” (People 731). supra, 62 Cal.2d at Jacobson followed (See Schader regard, recognizing rule and its rationale. Jacobson, supra, 329-330.) 63 Cal.2d at It Schader in distinguished also terms, that, accordance with its own facts concluding peculiar on case, two particular statements obtained” under Escobedo and “improperly Dorado “were . . . cumulative” merely obtained state- eight properly (Id. ments. at p. confusion,
As a result of their in effect the rule majority not challenge of automatic reversal for the admission of a coerced rather the confession but derivative and rule broader that the introduction of confession violative the United States are they Constitution is reversible se. Whether per stated, successful—a dubious not. the latter rule is proposition—matters As issue, Moreover, rule only former. the latter fall without taking down former. *56 to hide their confusion of rules and rationales—from majority attempt both, I
themselves or from others or from that declaring cannot say—by “there is in . . nothing . . . . decision of this court that any supports ante, . . . 15.) distinction” set out above. at fn. (Maj. opn., p. Can the majority mean that the rule of automatic reversal for the possibly admission of a coerced confession was not extended Schader into the derivative and any broader rule that the introduction of confession violative of the United States is Schader Constitution reversible se? itself belies per Schader, (See 728-731.) such People supra, claim. v. 62 Cal.2d at pp.
Or can the mean the rule of majority that rationale of possibly automatic reversal for the admission a on the coerced confession rests evidentiary force that inheres as such? such claim Any confessions Schader, founders on decided coerced-confession cases both before and after Jimenez, 595, 605-606; including People supra, People v. Cal.3d v. Sanchez, 562, 571; Brommel, supra, Cal.2d People supra, v. 56 Cal.2d 634; Trout, 576, 585; Berve, People supra, People v. v. supra, Cal.2d 286, 290; Barric, 6, 20; 51 Cal.2d People Loper, People v. supra, 159 Cal. v. 342, 345; Johnson, 452, 455; supra, People 49 Cal. v. supra, Cal. How, People supra, v. Ah 223-224. Cal. cases,
Among coerced-confession in this only apparent exception Matteson, as it regard—such is—is our decision in v. pre-Schader People There, supra, 61 Cal.2d 466. we concluded that admission of coerced (Id. 469.) confession required automatic reversal. at We also concluded p. that the error was not cured trial court’s the confession and striking “In admonishing jury disregard it cases entirely. involving involuntary accused,” reasoned, statements of we “the of other evidence of weight is not guilt Incriminating tongue considered. statements own from defendant’s persuasive are most evidence his guilt, part they play securing Parham, (See People conviction cannot be supra, determined. reason, 385.) For same an admonition or an instruction to the jury disregard statements does not cure the erroneous involuntary incriminating Matteson, admission of such (People supra, statements.” 61 Cal.2d at p. added.) italics To extent that the majority imply that italicized dictum Matteson ante, 494), is somehow of coerced-confession cases “typical” (maj. opn., p. even review of the cursory turn on its head. This they reality language, demonstrates, To claim altogether atypical. cited coerced-confession cases otherwise is to revisionist indulge history.
One final Our rule indeed our rule. of automatic reversal is point: It arose more than a hundred the United years ago without citation to (See, People States Constitution or construing e.g., decisions instrument. How, Johnson, 223-224; supra, v. Ah 34 Cal. at Cal. 455; Barric, 49 Cal. Moreover, it came full well year, stature before 1967. It was only decision, in its Chapman landmark that the United States Court Supreme *57 trial, declared that the in question reversibility for error a state criminal dimension, even error of federal constitutional was than governed other (See state Chapman law. 22-24 California, supra, 386 U.S. pp. [17 709-711]; see, L.Ed.2d at pp. id. at 45-57 L.Ed.2d at generally, pp. pp. [17 Harlan, (dis. J.).) opn. 722-729] Prior to that time it commonly believed, apparently, that the issue was one of state law. that was Certainly (See, 820, our belief. e.g., People (1965) v. Bostick 62 Cal.2d 823-827 [44 649, 529]; 32, Cal.Rptr. 402 P.2d People (1967) v. Powell 67 Cal.2d 56 [59 817, P.2d Cal.Rptr. 429 we [implying Chapman before believed 137] V, that “our inquiry” was “limited” to “article section of our Constitu- tion”]; see Chapman also v. California, supra, 386 U.S. at pp. [17 Harlan, L.Ed.2d at (dis. pp. J.) opn. that “California [implying 725-727] courts” had applied “California rule in harmless-error . . . incorporated that State’s constitution” to errors of federal constitutional dimension as well sure, law].) as those of state To be in our rule has its latter days become adorned with citations to federal constitutional and decisions provisions relating thereto. But it is simply not compelled by any of them.8 The majority recognize that our rule of automatic indeed reversal is our Here, rule. they do no more than bow to necessity. People Boyer (1989) 8In 610], 247 768 P.2d we discussed “ in dictum the “rule” followed in California improper ‘the of a introduction confession [i.e., a declaration of defendant’s participation intentional in a criminal is considered act] [citations], per reversible se wrongful [i.e., whereas introduction of an admission the recital of tending facts guilt to establish when remaining considered with the evidence in the is case] prejudicial deemed unless People beyond show a reasonable doubt that the error com plained 279-280, of did not (Id. contribute to the verdict. ....’” at pp. fn. [Citations.] italics, brackets, material, bracketed and ellipsis original.) in We stated: “This California distinction, law, never expressly divorced from federal is light doubtful in of Rose v. Clark (1986) 478 U.S. 570 (Id. 106 S.Ct. fn. The “rule” that 3101].” we discussed in Boyer is not our rule of automatic reversal for the admission of a coerced confession, but rather the derivative and broader any rule that the introduction of confession however, violative of the United States By Constitution is reversible per happenstance, se. language some of our Boyer proves in applicable here. Our rule of automatic reversal was rule, diminish the of our authority majority But effort to apparent Berve, People only years ago seek to show that it arose stated, the rule back goes Cal.2d 286. The falters on the facts. As attempt This is not to merely well not three one-half decades. century, over restated, Watson, we did not that Berve but deny peculiarly significant. is invent, Simi- analysis. rule of harmless-error long-established general restated, Berve, later, did which was decided two we but only years larly, invent, for the admission of coerced long-established exception not confession. we Berve assertion that before
Certainly, majority’s period analysis the admission of coerced confessions to harmless-error subjected ante, 14) & fn. “each” of “numerous” decisions (maj. opn., A review of the what most be labeled an overstatement. brief charitably cite they cases proves point.
Thus, 251], (1944) P.2d People v. Cal.2d 870 [151 Gonzales 722], v. Ferdinand Rogers Cal.2d 787 P.2d 341], Cal. 555 we did even consider whether to apply P. our rule of automatic reversal because we did not find Rather, Gonzales, held harmless the have been coerced. we simply *58 refusal an that the was to determine jury erroneous instruction Gonzales, 24 (People voluntariness of the defendant’s confession. 877-878.) In delicti Rogers, Cal.2d at we found an instruction on pp. corpus 806-808)— 22 Cal.2d at (People Rogers, supra, to be error prejudicial noting challenged” “admissibility” that the defendant had “not expressly whether any ground ruling of his confessions which as to “upon required made, did had been and the trial they freely voluntarily judge evidently Ferdinand, (id. 798). In we held not determine this of his own motion” at p. what we defense permit harmless assumed to be the erroneous refusal to to examine a dire concerning counsel witness on voir circumstances Ferdinand, supra, (People confession of one of defendants. 565-570.) Cal. at pp.
In
801]—contrary
v. Jones
Cal.2d 601
P.2d
to the
[150
reversal,
assertion—we did indeed
a rule of automatic
but
majority’s
apply
that of the United States Constitution and
California law. At
apparently
not
therein,
facts,
our
we
beginning
relating
discussion
after
observed
that the evidence
“clearly
other than the defendant’s confession was
insuf-
end,
604.)
ficient” to establish
at
But at the
before
guilt.
p.
proceeding
{Id.
“
we held:
‘The Constitution of the United States stands as a bar
disposition,
divorced from federal
(Italics added.)
expressly
indeed “never
law.”
That
is because it
never married to it in the first
place.
in American Court means of
by
the conviction of
individual
against
”
(Id.
v. Tennessee
confession. . .
at p.
quoting
coerced
Ashcraft
921].)
(1944) L.Ed.
64 S.Ct.
U.S.
contrast,
330],
In
we
v. Stroble
In a related effort to diminish the
authority
majority
of our
effectively criticize Berve and its
progeny
discussing
allegedly
our
“numerous” decisions subjecting the admission of coerced confessions to
*59
shown,
harmless-error analysis. But as
there was
practically nothing
course,
Stroble,
discuss. The exception,
is
supra,
III. Fulminante and Its Effects ante, at (maj. opn., What the label an majority “appropriate opportunity” auto- 500) the California rule of for their ill-conceived abandonment of what matic of a coerced confession—but reversal for admission Supreme the United States fact a convenient excuse—is perhaps merely Fulminante, The 279. 499 U.S. Court’s recent decision Arizona that demand close examination. reasoning and result of case our Fulminante, the first degree the defendant was indicted Arizona for Superior murder Prior to trial the Arizona 11-year-old stepdaughter. of his Court, made that ground he moved to a confession he had on suppress under the United rights because coerced violation of his inadmissible Constitution, the Fifth Amendment including privilege States effectively was then He was unsuccessful. The confession against self-incrimination. convicted of first degree admitted at trial. defendant was subsequently murder Court Supreme and sentenced to death. On Arizona appeal, federal It held in fact contrary reversed. confession was coerced held under that same law its admission constitutional law. It also automatic reversal. required certiorari, discussion
On the United States Court affirmed. Its Supreme facts; whether the confes- consists of four parts: description coerced; under because sion was inadmissible the United States Constitution *60 (3) automatically whether the remains admission of coerced confession under the federal charter is to be to harmless-error subject reversible Chapman', (4) of the confes- analysis pursuant to and whether admission sion there prejudicial.
The and divided. Justice fragmented Fulminante court was widely deeply (1) delivered which the description White an was for the court as to: opinion, facts, Marshall, Blackmun, Stevens, Scalia, and which Justices (2) that the Kennedy joined; the conclusion confession was fact inadmis- coerced, under the sible United States Constitution in which Justices because Marshall, Stevens, Blackmun, (3) Scalia joined; and and that holding admission of the there was Mar- which Justices prejudicial, shall, Blackmun, Stevens, and Chief Justice Kennedy joined. Rehnquist delivered an which was for the opinion, court as to the conclusion admission of a coerced reversible confession is no longer automatically under the federal charter analysis, but is henceforth to harmless-error subject O’Connor, Scalia, in which Justices Justice joined. and Souter Kennedy, White filed an rule opinion dissenting from purported abrogation reversal, Marshall, Blackmun, of automatic in which Justices and Stevens coercion, joined. Chief Justice filed an Rehnquist dissenting as to opinion O’Connor, which Justices He filed Kennedy, joined. Souter also opinion dissenting which prejudice, Justices O’Connor Scalia joined. Justice filed an Kennedy in the ex- opinion concurring judgment, he plaining why joined which parts foregoing opinions, including his views to the effect that there was but no error. prejudice
The first question that arises is whether Chief Justice Rehnquist’s opinion purportedly abrogating federal rule constitutional of automatic reversal controls the issue before this court. The answer is negative.
What we shall assume to be the “authoritativeness” of Chief Justice Rehnquist’s opinion extends to the only United States Constitution. The area, determination here course, concerns California In law. we are the final (Cf. arbiters. Superior Allen v. Court 557 P.2d Constitution ‘a 65] document of [“[0]ur [citations], independent court, force’ ‘whose construction is left to this informed but untrammeled United States Court’s Supreme reading parallel federal provisions. ”].) We must shoulder the [Citations.]’ responsi- Stevens, (See bility. Rights: Bill A Century Progress 59 U. Chi. L.Rev. 16 fn. 9 [implying that “state courts” supreme may “look to their state constitutions” and statutory and decisional law “to hold that ‘a coerced confession may so infect the trial process its admission into evidence demands reversal’ and that the admission of a coerced confession is not subject to harmless error analysis”].) however, that, passing, we may observe at first glance, “authorita-
tiveness” of Chief Justice Rehnquist’s minimal. The opinion appears weight to be accorded to his views must be reduced—to borrow words he wrote another case—by reason of the fact that they “by narrowest of prevailed margins, over spirited [a] basic challenging underpinnings dissent[] the[ir] *61 546 _ _, U.S. L.Ed.2d (1991) 501 Tennessee (Payne [115
. . . v. his 737-739, J.).) The weight C. Rehnquist, 111 (per S.Ct. 2611] have they criticism strong further because must be reduced still views Harm Fulminante: The (See, Arizona v. Ogletree, e.g., justifiably provoked. Harv. L.Rev. 105 Harmless Error Coerced Applying Confessions 152, 152-154, Ogletree].) 161-175 [hereafter that the “authoritative- to realize more we come closely, When we look The nonexistent. actually is opinion Justice Rehnquist’s ness” of Chief discussion, judg- the court’s unnecessary to manifestly which is relevant much, ment, making admitted The Chief Justice later expressly is dictum. J., Court Major Supreme C. Review of virtue of necessity. (Rehnquist, Decisions—October, Judicial Confer- 1991) (June Sixty-first Term 1990 I, Circuit, [conceding 19p. vol. Judges ence for United States of the Fourth [sic]”].) that the dicta “may technically discussion Rehnquist’s Chief Justice is whether second that arises question too, the answer Here before this court. as to issue opinion persuasive is negative. automatic rule of the federal constitutional abrogating purportedly
reversal, assumes that foundation that lays Chief Justice Rehnquist reliability with the only is concerned United States Constitution legitimacy at all with individual criminal trial and not outcome of an Fulminante, supra, 499 (See v. criminal itself. justice system Arizona 330-331, 111 at (opn. at S.Ct. p. 1264] U.S. at 308 L.Ed.2d pp. p. [113 result, J.).) As a he builds on sand. C. Rehnquist, rule federal constitutional then that the suggests Chief Justice Rehnquist existed, Chap- existed since never or at least has not of automatic reversal Fulminante, L.Ed.2d at U.S. at (See supra, p. man. v. [113 Arizona 330-331, J.).) The implica- C. Rehnquist, 111 S.Ct. at (opn. pp. 1264] harmless- from Chapman excepted Recall that astonishing. expressly tion is confession, Payne. citing a coerced error the admission of analysis L.Ed.2d at p. at 23 & fn. 8 (Chapman California, supra, v. 386 U.S. [17 U.S. Twomey,supra, 404 710].) Lego was Chapman impliedly by followed Arizona, 623-624], supra, Mincey at L.Ed.2d at page pages Portash, 303-304], Jersey New at U.S. at L.Ed.2d page pages 510]; it was followed at L.Ed.2d at page page 440 U.S. 459 [59 footnote Hasting, supra, page United States v. 461 U.S. expressly 105-106], adhered to Chapman Recall also that pages in, Clark, U.S. at (Rose pp. fact reaffirmed Clark. by, out to Justice sets 470-471].) 577-578 & fn. 6 L.Ed.2d at The Chief
547
for the
Payne
is dictum and that
does not stand
Chapman
propo-
show
facts,
(See
yield.
He runs
the
which do not
squarely
sition cited.
into
Arizona
318-319,
Fulminante,
111
pp.
On one there is what he ‘trial during labels which “occurfs] of the presentation may case to the and which therefore be jury, assessed ... determine was harmless quantitatively order to whether [it] Fulminante, beyond (Arizona doubt.” U.S. at supra, pp. reasonable 499 330-331, 307-308 L.Ed.2d at 111 of (opn. S.Ct. at pp. p. [113 1264] Here, J.).) Rehnquist, C. of coerced assertedly, belongs admission ” confession, (Id. a “classic ‘trial at L.Ed.2d at pp. 309 p. error[.]’ [113 330- 111 at J.).) S.Ct. of p. C. (opn. Rehnquist, 1264] other, On the there are what he calls “structural the constitution defects mechanism, trial which defy analysis ‘harmless-error’ standards.” (Arizona Fulminante, at 499 U.S. L.Ed.2d at pp. pp. 309-310 [113 Here, 331- 111 S.Ct. at p. J.).) C. (opn. Rehnquist, assertedly, 1265] alia, trial,” belong, inter the “total deprivation right to counsel at participation of a “judge who was not impartial,” “unlawful exclusion of members defendant’s race grand from a denial jury,” “right trial,” to self-representation at and the deprivation “right to public (Id. 331-332, trial.” 310 at p. L.Ed.2d [113 S.Ct. at pp. at p. (opn. 1265] J.).) C. Each Rehnquist, of these flaws “entire conduct of “affect[s]” the trial from to end” beginning or the which “framework within the trial proceeds.” (Id. 331-332, at p. L.Ed.2d 111 S.Ct. at pp. p. 1265] “ J.).) (opn. C. Rehnquist, ‘Without these basic a criminal protections, trial cannot reliably serve its vehicle function as a for determination of guilt or innocence, and criminal no punishment may regarded be as fundamentally ” 331-332, (Id. fair.’ at p. L.Ed.2d at pp. at p. S.Ct. (opn. 1265] J.), Clark, of Rehnquist, C. quoting without internal citation Rose 478 U.S. at pp. 470-471.) pp.
Chief Justice Rehnquist’s (Arizona crucial distinction “fails.” v. Fulmi- nante, supra, 319-320, U.S. at p. L.Ed.2d at 111 S.Ct. at White, (dis. noted, J.).) opn. 1255] dichotomy, His “has no support precedent.” (Ogletree, supra, 105 Harv. L.Rev. at And that is the least of its weaknesses. *63 with, does not work. of an simply The omission begin
To the distinction a doubt beyond burden of reasonable proof instruction on the prosecution’s ” is, words, (Arizona ‘trial v. a “classic Chief Justice Rehnquist’s error[.]’ 330-331, Fulminante, 111 S.Ct. 309 L.Ed.2d supra, at pp. 499 U.S. at p. [113 Nevertheless, J.).) it automatic C. (opn. Rehnquist, requires at of p. 1264] 307, 320, (Jackson (1979) L.Ed.2d Virginia 443 U.S. fn. [61 reversal. 560, contrast, defendant’s 2781].)9 denial of a criminal By 99 S.Ct. as much a “structural surely to be at his own trial is right personally present Indeed, it would as the his to himself. right represent defect” denial of L.Rev. at supra, Harv. (Ogletree, to assert otherwise. credulity” “strain[] same, All is deemed 164.) presence denial of of right personal p. (Rushen Spain 464 U.S. analysis. to harmless-error subject 267, 272-273, curiam).) (per S.Ct. 117-118 L.Ed.2d 453] [78 (Arizona v. “meaningless.” more the distinction is Perhaps important, Fulminante, 318-319, 111 S.Ct. supra, at p. at pp. 499 U.S. L.Ed.2d [113 White, (dis. J.).) clearly “never Rehnquist at of Justice Chief p. opn. 1254] (Ogletree, undermine.” articulates structure that the structural errors fact, “struc at he never articulates that supra, 105 Harv. L.Rev. ture” at all. trial, were, consider, criminal we would
If we it the modem form of a as as “structural great conclude that the admission of a coerced confession is a as, a the same race grand defect” the exclusion from of of say, jury persons as the The latter have effect whatsoever on may any part defendant. no former, however, itself of the “distorts trial aspect process” trial. at 166), seeing substantially Harv. L.Rev. it is (Ogletree, extrajudicial an plea guilty. trial, we
If we of a criminal look more to traditional substance deeply to against would come the same conclusion. The bar admission States, at (see pp. coerced Bram v. 168 U.S. United 573-574]) exclusion of 542-543 and the pp. prohibition L.Ed. (see Virginia v. West grand jury same-race from a Strauder persons coeval, (10 303) 664-666]) U.S. are Otto L.Ed. each dating century. the 19th giving merely of a under the United 9The reasonable-doubt instruction that is “deficient” ” in Sullivan an even ‘trial error.’ arguably
States Constitution is more “classic Yet (1993)_U.S._, _-_ 189], Louisiana Supreme the United Court States Rehnquist Justice concurred in the unanimously requires held that automatic Chief reversal. attempt opinion Writing separately, transparently he unsuccessful court. made square his vote distinction he had earlier created with the “trial error/structural defect” Louisiana, (Sullivan Fulminante. supra,_U.S. pp. _-_ L.Ed.2d at 191-192] (conc. opn. J.).) specious. C. His failure that the distinction is Rehnquist, demonstrates Chief Shorn its Justice discussion analytical trappings, Rehnquist’s evidence; reduces like and the itself to this: confession looks “ordinary” admission of a looks the kind of coerced confession like error however, subject to harmless-error is appropriately analysis. Appearance, stated, being As a confession is evidence sui substan- reality. generis, Further, an harmless-error tially extrajudicial plea guilty. explained, to the analysis designed assess threats outcome of reliability trial; criminal even individual it does not take cognizance injury *64 confession, peculiar to introduction of a coerced which is the undermin- and, ing of fairness the contest between the government and individual ultimately, legitimacy justice of criminal itself. system bottom, manifest, At it becomes Chief a Rehnquist Justice holds “belief is [nothing] there more ‘fundamental’ about confessions” involuntary than about other statements inadmissible under the United States Constitu- tion, which are indeed (Arizona to subject analysis. harmless-error Fulmi- nante, 331-332, supra, U.S. at 499 311 L.Ed.2d 111 S.Ct. at p. pp. p. at J.).) (opn. Rehnquist, 1265] C. We need not engage protracted argu- ment on the point. Our constitutional demonstrates that a history such belief is unsound. truth,” observes,
“The search for as Justice White “is indeed central to our not, be, system justice, but ‘certain constitutional rights are and should not subject to harmless-error analysis because those rights protect important values that are unrelated truth-seeking function of trial.’ [Citation.] The right of a defendant not to have his coerced him against confession used among is those rights, for a using coerced confession the basic trial ‘abort[s] ” and process’ a trial (Arizona *render[s] unfair.’ fundamentally Fulmi nante, 321-322, 499 at U.S. p. at pp. S.Ct. at White, (dis. J.), Clark, opn. 1257] quoting Rose v. U.S. at p. (conc. Stevens, L.Ed.2d at J.) pp. opn. 476-477] id. 578,& 6fn. 470].) L.Ed.2d at p.
Having closely considered we question, must arrive at this conclusion: Chief Justice Rehnquist’s opinion furnishes no principled basis on which to reconsider, abandon, less still our rule of automatic reversal favor harmless-error analysis.
IV. Prudential Considerations moment, Matters aside for the principle we should decline to reconsider abandon rule California of automatic reversal admission of coerced confession because of purely prudential considerations. threshold, suggest VI of the section of article majority
At the taking from such into account. Constitution bars us considerations California provision that the “California constitutional reversible-error They say eliminating approach for the ... adopted specific purpose prophylactic ante, with too broad They paint to reversible error.’’ (Maj. opn., intended abro- provision As was not explained, brush. constitutional reversal for the admission of a coerced gate or obviate our rule of automatic a reversal confession. It was designed simply constitutionally preclude technical”—unlike when the error question “unimportant” “purely confession, defect grave the introduction a coerced which is a profoundly going to the heart of a criminal trial. very reversal
Let us The benefits of our rule of automatic proceed. discarding Few, are if likely judgments conceivably to be low. could quite any, salvaged of harmless-error by application analysis.
We must be clear about one
The standard of
to be
point.
prejudice
applied
Constitution, viz.,
would
Chapman's
of the United States
“reasonable
remains
doubt” test. That is because the admission of a coerced confession
(at
(see
least for the time
error of federal constitutional dimension
being)
Fulminante,
v.
at
supra,
Chapman, it need not be is and emphasized, unforgiving intolerant error. “The California constitutional rule ‘a emphasizes [harmless-error] but the California are in miscarriage justice,’ majority courts”—and ante, (see 508-509)—“have maj. opn., accord at neutralized this to some pp. extent view by emphasis, perhaps court’s overemphasis, upon evidence.’ We ‘overwhelming of this Court prefer approach deciding Connecticut, what was harmless error our recent Fahy case of v. 375 U.S. L.Ed.2d [(1963)]. S.Ct. There we said: ‘The is question 229] whether there is a reasonable that the evidence possibility complained have contributed might Fahy conviction.’ . . . statement [T]his . . . emphasizes an intention not to treat as harmless those constitutional errors that ‘affect substantial of a An rights’ party. admitting error plainly relevant evidence which influenced the possibly jury to a adversely litigant cannot, error, Fahy, under be conceived of as Certainly harmless. constitu- error, , tional evidence . . illegally admitting highly prejudicial . casts on someone other than the person prejudiced by a burden to show that it was little, harmless. . . . There is if difference any, between our statement Fahy v. Connecticut ‘whether about there is a that the reasonable possibility evidence have complained might contributed conviction’ and to the of a constitutional error to reason- beneficiary prove beyond requiring did to the verdict complained able doubt that error contribute We, therefore, Fahy meaning more than adhere of our obtained. do no to the hold, do, when we we now that before a federal constitutional error case harmless, can be held must be able declare a belief that it was court California, supra, doubt.” (Chapman harmless a reasonable v. beyond 710-711], omitted.) at U.S. L.Ed.2d at fns. pp. pp. _ 1884],
In Yates v. Evatt U.S. L.Ed.2d 111 S.Ct. Louisiana, 182], which supra,_U.S._[124 Sullivan L.Ed.2d were Fulminante, decided after the United States Court provided Supreme following explanation. “The is Chapman test whether it appears ‘beyond reasonable doubt ” complained (Yates
the error did not contribute to the verdict obtained.’ Evatt, 447-448, supra, 500 U.S. at at p__[114 L.Ed.2d at S.Ct. pp. - accord, 1892]; Louisiana, p. supra,_U.S. Sullivan v. at pp. 189].) L.Ed.2d at “To say that error did not contribute verdict ... to find that error in relation to else the unimportant everything jury Evatt, considered (Yates on issue . . . .” 500 U.S. question supra, accord, 448-449, at 1893]; L.Ed.2d p--[114 111 S.Ct. at Sullivan Louisiana, supra,_U.S. 189].) p__[124 p.at under Chapman focus is what the actually decided and jury whether the error have tainted its decision. issue ... is whether the jury “[T]he *66 , actually rested its verdict on evidence . .. indepen- [and instructions] Evatt, dently (Yates of the” error. v. supra, 500 U.S. at at p__[114 L.Ed.2d 448-449, 111 pp. 1893].) at S.Ct. p. differently, Stated is “question” “what effect had [the in upon guilty error] verdict the case at hand.” (Sullivan Louisiana, supra,_U.S. v. at 189].) at in p__[124 L.Ed.2d Or p. words, still other “inquiry” “whether the verdict guilty actually rendered trial was surely (Ibid.) [the] unattributable to the error.” aAs consequence, the under focus Chapman is not what a reviewing court that, itself decide might on a cold record. it does ‘the wrong entity “[W]hen ” judges (Sullivan Louisiana, defendant guilty.’ supra,_U.S. v. at p._ 190], Clark, L.Ed.2d at p. Rose quoting v. supra, 478 at p. U.S. 578 [92 470-471].) terms, L.Ed.2d at pp. By very Chapman its precludes such a court finding from harmlessness based simply “upon view of ‘over- [its own] ” whelming evidence.’ (Chapman California, v. supra, 386 at U.S. 23p. 710].) L.Ed.2d at p.
Neither is the focus under Chapman a reviewing what court might conjec- ture the jury would have decided the absence of the error. The “hypothet- whether, ical error, inquiry” if the had jury not been to the exposed it would did, “is inconsistent with the harmless-error have made the decision While .... such a Chapman inquiry hypothetical standard announced has, fact, a reasonable proved beyond [its that the State case] ensures doubt, a doubt to proved beyond that it has reasonable [it] it does not ensure Evatt, (Yates supra, at jury.” p._ v. 500 U.S. satisfaction of 454-455, 1898], (conc. opn. at italics p. original L.Ed.2d at S.Ct. Louisiana, Scalia, accord, J.); supra,_U.S. v. at p._[124 Sullivan words, whether, in a trial 188].) “The in other is not L.Ed.2d at p. inquiry, error, have been surely that occurred without the verdict would guilty Louisiana, (Sullivan L.Ed.2d supra,_U.S. rendered . .” v. at p__[124 . . 189].) at p. might what a court Chapman reviewing the focus under is not
Lastly, expected “what effect the . . error concerning might generally . speculate Louisiana, (Sullivan supra,_U.S. to have a reasonable . . . .” upon jury than 189-190].) appellate at pp. required] p._[124 “[M]ore [is (Ibid.) .” about a action . . . speculation hypothetical jury’s federal remains error of long So as the admission of a coerced confession and, such, to the federal constitutional subject constitutional dimension test, Chapman's standard of embodied “reasonable doubt” prejudice of a standard under the California Constitution is application purely academic Of assume—that majority to what question. course—contrary test. As necessarily probability” standard would not be Watson's “reasonable charter any the state does not explained, “expressly impliedly mandate[] standard of for kind of error kind of specific prejudice any proceed Mosk, Brown, (conc. J.).) (People ing.” opn. Cal.3d “generally Watson itself defined its test as one that was simply applicable.” Watson, test, added.) (People Another 46 Cal.2d at italics Brown, is the standard of example, possibility” “reasonable 432, 448, supra, 46 Cal.3d which is “state-law error at the employed for of a “are the phase Chapman trial.” tests of Brown penalty capital *67 (People same substance effect.” v. Ashmus 214].) 820 P.2d Cal.Rptr.2d [2
The standard of to be would matter little. On prejudice applied probably least, one dictum a point convincing: Schader’s is sound and indeed kind operates “confession as a bombshell which shatters the evidentiary Schader, (People supra, 731.) defense.” Cal argument, .2d at At oral p. the People expressly conceded that a “confession will be a bombshell most of the time.” As Justice a Kennedy elaborated Fulminante: “confession fact, have” an trier “indelible “on the as impact” distinguished, instance, from the an impact of isolated statement incriminates defendant when with If the believes that only jury connected other evidence. crime, a defendant has admitted the will be it doubtless to rest its tempted alone, decision on that evidence without careful of the other consideration crime, evidence in the case. from a one Apart, videotape perhaps, would have to criminal difficulty finding evidence more a defend damaging Fulminante, (Arizona ant’s of innocence.” 313- plea 499 U.S. at pp. 332-334, (conc. 111 S.Ct. at pp. atpp. opn. [113 1266-1267] Watson, J.).) Under Kennedy, admission of a coerced confession would almost bald “in always prejudicial. majority’s many assertion that ante, instances” the error would be harmless (Maj. opn., blinks reality. p. Chapman, Under It prejudice scarcely would be found a fortiori. is conceivable a that such “unimportant confession could be found relation Evatt, else everything (Yates . jury considered . . .” _ 448-449, 1893], U.S. at L.Ed.2d at 111 S.Ct. at italics pp. case, added.) In for example, a prosecutor deliberately introduced coerced confession. He did not consider Neither could “unimportant.” That, course, jury. is the very reason that of a admission coerced confes Indeed, sion cannot be deemed harmless. coercion is true harmless oxymoron.
Although the benefits of our rule of automatic are discarding reversal low, to be likely are quite costs surely very high. to be An application of harmless-error analysis have a “corrosive impact would (Rose Clark, on the administration of criminal justice.” supra, 478 U.S. at Stevens, p. 588 L.Ed.2d at (conc. pp. J.).) It opn. only 477-478] “can encourage prosecutors to subordinate the interest respecting” law “to ever-present always interest in powerful obtaining a conviction (Id. particular case.” at pp. (conc. L.Ed.2d at opn. 477-478] Stevens, J.); cf. Berger v. United States 295 U.S. L.Ed. 1314, 1321, 55 S.Ct. that the [stating “is the prosecutor representative 629] not of an ordinary party but of a controversy, sovereignty whose obligation govern is impartially as compelling obligation its to govern all; interest, therefore, and whose in a criminal prosecution not that it case, shall awin but justice done”].) shall be Similarly, it can invite only courts—ours included—to favor allegedly “efficient” processing cases with a view toward the “reliability” of the outcome of an individual criminal trial over doing justice order to preserve the legitimacy of criminal justice system itself. *68 end,
As our analysis reaches its I that the I recognize course would take—to adhere to rule our of automatic reversal—might conceivably pro- duce the “effect of eroding . . . confidence in the criminal justice system” ante, want 509) our midst who those among persons
(maj. opn., law and But morality. of the cost to regardless to be upheld convictions surely rule—will produce have taken—to abandon our majority course the desire justice members of who thoughtful society effect those among similar thus, the better path When the matter is presented to be done above all. clear.
V. Conclusion All those much has been written. On the that have many pages preceded, words, however, or even There is no reason to abandon only add to this: up reversal rule of automatic to the well- and California long-settled reconsider I I not. shall not. for the of a coerced confession. would admission admission KENNARD, J., I donot that erroneous Dissenting. agree harmless. excused as a criminal confession defendant’s coerced mental abuse or When law have to physical enforcement officers resorted unwilling from other tactics to extort improper pressure autonomy dignity the values at for suspect, stake—respect individual, too the human personality—are and for the inviolability harmless by any the uncertain afforded important relegate protection to to error standard. have refused and the United States years, England
For some 200
courts
means
confessions
criminal
charges
to allow
prosecutors
prove
the rule was that coerced
the basis of
Originally,
obtained
coercion.
falsely
confess
person may
confessions were unreliable because an innocent
(4th
Evidence
(See
McCormick on
misery.
intolerable
escape
pain
564; Paulsen,
Third
Amendment and the
1992)
ed.
The Fourteenth
§
(1954)
411, 414.) But
now untrustwor
Degree
many years
6 Stan.L.Rev.
for
country’s
give
reason that this
courts
thiness has ceased to be
primary
U.S.
(See
Connelly
coerced confessions.
Colorado v.
excluding
473, 484-485,
515]; Rogers v. Richmond
L.Ed.2d
107 S.Ct.
767-768,
735];
81 S.Ct.
(1961) 365 U.S.
369 P.2d
v. Ditson
436-439 [20
confessions,
truth,
from evidence
714].) Such
of their
are barred
regardless
with
because the means used to obtain them is
irreconcilable
fundamentally
justice.
Anglo-American system
“The
society
Chief Justice Earl Warren
it this
abhorrence
put
way:
on their inherent
the use of
does not turn alone
involuntary confessions
feeling
police
deep-rooted
untrustworthiness. It also turns on
law;
end life and liberty
while
enforcing
must
law
obey
*69
those
can
as
from
methods used to convict
endangered
illegal
be much
(Spano
as
the actual criminals themselves.”
thought
be criminals
from
1269-1271,
(1959)
New York
360 U.S.
320-321
L.Ed.2d
“
1202].)
S.Ct.
Stated another
‘the
which call
way,
considerations
of
of a coerced confession are those which call for the protection
exclusion
”
citizen,
Denno
(Jackson
he
in fact
every
guilty
whether
or not guilty.’
908, 918-919,
368, 382-383,
S.Ct.
(1964) 378 U.S.
fn.
L.Ed.2d
1205].)
1 A.L.R.3d
con
coerced
Perhaps
coincidentally, the realization that exclusion of
served to
took hold
preserve
country
fessions
core democratic values
a time when
modern
states
and worth
police
denying
dignity
individual were
in other
This contrast between the
arising
parts of world.
a free
and
ideals of
of
society
practices
government
totalitarian forms of
has been
noted
“The
expressly
by
United States
Court:
Consti
Supreme
tution of
United
against
States stands as
bar
the conviction
individual
an American court means
There
by
coerced confession.
been,
now,
have
are
and
certain
nations with
dedicated
foreign
governments
an
which
opposite policy: governments
convict individuals with testimony
obtained by police organizations possessed of an unrestrained
to seize
power
state,
persons suspected of crimes
against
hold them secret custody,
wring
and
from them
long
confessions
mental torture. So
physical
the Constitution remains the basic law of our
America will not
Republic,
have that kind
government.” (Ashcraft
v. Tennessee
U.S.
1192, 1200,
omitted;
921],
also,
L.Ed.
S.Ct.
fn.
see
United States
(2d
Frank,
Grunewald
1956)
Cir.
233 F.2d
(dis.
J.),
opn.
revd.
In a more reflective United States Court Justice Frankfurter Supreme has explained why coercive police practices such as prolonged relentless isolation, interrogation, food and deprivation, sleep sensory and physical similar human indignities are incompatible Anglo-American system with of criminal turn justice: an “To detention accused into process him wrenching from evidence which could not be extorted in court open with all its safeguards, is so grave abuse the power of arrest as to offend the procedural standards of process, due This so because it [f] violates the underlying our principle enforcement of the criminal law. Ours is the accusatorial as to the opposed inquisitorial system. Such has been the characteristic of Anglo-American justice criminal since it freed itself from practices borrowed the Star Chamber from the Continent whereby an accused was in secret interrogated for hours on end. Under our [Citation.] system society carries the burden of its proving charge against accused case, not out of his own mouth. It must establish not by its interrogation *70 556 even under but evidence judicial safeguards, independently
the accused will a to prisoner ‘The law not suffer through investigation. secured skillful Hawkins, 2 Pleas own conviction.’ of be made the deluded instrument of his Crown, 46, ed., 1824). (8th charges, the 34 of requirement specific c. § doubt, from their the of the accused beyond protection reasonable proof the right whatever form of to through police pressures, confessions extorted counsel, of to be right before a the to assistance hearing magistrate, prompt the duty when circumstances make it to by government necessary, supplied all advise an accused of his constitutional are characteristics rights—these Protracted, sys- the accusatorial and manifestations of its demands. system subjection interrogation by tematic and uncontrolled accused disclosures or confessions is subversive of eliciting police purpose It without its system. inquisitorial system safeguards. accusatorial subjected judicial interroga- For while under that the accused is system tion, he is the disinterestedness protected by judge presence 49, (Watts (1949) v. Indiana 338 U.S. 54-55 L.Ed. counsel. [Citation.].” [93 1801, 1806-1807, also, 1347]; (1985) 69 S.Ct. see Miller v. Fenton 474 U.S. 104, 405, 410-411, 445].) 110 L.Ed.2d 106 S.Ct. [88 system
Because the use of coerced is irreconcilable with our confessions law under justice, such use constitutes a denial of due both process Const., Amend.; Const., (U.S. federal and state Constitutions. 14th Cal. art. I, 15; Fenton, 104, Miller at supra, 474 U.S. 109-110 pp. § [88 Demo, 368, 410-411]; supra, Jackson v. 378 U.S. 376-377 L.Ed.2d at [12 Indiana, 49, 915-916]; Watts v. 338 U.S. 54 L.Ed.2d at pp. [93 827, 1806]; 754, People (1990) v. Benson 52 802 Cal.3d Cal.Rptr. [276 330]; 642, People P.2d 70 Cal.2d Cal.Rptr. [75 Sanchez 74]; Ditson, 415, 439; People 451 P.2d v. Trout 57 Cal.2d (1960) 54 Cal.2d A.L.R.2d P.2d Indeed, 1418]; 97].) v. Berve P.2d 290 [332 due clause all process bars methods of evidence police gathering (Rochin the conscience” and are “offensive to human dignity.” “shock[] 165, 172, 183, 190-191, (1952) 342 U.S. L.Ed. 72 S.Ct. California state, 1396].) 25 A.L.R.2d When faced with evidence that police to recover seeking they believed to be had forced a capsules illegal drugs, vomit, the United States Court in Rochin suspect recognized Supreme to its earlier rulings use of coerced “It would be parallel barring confessions: a stultification of the which the course of constitutional responsibility history has cast upon this Court to hold that order to a man the police convict cannot extract by force what is his mind but can extract what is his (Id. stomach. 190-191].) To p. 173 L.Ed.2d at pp. [Fn. omitted.]” use of either permit form of coerced evidence the accused “would be against to afford brutality Nothing cloak of law. would more calculated to (Id. temper society.” law and to brutalize thereby discredit 190-191].) L.Ed.2d at pp. *71 of that the use coerced grew among judiciary As realization of system values of democratic confessions violated most cherished our that error such fundamental justice, widely importance became accepted 25, (See (1957) People Speaks Cal.App.2d could never be v. 156 harmless. error, mere 40 P.2d is not of commission of complaint 709] [“The [319 wrong wholly but so fundamental that it rendered conviction rule, void.”].) This been and long repeated has the California often often 562, 576-577; Sanchez, (See, supra, People v. e.g., People 70 Cal.2d applied. 1, 466, 161]; (1964) v. Matteson 61 .2d P.2d Cal.Rptr. Cal 469-470 393 [39 629, 909, (1961) v. People Brommel 56 Cal.2d 634 364 P.2d Cal.Rptr. [15 Trout, 576, 585; Berve, 845]; People v. 51 286, 290; 222, (1984) Cal.2d 241 Hinds Cal.App.3d 104]; People Rodriguez Cal.Rptr. (1943) Cal.App.2d 626].) P.2d
There are several reasons the rule and why acknowledged should be case, all this not of which applied are of equal weight.
First, the rule of automatic reversal is California law. Under the existing decisis,1 doctrine of stare which a fundamental common “expresses policy law and jurisdictions” promotes in the “certainty, predictability stability Witkin, (9 law” (3d 1985) Cal. 726), Procedure ed. Appeal, § court should to ordinarily adhere rules in its declared own decisions. prior “Without decisis], adherence rule proper to the stare no certainty [of attained, adjudication can ever be and confusion and invariably doubt must every follow change the Bench that by occurs death or otherwise.” ex (People rel. Vermule v. Bigler 5 Cal. (separate opn. Murray, J.).) C. Stare “permits decisis society that presume bedrock are principles founded in the law rather than in the proclivities of individu- als, and thereby contributes integrity of our constitutional system government, both in and in fact.” appearance (Vasquez v. Hillery (1986) 598, 610-611, U.S. 265-266 617].) 106 S.Ct. Stability when, the law is specially confessions, needed as in the treatment coerced the rule at issue affects fundamental rights democratic values define the nature of our society.
A Court, change course United States Supreme interpreting Constitution, federal is no justification for change this court’s interpre- of the tation distinct provisions of our state Constitution. This court should decisis, movere, 1“Stare quieta et non meaning precedents, ‘to adhere to and not to unsettle established,’ things which are one (Sunderlin, important most maxims of the law.” Stare Decisis 14 State J. Bar in matters of law and criminal constitutional itself of the notion disabuse court’s Fred Rogers high to the Ginger we must always play procedure the state leading. rights guaranteed never Astaire—always following, States the United guaranteed by “are on those dependent Constitution 24; I, Const., (1990) Deukmejian (Cal. art. see Raven Constitution.” § 1077].) We have 801 P.2d Cal.3d to the provisions and force give meaning and the power duty independent of our state charter.
Second, the harmless error stan reversal erosion of prevents automatic overwhelming but not containing Faced with a record persuasive dard. *72 crime, urge the to uphold evidence that the accused is of a guilty repulsive conviction, difficult to resist. the crime not is go unpunished, so that court, in is particular, It that this increasingly apparent has become (See, In re Jackson e.g., immune the siren of harmless error. song to Mosk, (dis. 835 P.2d Cal.Rptr.2d opn. 3 Cal.4th 371] 727, 822 P.2d J.); (1992) 1 Marquez Cal.Rptr.2d In re Cal.4th Kennard, reversal rule for (dis. J.).) the automatic Abandoning opn. 435] courts appellate will California require erroneous use of coerced confessions in a a class of cases which conscientious to harmless error standard to apply lead to reversal of invariably of the standard should almost application in are to will which courts tempted conviction. This occasions multiply in of an order to save the conviction disingenuously the standard apply result, fear, I that the doctrine defendant. The is guilty probable apparently beyond breaking point. of harmless error will be stretched repeatedly provide the standard will cease to degraded way, Distorted and courts. meaningful guidance for appellate
Third, failed exclude a reversal whenever the trial court has to compelling rule that conserves defendant’s coerced confession is a simple bright-line searching The the labor of reviewing resources. rule saves a court appellate evi- the trial evaluate the effect the unconstitutional record to probable convictions, dence on the verdict. The as the jury’s majority majority vast event. scrutiny By avoiding will not survive such acknowledges, evaluations, reversal coerced confes- automatic for case-by-case prejudice cases, review for evidence sions and of criminal “simplifies expedites is almost guarantees obtained at the of constitutional or other basic expense (Gibbs, Admissions and Exclusions Prejudicial Error: invariably prejudicial.” Evidence in the Federal Courts 3 Vill. L.Rev. Fourth, the wrong signal the rule of automatic reversal sends abandoning trial to to to courts. police, prosecutors, results inexorably
The rule that the admission a coerced confession impress upon police the reversal of a conviction has served to secure a confession overbearing resolve that the use of tactics to judiciary’s rule, will not tolerated. of that stern which has been force Abrogation will charged daily so an those with arduous long, give for impression of law enforcement that courts are somewhat more challenge taking view indulgent of abusive interrogation practices.
For whether to coercive normally is not prosecutors question employ accused, questioning methods but whether to evidence offer If confession obtained such methods. the rule of automatic reversal abandoned, “the concerned about reversal would problem prosecution not be to avoid the use coerced insure only confessions but their verification evidence. The then be independent prosecution might encour aged supplement other evidence by introducing coerced confession review, order to On guarantee a conviction. defend the could conviction on the ground (Meltzer, that it was warranted by evidence.” independent Involuntary Responsibility Judge Allocation Between Confessions: 317, 354; also, Note, Jury (1954) 21 U.Chi.L.Rev. see v. Fulmi Arizona *73 nante: Extending Analysis Harmless-Error to the Erroneous Admission of 581, 591; Kamisar, Coerced (1991) 66 Tul. L.Rev. What Is an Confessions “Involuntary” Some Comments on Inbau and Reid’s Criminal Confession? Interrogation and 17 Rutgers L.Rev. Confessions courts, labor,
Trial anxious to of their preserve products are strongly motivated to avoid the commission of any error automatic requiring reversal. standard, contrast, Use of a harmless error another reduction “provides on the pressure trial court’s scrutiny of the use of the coerced confession or (Bloch, its fruits.” Police Accused Crime: Prosecutorial Officers Fifth Statements, Amendment Risks Posed by Police-Elicited “Use Immunized” 625, 656.) 1992 U. Ill. L.Rev.
The fifth and most important reason to preserve automatic reversal standard is that is the only standard that gives weight sufficient to the primal constitutional interest at It stake. has been written that for the “respect individual” is (Illinois “the lifeblood law.” v. Allen 397 U.S. 353, 363-364, Brennan, (conc. 90 S.Ct. opn. 1057] J.).) In no area value tested severely, more nor is its implementation critical, more than in the official treatment of those accused of crime. In this context, demands, “respect for the individual” among other things, agents of law coercion, enforcement refrain from all forms of trickery, overreaching the questioning of the accused. weaken inevitably respect
Because the rule the must majority adopts temptation fundamental value and increase this most constitutional value, I dissent. which undermine that commit or to condone practices Mosk, J., concurred.