Lead Opinion
Opinion
Fоr a number of years, decisions of both the United States Supreme Court and this court have held that whenever a “coerced” or “involuntary” confession has been received in evidence at a criminal trial, “automatic reversal” of the conviction is required, without regard to the strength of the additional evidence received, unrelated to the confession, that tends to establish the defendant’s guilt. (See, e.g., Payne v. Arkansas (1958)
In this case, we must determine whether, notwithstanding this recent change in federal law, California law compels the automatic reversal of a
I
At trial, a jury convicted defendant Mark Steven Cahill of numerous offenses, including one count of first degree murder (Pen. Code, §§ 187, 189),
On appeal, the Court of Appeal reversed all of the murder-related convictions,
After concluding that the confession was involuntary and thus should not have been admitted at trial, the Court of Appeal went on to hold that the
The Attorney General, on behalf of the Peoрle, sought review, and, while the petition for review was pending, the United States Supreme Court rendered its decision in Fulminante, supra,
After reconsideration, the Court of Appeal reiterated its conclusion that, in view of the trial court’s erroneous admission of an involuntary or coerced confession, automatic reversal of the murder-related convictions was required. From its reading of the relevant California precedents, the Court of Appeal concluded that the existing California rule, compelling automatic reversal of a conviction whenever an involuntary or coerced confession is improperly admitted at trial, was grounded on the independent provisions of the California Constitution and not solely on the federal constitutional decisions overruled in Fulminante. As a consequence, the Court of Appeal held it was compelled, under the governing California decisions interpreting and applying state law, to reverse the murder-related convictions without undertaking any harmless-error analysis.
Thereafter, we granted the People’s subsequent petition for review, specifically limiting the issue to be argued before our court “to whether the state
II
At the outset, it may be helpful to clarify the issues that we shall not address in this opinion, in light of the contentions of the parties and the limiting order accompanying our grant of review.
First, we do not redetermine whether the circumstances under which defendant’s confession was elicited rendered it involuntary or coerced under California law. Past cases establish that the category of involuntary or coerced confessions encompasses a wide range of circumstances and includes not only the most familiar example of confessions extracted from a suspect by means of actual or threatened physical violence or torture (see, e.g., People v. Jones (1944)
Second, the Attorney General does not contend in this case that an involuntary or cоerced confession is admissible in a criminal trial under current California law, but rather specifically acknowledges “California’s strong, longstanding and absolute rule prohibiting the admission into evidence of a confession by a defendant which has been coerced by law enforcement.” Accordingly, we have no occasion in this case to decide
Accordingly, the sole issue we face is whether, under California law, the erroneous admission of a coerced confession in a criminal trial compels automatic reversal of a conviction on appeal, or whether, under some circumstances, a conviction properly may be upheld on appeal despite the erroneous admission of such a confession at trial.
Ill
As noted at the outset, this issue is of practical significance at this time because of the United States Supreme Court’s recent decision in Fulminante, supra,
As a result of the Fulminante decision, supra,
The question before us is whether California law, independent of federal constitutional requirements, compels the automatic reversal of a conviction whenever a coerced confession erroneously has been admitted at a criminal trial.
IV
In resolving the issue of the proper prejudicial error standard under California law, we begin with the governing California constitutional provision. Unlike the United States Constitution, which includes no provision
This constitutional provision states in full: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Article VI, section 13, derives directly from former article VI, section 41/2 (hereafter, former section 4y2>, a provision initially added to the California Constitution in 1911.
The defendant in O’Bryan, a union member, had been charged with murdering a nonunion employee during a strike. At trial, O’Bryan testified in his own behalf, admitting firing the fatal shot but maintaining that he had intended only to frighten, not shoot, the victim. Both in its case-in-chief and in cross-examination of the defendant, the prosecution was permitted to introduce statements that O’Bryan had made to the grand jury shortly after his arrest. When taken before that body, O’Bryan was not represented by counsel and was not informed of his right to decline to be a witness against himself or that his statements might be used against him at trial. The jury convicted him of murder, and he appealed.
After finding it was constitutional error to admit such statements—statements that “did not amount to a confession, but were admissible in evidence against the defendant as declarations against interest” (
In addressing this issue, the lead opinion in O’Bryan first described the background and purpose of the then-recently adopted constitutional provision. The opinion еxplained that even prior to the adoption of former section 4 Vi, appellate courts in California had recognized their authority to affirm a criminal conviction, despite the existence of error, when the error complained of was “trivial” or did not affect a “substantial right” of the defendant. (
In light of this background, the lead opinion in O’Bryan found that “[t]he general purpose of the [proposal and enactment of former section 4Vi] is plain” (
While acknowledging that the “miscarriage of justice” phrase “is a general one and has not as yet acquired a precise meaning” (
At the same time, however, the lead opinion in O’Bryan made clear that, at least in some contexts, an error might result in a “miscarriage of justice” even when the defendant’s guilt was apparent from a review of the evidence. The opinion explained in this regard: “When we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected. For example, if a court should undertake to deny to a defendant charged with a felony the right of trial by jury, and after a hearing of the evidence render a judgment of conviction, it cannot be doubted that such judgment should be set aside even though there had been the clearest proof of guilt. Or, if a defendant, after having been once acquitted, should again be brought to trial and thereupon convicted, in disregard of his plea that he had been once in jeopardy, it would hardly be suggested that because he was in fact guilty, no ‘miscarriage of justice’ had оccurred.” (165 Cal. at pp. 65-66.)
Nonetheless, the opinion was careful to emphasize that “it does not follow that every invasion of even a constitutional right necessarily requires a
Finally, applying former section 41/2 to the facts of the O’Bryan case itself, the lead opinion concluded that despite the trial court’s constitutional error in permitting the defendant’s statements to the grand jury to be considered by the jury, the judgment should be affirmed. In reaching this conclusion, the court reviewed the evidence as a whole, finding that all the facts disclosed in the defendant’s grand jury statements had been established at trial by other, admissible evidence. The court held that, under such circumstances, “we should certainly not be justified in forming or expressing the opinion that the admission of this testimony had resulted in a miscarriage of justice.” (
The seminal decision in O’Bryan, supra,
The Attorney General, while acknowledging the passage in O’Bryan, supra, 165 Cal. at pages 65-66, that indicates that some errors, like the denial of a jury trial, may result in a miscarriage of justice without regard to the state of the evidence introduced at trial, contends that this court’s subsequent decision in People v. Watson, supra,
We believe this portion of the Attorney General’s argument rests upon a misreading of the Watson decision. In Watson, this court reviewed and summarized the general principles relating to the constitutional harmless-error provision established in the O’Bryan decision. We then explained that
In order to eliminate the confusion wrought by this variety of differently worded tests, this court in Watson proceeded to articulate a single standard to be employed in this context, holding that “it appears that the test generally applicable may be stated as follows: That a ‘miscarriage of justice’ should be declared only when the court ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra,
In setting forth this statement of the “generally applicable” harmless error test, however, the Watson decision did not purport to overrule or disapprove that portion of the O’Bryan decision recognizing that with regard to some errors—such as a denial of the right to jury trial—a “miscarriage of justice” would result from the denial of the right itself, without regard to the state of the evidence. Indeed, the Watson decision, in restating the principles declared by the O’Bryan case, specifically recognized that under O’Bryan “certain fundamental rights ... are guaranteed to the defendant upon which he can insist regardless of the state of the evidence, such as the right to a jury trial and the right to protection under the plea of once in jeopardy . . . .” (People v. Watson, supra,
Accordingly, the issue presented by this case is whether, under California law, the admission at trial of a coerced confession is the kind of error, such as the denial of a jury trial, that results in a “miscarriage of justice” under article VI, section 13, without regard to the nature and strength of the additional evidence presented at trial, or whether, like most trial errors (including constitutional errors), the question whether the erroneous admission of such a confession warrants reversal under article VI, section 13, properly must be determined with due regard to all of the evidence received at trial.
V
Defendant argues that, as an historical matter, coerced confessions always have been considered by the California cases as the type of error that is subject to a reversible-per-se rule. The Attorney General, however, challenges defendant’s reading of the past California case law.
Beginning in the late 1950’s, however, California decisions took a different view of the matter and, thereafter, a host of cases from this court consistently declared that whenever a coerced confession had been admitted in a criminal trial, reversal of the conviction was required without regard to the strength of the other evidence revealed by the record. (See, e.g., People v. Berve, supra,
The Attorney General, although acknowledging the body of California case law set forth in the preceding paragraph, contends that the reversible-per-se rule embodied in these numerous California decisions did not emanate from the application of an independent, California standard for coerced confessions, but instead simply reflected the Califorma courts’ application of a federal reversible-per-se standard, consistent with the prejudicial error analysis applied by the United States Supreme Court in a number of its prior decisions. In advancing tMs claim, the Attorney General relies, in part, upon a passage contained in a footnote in one of our recent decisions, suggesting that the California reversible-per-se rule for confessions was “never expressly divorced from federal law.” (People v. Boyer (1989)
Upon a close review of the California cases in question, we conclude that although the decisions consistently cited both state and federal authorities,
The analysis in People v. Schader, supra, 62 Cal.2d 716, 728-731, illustrates the point. In Schader, after concluding that a confession that was admitted at trial should have been excluded because it had been obtained in violation of the defendant’s right to counsel, the court observed: “Once we have determined that an admission of an incriminating statement constitutes error, we must decide whether or not the error caused prejudice to defendant under article VI, section 4V.2 of the Constitution. (See People v. Watson (1956)
Although the Schader court thereafter noted the then-applicable United States Supreme Court decisions holding that “the introduction of an involuntary confession automatically requires reversal” (
Thus, although the Schader court drew upon analogous federal decisions for support, the court’s holding in Schader went beyond the then-existing federal authority in applying a reversible-per-se rule to confessions that were not involuntary but were inadmissible because obtained, for example, in violation of the precepts of the Massiah or Escobedo decisions (see Massiah v. United States (1964)
In the subsequent decision in People v. Jacobson (1965)
In analyzing the issue, the court in Jacobson explained that two distinct reasons had been advanced in support of the application of a reversible-per-se rule to invalidly obtained confessions. “One view holds that when a confession is obtained by methods which violate constitutional rights, law enforcement officials must suffer the penalty of reversal if such a confession is used at trial. This harsh result, contend the advocates of this view, is the only means by which illegal police activity can be successfully checked. The United States Supreme Court has expressed this view in exercising its supervisory power over the administration of criminal justice in the federal courts. [Citation.]” (63 Cal.2d at pp. 329-330, italics added.)
The Jacobson court continued: “In California, however, we have taken a somewhat different view, while recognizing the beneficial effect that results when police investigations are conducted within the constitutional framework. This court has been more concerned with the fairness of the trial, and
Because the California reversible-per-se rule applicable to confessions was premised upon the significant role that the introduction of a defendant’s confession was presumed to play in any criminal trial, the court in Jacobson concluded that in the unusual factual setting presented by that case, involving eight valid and two invalid confessions, “a refusal to inquire into the impact, if any, of the confession on the verdict would result in complete abandonment of article VI, section A1 A of the California Constitution.” (
The Jacobson decision is significant in a number of respects in our evaluation of the issue presently before us. As we shall discuss below, the opinion in Jacobson not only provides a clear explanation of the rationale underlying the California courts’ application of a reversible-per-se rule to erroneously admitted confessions, but at the same time reveals a telling flaw in that rationale. For present purposes, however, the Jacobson opinion is instructive in demonstrating rather clearly that, at least by 1965, the reversible-per-se rule applied by California decisions to improperly admitted confessions represented an application of state law under the pertinent state constitutional prejudicial-error provision, rather than simply an application of federal law.
As a jurisprudential matter, it is not surprising to find that the California decisions of that time, such as Schader, supra,
Accordingly, in light of the specific language of the California cases decided in the 1960’s, and the then-prevailing understanding of the reach of state prejudicial-error principles, we determine it was as a matter of state law that the California decisions in question characterized as reversible per se the erroneous receipt in evidence of a confession. (See also People v. Powell (1967)
VI
The Attorney General argues, however, that even if past California decisions (at least those rendered since the mid-1960’s) applied a reversible-per-se rule to confessions as a matter of state law, the Truth-in-Evidence provision of Proposition 8 (Cal. Const., art, I, § 28, subd. (d)), enacted in 1982, mandates application of federal rather than state law, insofar as state law now imposes a more stringent test of prejudicial error than that embodied in federal law under Fulminante, supra,
The provision of Proposition 8 in question, however, does not support the Attorney General’s argument. By its terms, the Truth-in-Evidence provision affects only the admissibility of evidence,
VII
Although we have determined that the reversible-per-se rule applied by a substantial number of California decisions in the 1960’s to the erroneous admission of confessions was grounded in state law, and that this state prejudicial-error rule has not been abrogated by the Truth-in-Evidence provision of Proposition 8, these conclusions are not dispositive of the issue before us. Even though it follows, from the foregoing determinations, that the United States Supreme Court’s recent decision in Fulminante, supra,
As we have discussed above, the California Constitution, unlike its federal counterpart, contains an explicit provision that directly addresses the issue of reversible error—a section added by the electorate of this state for the specific purpose of abrogating the preexisting rule that had treated any substantial error as reversible per se. In its current form, the provision reads in pertinent part: “No judgment shall be set aside, ... in any cause, on the ground... of the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) On its face, this language would appear to apply as fully to the imprоper admission of an involuntary confession as to the improper admission of any other type of evidence, and to require that, in determining whether a judgment should be set aside because of such an improper admission of evidence, a court examine all of the evidence received at trial in order to ascertain whether the error resulted in a miscarriage of justice. Because, as we have seen, it has been clear from the time of its enactment that the California reversible-error provision applies to constitutional as well as to nonconstitutional errors (see People v. O’Bryan, supra,
Of course, as the O’Bryan decision recognized, in some instances an error may result in a “miscarriage of justice” within the meaning of the California provision without regard to the strength of the evidence presented at trial, because, as the court explained in O’Bryan, “[wjhen we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.” (
As Chief Justice Rehnquist explained in Fulminante, in contrast to fundamental “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards” (
As discussed above, for more than 40 years after the adoption in 1911 of the California constitutional reversible-error provision, California courts applied ordinary prejudicial-error analysis in determining whether the admission of an involuntary confession in a criminal trial warranted reversal of the judgment. (See, ante, pp. 493-494.)
In explaining the basis for their application of a reversible-per-se rule in this context, the California decisions of the 1950’s and 1960’s did not suggest that the erroneous admission of a confession constituted a structural defect in the trial proceedings that deprived the defendant of the “orderly legal process” constituting a fair trial. Instead, the decisions reasoned that a rule of automatic reversal was justified in light of the significant role a defendant’s confession “almost invariably” plays in any criminal trial in which it is introduced. Thus, as we have seen, the Jacobson decision, supra,
In relying upon this rationale as a basis for embracing a rule of automatic reversal whenever a confession is improperly admitted at trial, however, the California decisions in question lost sight of the principal purpose and significance of the 1911 enactment of California’s constitutional provision explicitly addressing the matter of reversible error. The recognition that confessions, “as a class,” “[a]lmost invariably” will provide persuasive evidence of a defendant’s guilt (People v. Parham, supra,
Indeed, although this court’s 1965 decision in People v. Jacobson, supra,
The erroneous admission of an involuntary confession properly might be found harmless, for example, (1) when the defendant was apprehended by the police in the course of committing the crime, (2) when there are numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence, or (3) in a case in which the prosecution introduced, in addition to the confession, a videotape of the commission of the crime (cf. Fulminante, supra,
Defendant argues, however, that even if it is possible to determine in a particular case that the erroneous admission of an involuntary confession
We believe defendant’s argument suffers from two basic flaws. First, as explained at the outset of this opinion, the category of “involuntary confessions” encompasses a broad spectrum of circumstances, ranging from confessions elicited by violence or threats of violence to the much more common situation in which a confession is obtained as a result of an improper promise of benefit or leniency. Although in all such cases the law enforcement conduct in question is unconstitutional and renders any resulting statement inadmissible at trial, from a realistic perspective the official misconduct involved in obtaining an “involuntary” or “coerced” confession frequently is no more egregious (or even less egregious) than that involved in obtaining evidence by means of unreasonable searches or seizures or other constitutional violations—violations that have not been viewed as requiring the automatic reversal of any conviction based upon proceedings in which the fruit of the constitutional transgression has been received. (See, e.g., People v. Parham, supra,
Second, as we also have seen, the Jacobson decision makes it clear that, unlike the former federal automatic-reversal rule that was believed justified as a necessary means of deterring illegal police conduct, the California reversible-per-se rule never was grounded on a deterrence rationale. (People v. Jacobson, supra,
The point is further demonstrated by the line of California decisions holding that the introduction of an involuntary admission (as distinguished from a confession) is not reversible per se, no matter how flagrant the misconduct in obtaining the admission, but rather is subject to ordinary harmless-error analysis. (See, e.g., People v. Hillery (1965)
Defendant further suggests that a rule requiring automatic reversal is warranted in the case of coerced or involuntary confessions, as distinguished from other categories of inadmissible evidence, because of the unreliability of such confessions. It is now well established, however, that a confession properly may be classified as an involuntary or coerced confession without regard to its reliability (see, e.g., People v. Ditson (1962)
For a number of reasons, we do not believe that principles of stare decisis should be conclusive as to the issue at hand. First, although the reversible-per-se rule has been applied in California decisions since 1958, for virtually all of the period in question—until the United States Supreme Court’s 1991 decision in Fulminante, supra,
Second, as we have seen, for the major portion of the period following California’s adoption of the constitutional reversible-error provision in 1911—i.e., from 1911 until 1958—California decisions applied the ordinary prejudicial-error analysis mandated by that provision to the erroneous admission of coerced confessions. In adopting and applying a different state rule beginning in the late 1950’s and mid-1960’s, the California decisions did not discuss the prior California case law or attempt to explain how a rule requiring automatic reversal for such error was compatible with the purpose of the applicable state constitutional provision.
Third, as we also have explained, the 1965 decision in Jacobson (People v. Jacobson, supra,
Finally, we believe that retention of a reversible-per-se rule, solely on the basis of stare decisis, would fail to give proper recognition to the important public policies underlying the reversible error provision set forth in California’s Constitution—policies that remain of vital significance today. As the proponents of the 1911 measure recognized, an overly broad rule of reversible error that compels the reversal of judgments rendered in fairly tried criminal proceedings on the basis of errors that are unlikely to have affected
Furthermore, an overly broad reversible-error rule, mandating reversal even in circumstances in which it is clear the error did not affect the judgment, may in practice operate to weaken or diminish the basic constitutional right that is sought to be protected by the rule. As then-Justice Traynor explained for this court in People v. Parham, supra,
Accordingly, for the reasons discussed above, we overrule the line of California decisions holding that the erroneous admission of a coerced confession is reversible per se under California law.
VIII
As discussed above, the Court of Appeal in the present case did not attempt to evaluate the prejudicial effect of defendant’s involuntary confession in light of the other evidence received at trial, but rather followed the line of prior California decisions in concluding that the erroneous admission of such a confession required automatic reversal of defendant’s murder-related convictions. Because we have overruled the line of decisions upon which the Court of Appeal relied, we consider it appropriate to remand this matter to the Court of Appeal to permit that court to determine the question of prejudice under the principles established herein. If the Court of Appeal determines, from its evaluation of the entire record, that the admission of defendant’s confession does not compel reversal, it should proceed to address the additional claims of error raised on this appeal.
IX
To avoid any misunderstanding as to the nature or scope of our decision in this case, we add a few brief concluding remarks.
Nothing in this opinion should be misinterpreted to suggest that California law permits or tolerates the coercion of a confession from a suspect in a criminal case. The California Constitution clearly provides that persons may not “be compelled in a criminal cause to be a witness against themselves” (Cal. Const., art. I, § 15), and coercive conduct by any law enforcement officer that results in an involuntary confession is unquestionably intolerable and unconstitutional. An individual who is subjected to such unconstitutional
The issue we decide today thus does not turn on the question whether the California Constitution condones the obtaining of coerced confessions; it is plain that our state Constitution emphatically prohibits such conduct. The question before us involves a different and much narrower issue: namely whether, when an appellate court determines that a trial court has erred in finding that a defendant’s confession is voluntary and concludes that the confession should not have been admitted in evidence at a defendant’s trial, California law requires that the appellate court automatically reverse the defendant’s conviction without regard to the nature and strength of the other evidence of guilt introduced at the trial, or instead requires that the appellate court consider all the evidence properly admitted at trial in determining whether reversal is warranted. As we have explained, in view of the language and history of the specific provision of the California Constitution governing the question of reversible error (Cal. Const., art. VI, § 13), 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 it holds that the erroneous admission of defendant’s involuntary confession automatically required reversal of his murder-related convictions, and the matter is remanded to the Court of Appeal for further proceedings consistent with the views expressed in this opinion.
Lucas, C. J., Panelli, J., Arabian, J., and Baxter, J., concurred.
Notes
Consistently with past usage, we employ the terms “coerced” and “involuntary” confessions interchangeably to refer to confessions obtained by physical or psychological coercion, by promises of leniency or benefit, or when the “totality of circumstances” indicates the confession was not a product of the defendant’s “free and rational choice.” (See generally 1 LaFave & Israel, Criminal Procedure (1984) § 6.2, pp. 439-451; 1 Witkin, Cal. Evidence (3d ed. 1986) The Hearsay Rule, §§ 614-623, pp. 588-604 [involuntary confessions].) This category does not include confessions that are inadmissible for other reasons—for example, because they have been obtained in violation of the defendant’s constitutional right to counsel or by exploitation of an illegal detention or arrest. As we shall see, however, past California decisions have applied a rule of “automatic reversal” to all erroneously admitted confessions and have not drawn any distinctions based upon the reason a particular confession was held inadmissible. (See post, pp. 496-497, 502-503)
Unless otherwise noted, all section references are to the Penal Code.
The murder-related convictions include the first degree murder conviction and the related special circumstance allegations, the convictions of rape and robbery, and one of the first degree burglary convictions. All of these offenses were committed in the course of the same incident and against the same victim, and were the subject of the challenged portion of defendant’s confession.
The Court of Appeal specifically found that “the trial court erred in admitting evidence of defendant’s statements in response to interrogation after [Officer] Bell introduced the topic of ‘cold blooded premeditated murder,’ ” and noted that the officer’s objectionable statement in this regard occurred after a substantial period of questioning.
We do address below the question whether Proposition 8 affects the application of California’s harmless-error analysis in cases in which a coerced confession is received in evidence. (See, post, pp. 499-500.)
In Chapman v. California, supra,
As initially adopted in 1911, former article VI, section AVi, read: “No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error in any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
The provision was amended in 1914 to apply to civil cases as well as criminal cases, and in 1966 was moved to its current location as article VI, section 13, as part of a general reorganization of the California Constitution.
Although, as the dissent notes, the lead opinion in O’Bryan was not signed by a majority of the court, throughout the 60 years since that decision that opinion uniformly has been cited and followed in numerous majority opinions as the seminal authority interpreting the harmless-error provision of the California Constitution. (See, e.g., People v. Fleming (1913)
Penal Code section 1258, enacted in 1872, provided (and continues to provide) in this regard: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.”
Although defendant cites and relies upon a number of California cases that predate the enactment of article VI, section AVi (see, e.g., People v. Loper, supra,
In People v. Berve, supra,
Although this passage makes clear that the Berve court’s application of a reversible-per-se rule was grounded in part on the federal Constitution, inasmuch as the court also explicitly referred to the state Constitution and cited the Sarazzawski case, supra,
Thus, in People v. Brommel, supra,
The Truth-in-Evidence provision reads in relevant part; “Except as provided by statute hereafter enacted by a two-thirds vote ... of the Legislature, relevant evidence shall not be excluded in any criminal proceeding . . . .” (Cal. Const., art. I, § 28, subd. (d).)
The suggestion in the dissenting opinion of Justice Mosk that California law always has treated the improper admission of an involuntary confession as undermining the fairness of a trial, and as requiring reversal without regard to the strength of the prosecution’s other evidence, is inconsistent with the treatment of the prejudicial error question in the numerous Supreme Court and Court of Appeal cases decided between 1911 and 1958. (See, ante, p. 494.)
Although the dissenting opinion of Justice Mosk suggests that the rule of automatic reversal applied by past California cases to the improper admission of an involuntary confession is distinguishable from, and was based upon a rationale different from, the
The dissenting opinion of Justice Mosk additionally suggests throughout its analysis that a confession is the substantial equivalent of “an extrajudicial plea of guilty.” In our view, this characterization of a confession is plainly untenable. Unlike the entry of a guilty plea, the admission of an extrajudicial confession does not withdraw the issue of guilt or innocence from the trier of fact. When evidence of a confession is admitted at trial, a defendant remains free either to challenge the evidence that indicates he made such a confession, or to rely upon the circumstances surrounding the confession and any other evidence to demonstrate that the confession is not true or at least does not prove all that the prosecution suggests it does. Thus, it is inaccurate to characterize a confession as an extrajudicial plea of guilty.
One Court of Appeal decision has suggested that the multiple-confession exception to the reversible per se rule, established in Jacobson, applies only when the erroneously admitted confession is a voluntary confession that, for example, is inadmissible because of a Miranda violation (Miranda v. Arizona (1966)
This court never has suggested that the multiple-confession exception recognized in Jacobson is inapplicable to involuntary confessions, and other Court of Appeal decisions hаve applied the exception when the erroneously admitted confession was involuntary. (See, e.g., People v. Nicholas (1980)
The following decisions are overruled to the extent they hold or indicate that the erroneous admission of a confession is reversible per se under California law: People v. Berve, supra,
Dissenting Opinion
I dissent.
It has been said that fundamental truth is the first casualty of war. Now a fundamental principle of justice has become a casualty of the synthetic war on crime.
Contrary to the conclusion of the majority opinion, there is no reason to abandon or even reconsider the well- and long-settled California rule that, in a criminal trial, the admission into evidence of what has variously been called a “coerced” or “involuntary” confession by the defendant requires automatic reversal of any ensuing judgment of conviction. Certainly, the handing down by the United States Supreme Court of its decision in Arizona
The significance of the majority opinion must not be overlooked. To be sure, it will not send us back to the Inquisition and the Star Chamber straightaway. It assures us, somewhat ominously, that “we have no occasion in this case to decide whether” coerced confessions remain inadmissible under the California Constitution. (Maj. opn., ante, at pp. 485-486, italics added.) But it will definitely cause us to take the first step in that direction. (Cf. Arizona v. Fulminante, supra, 499 U.S. at pp. 294-295 [113 L.Ed.2d at pp. 321-322,
I. Coerced Confessions and Error
Let us proceed from what is, and must be, common ground.
A. The United States Constitution
It is error under the United States Constitution to admit a defendant’s coerced confession into evidence at a criminal trial.
The Fifth Amendment establishes a privilege against self-incrimination: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The constitutional provision has remained unchanged since its ratification in 1791.
In Bram v. United States (1897)
In addition, the Bram court impliedly concluded that the Fifth Amendment’s privilege against self-incrimination extends its reach beyond the criminal courtroom and operates even in the absence of “compulsion” commonly so called. (See Bram v. United States, supra, 168 U.S. at pp. 542-561 [42 L.Ed. at pp. 573-580].)
Thus, at one point the Bram court stated: “ ‘But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.’ ” (Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574], ellipsis in original, quoting 3 Russell on Crimes (6th ed.) p. 478.)
At another point, the Bram court stated: “The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent.” (Bram v. United States, supra,
The conclusions reached in Bram remain good law. Indeed, they were explicitly reaffirmed by the United States Supreme Court in Miranda v. Arizona (1966)
The Fifth Amendment’s privilege against self-incrimination is available against the individual states as well as the United States itself. (See, e.g.,
B. The California Constitution
Separately and independently, it is error under the California Constitution to admit a defendant’s coerced confession into evidence at a criminal trial. Section 15 of article I of the state charter establishes its own privilege against self-incrimination: “Persons may not... be compelled in a criminal cause to be a witness against themselves . . . .” This provision derives from former section 13 of article I of the currently effective Constitution of 1879: “No person shall ... be compelled, in any criminal case, to be a witness against himself. . . .” That provision, in turn, was taken from section 8 of article I of the original, and now superseded, Constitution of 1849: “No person . . . shall ... be compelled, in any criminal case, to be a witness against himself . . . .” For present purposes, the state constitutional privilege is much the same as the federal. (See, e.g., People v. Loper (1910)
C. Underlying Policies
Informing the federal and state constitutional privileges against self-incrimination and the related rules barring the admission of a coerced confession are diverse values and purposes.
In Anglo-American law generally, many “policies . . . have been advanced as . . . justification” for the privilege against self-incrimination. (8
Among these policies, three are worthy of note in the present matter.
One is the prevention of overreaching by the government and the consequent mistreatment of the individual, whether by physical torture or psychological pressure, by blatant measures or subtle devices (see 8 Wigmore, supra, § 2251, pp. 315-316; 1 McCormick, supra, § 118, p. 433)—put otherwise, the avoidance of a “recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality” (Ullmann v. United States (1956)
Another policy is the exclusion of evidence that is regarded as inherently unreliable, i.e., the “self-incriminating admissions of the accused” (1 McCormick, supra, § 118, p. 432), in accordance with what has been described as “our distrust of self-deprecatory statements” (Murphy v. Waterfront Comm’n, supra,
But the policy that is the most substantial, expansive, and fundamental is this: “The privilege contributes toward a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.” (8 Wigmore, supra, § 2251, p. 317.) For it is the “prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself . . . .” (Id., § 2251, p. 318.)
Thus, in Murphy v. Waterfront Comm’n, supra,
In Malloy v. Hogan, supra,
And in Miranda v. Arizona, supra,
We have recognized the same point as to the state constitutional privilege against self-incrimination. Our discussion in such decisions as People v. Jimenez, supra,
Underlying the federal and state constitutional rules barring the admission of a coerced confession are policies that correspond—unsurprisingly—to
Accordingly, one of these policies is the prevention of governmental overreaching. (See e.g., 1 LaFave & Israel, Criminal Procedure (1984) § 6.2(b), pp. 442-443 [hereafter LaFave & Israel] [discussing the federal constitutional rule]; Miller v. Fenton (1985)
Another policy is the exclusion of evidence deemed unreliable. (See, e.g., 1 LaFave & Israel, supra, § 6.2(b), pp. 442, 444 [discussing the federal constitutional rule]; People v. Atchley, supra,
The most basic of the policies, however, is simply the ensuring of fairness in the contest between the government and the individual. (See, e.g., Colorado v. Connelly, supra,
It goes without saying that the “fairness” policy that underlies both the federal and state constitutional privileges against self-incrimination and the
In view of the foregoing, it is plain that the admission, at a federal criminal trial, of a coerced confession offensive to the Fifth Amendment’s privilege against self-incrimination constitutes a denial of due process of law under that same amendment. (See Miranda v. Arizona, supra,
II. Coerced Confessions and Reversal
From the fact that it is error under both the United States and California Constitutions to admit a defendant’s coerced confession into evidence at a criminal trial, let us now turn to the question of the consequences of such error.
A. The United States Constitution
It is the rule under the United States Constitution—Fulminante put to the side for the time being—that the admission of a defendant’s coerced confession into evidence at a criminal trial requires automatic reversal. (See, e.g., Rose v. Clark (1986)
The rationale of the rule is easy to discern. It is bottomed on the policy of fairness in the contest between the government and the individual, which underlies the Fifth Amendment’s privilege against self-incrimination and the related rule barring the admission of a coerced confession.
Stated more expansively, the rationale is to this effect: “The harm caused by the violation—the skewed balance between the state and the accused— [can] be cured [only] by a new trial at which the confession and its fruits are excluded. Because the value in fair play is not concerned with reliability, the conviction [must] be reversed and [the] process redone even when the defendant is undeniably guilty and we are fully confident that the confession did not affect the jury’s verdict.” (Stacy & Dayton, Rethinking Harmless Constitutional Error (1988) 88 Colum. L.Rev. 79, 104 [hereafter Stacy & Dayton].)
The rule of automatic reversal does not overlook the fact that a confession, when introduced at trial, constitutes evidence. But it recognizes that such evidence is sui generis. “A plea of guilty is in essence a confession in open court. . . .” (In re Tahl (1969)
The rule, it must be emphasized, does not at all depend on considerations of reliability. In Jackson v. Denno, supra,
Associated with the “fairness” rationale is a more practical concern regarding the evidentiary force that inheres in confessions as such, which has compelled the recognition that “where ... a coerced confession constitutes a part of the evidence before the jury . . . , no one can say what credit and weight the jury gave to the confession.” {Payne v. Arkansas, supra,
Manifestly, the rule of automatic reversal dates back almost a century to Bram. (See Bram v. United States, supra,
The rule of automatic reversal arose in a period in which it was assertedly “unclear” whether and to what extent federal constitutional errors are subject to harmless-error analysis. (Stacy & Dayton, supra, 88 Colum. L.Rev. at pp. 82-83; compare Kotteakos v. United States (1946)
In 1967, that period ended. In Chapman v. California, supra,
The Chapman court, however, expressly excepted from harmless-error analysis the admission of a coerced confession. Again in the court’s own words: “[0]ur prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . .” (Chapman v. California, supra,
In 1986, the United States Supreme Court revisited the question of harmless error. In Rose v. Clark, supra,
All the same, the Clark court continued to expressly except from harmless-error analysis the admission of a coerced confession. (Rose v. Clark, supra, 478 U.S. at pp. 577-578 & fn. 6 [92 L.Ed.2d at pp. 470-471].) It did so because “some errors necessarily render a trial fundamentally unfair. The State of course must provide a trial before an impartial judge [citation], with counsel to help the accused defend against the State’s charge [citation], . . . Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence [citation],
Concurring in the judgment in Clark, Justiсe Stevens stated: “As the Court recognizes, harmless-error inquiry remains inappropriate for certain constitutional violations no matter how strong the evidence of guilt may be. [Citations.] The Court suggests that the inapplicability of harmless error to these violations rests on concerns about reliability and accuracy, and that such concerns are the only relevant consideration in determining the applicability of harmless error. [Citation.] In fact, however, violations of certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial. Thus, . . . [t]he admission of a coerced confession can never be harmless even though the basic trial process was otherwise completely fair and the evidence of guilt overwhelming. In short, . . . our Constitution, and our criminal justice system, protect other values besides the reliability of the guilt or innocence determination.” (Rose v. Clark, supra, 478 U.S. at pp. 586-588 [92 L.Ed.2d at pp. 476-478], fn. omitted (conc. opn. of Stevens, J.).)
Accordingly, the rule of automatic reversal survived the formal advent of harmless-error analysis in Chapman and its subsequent development in Clark. Indeed, the rule was explicitly reaffirmed in both decisions. The Chapman court simply cited to the unquestioned authority of Payne. (Chapman v. California, supra,
Chapman and Clark were manifestly right to reaffirm the rule of automatic reversal. The threat of harm that harmless-error analysis is designed to assess concerns whether or not the outcome of an individual criminal trial is reliable. The harm that the admission of a coerced confession necessarily causes is the undermining of fairness in the contest between the government and the individual and, ultimately, the legitimacy of the criminal justice system itself. Hence, the application of harmless-error analysis to the introduction of a coerced confession is inappropriate: such analysis does not even
B. California Law
Separately and independently, it is the rule in California that the admission of a defendant’s coerced confession into evidence at a criminal trial requires automatic reversal. (See, e.g., People v. Jimenez, supra, 21 Cal.3d at pp. 605-606; People v. Sanchez (1969)
The rationale of our rule of automatic reversal rests on the policy of fairness in the contest between the government and the individual, which underlies the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession. In People v. Berve, supra,
Our rule too recognizes that a confession is indeed evidence, but evidence sui generis, being substantially an extrajudicial plea of guilty. A coerced guilty plea cannot support a conviction under California law. (See, e.g., People v. Wadkins (1965)
Associated with the “fairness” rationale, although apparently only in dictum in a single coerced-confession case, viz., People v. Matteson, supra,
It must be noted that our rule of automatic reversal arose, and came to full stature, within a jurisprudence requiring harmless-error analysis.
Our rule goes back to the early years of statehood. (See People v. Ah How, supra, 34 Cal. at pp. 223-224; People v. Johnson, supra,
It cannot be deemed, in its historical roots, simply a particularization of some “presumption of prejudice” that formerly attached to any error.
Virtually since California’s admission into the Union in 1850, no such “presumption of prejudice” has existed in this state.
In 1851, harmless-error analysis was established by statute.
Statutes 1851, chapter 29, section 499, page 267: “After hearing the appeal, the Court shall give judgment without regard to technical error or defect, which does not affect the substantial rights of the parties.” This provision is the source of the substantially identical Penal Code section
So too, Statutes 1851, chapter 29, section 601, page 279: “Neither a departure from the form or mode prescribed by this Act in respect to any pleadings or proceedings, nor an error or mistake therein shall render the same invalid, unless it have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” This provision is the source of the substantially identical Penal Code section 1404, which was enacted in 1872 and has remained unchanged: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”
In People v. Brotherton (1874)
“. . . Our judgment. . . , it must be remembered, is to be given‘without regard to technical error or defect which does not affect the substantial rights of the parties.’
“That a technical error has intervened at the trial is, therefore, not of itself enough to warrant our interference.
“The prisoners must go further, and affirmatively show in some way that their substantial rights have been injuriously affected by the error complained of. The burden is upon them to do so. Mere intendments indulged here are in support of the proceedings below, so far as such intendments are consistent with the record.” 7
We adhered to, and reaffirmed, Brotherton in such decisions as People v. Nelson (1880)
Thus, even as our rule of automatic reversal was arising, we were regularly conducting harmless-error analysis, in which we examined the entire cause, including the evidence. Accordingly, in many cases we concluded that errors of various sorts were not reversible because they were not prejudicial.
For example, we held errors in pleading harmless in decisions including People v. Wynn (1901)
Similarly, we deemed harmless errors of procedure in cases such as People v. Sprague (1879)
Also, we held erroneous instructions harmless in decisions including People v. Nelson, supra, 56 Cal. at pages 81 to 83; and People v. Burns (1883)
Lastly—and of particular significance here—we deemed harmless errors bearing on the admission or exclusion of evidence in cases such as People v.
At a special election held on October 10, 1911, the people approved Proposed Senate Constitutional Amendment No. 26, and thereby added former section 4Vi to article VI of the California Constitution (hereafter sometimes former section 4Vz): “No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In 1914, the constitutional provision was amended as to scope, in order to cover “any case,” civil as well as criminal, and also as to phrasing. In 1966, it was repealed as section 41/2 and added as section 13 (hereafter sometimes section 13): “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Thus, even as our rule of automatic reversal came to full stature, we regularly conducted harmless-error analysis, in which we examined the entire cause, including the evidence. Accordingly, in cases too numerous even to cite representatively, we have concluded that errors of various sorts were not reversible because they were not prejudicial.
The practice we have adopted and followed over the years makes plain what is implicit in our decisions, viz., that our rule of automatic reversal treats the admission of a coerced confession as itself a “miscarriage of justice” (Cal. Const., art. VI, § 13), which at the very least “tend[s] to [the defendant’s] prejudice ... in respect to a substantial right” (Pen. Code, § 1404) and cannot be deemed a mere “technical” error (id., § 1258). (Cf. Davis v. City of Berkeley (1990)
Our rule of automatic reversal is not inconsistent with harmless-error analysis as established by sections 1258 and 1404 of the Penal Code and mandated by section 13 of article VI of the California Constitution.
We need not detain ourselves long so far as harmless-error analysis under the statutory provisions is concerned. It is undisputed, and indeed indisputable, that tiie privilege against self-incrimination, under both the United States and California Constitutions, is one of the most “substantial” of “rights." (Pen. Code, § 1258.) Similarly, it is settled beyond peradventure that the admission of a coerced confession must at the very least “tend[] to [the defendant’s] prejudice” in respect to this most “substantial right.” (Id., § 1404.)
As for harmless-error analysis under the constitutional provision, we must spend considerably more time. The construction and application of section 13—former section 41/2—of article VI of the California Constitution are not easily determined, contrary to the evident belief of the majority (see maj. opn., ante, at pp. 487-493) and others (see, e.g., People v. Watson (1956)
That is because the so-called “seminal decision” (maj. opn., ante, at pp. 491, 506) in People v. O’Bryan (1913)
At the outset, we must recognize, and in fact emphasize, a fact that has generally been overlooked. In O’Bryan, there is no opinion of the court. Justice Sloss authored the lead opinion, in which Justice Angellotti and Justice Shaw joined. (People v. O’Bryan, supra, 165 Cal. at pp. 57-68 (lead opn. by Sloss, J.).) For his part, Justice Lorigan authored an opinion concurring in the judgment, in which Justiсe Melvin and Justice Henshaw joined. (Id. at pp. 68-70 (cone. opn. of Lorigan, J.).) Neither opinion commanded a majority.
In the lead opinion in O’Bryan, Justice Sloss set forth the following facts.
At trial before a jury, it was established beyond dispute that the defendant was a member of a labor organization striking the Llewellyn Iron Works,
The point of controversy was whether or not the defendant intended to kill Avila.
The prosecution sought to prove such intent. It presented evidence to show that the defendant sought to terrorize Avila because he was working for Llewellyn. Included, apparently, was certain testimony that the defendant had given before a grand jury. In Justice Sloss’s words: “On the day of the shooting, ... the defendant was arrested on suspicion of being concerned in the killing of Avila, and was held in custody in the county jail. [Some days later,] ... he was, by the sheriff, taken before the grand jury which was investigating the homicide, and was sworn and questioned concerning his actions before and at the time of the shooting. He was not informed of his constitutional right to decline to be a witness against himself, nor was he warned that his statements might be used against him. In response to the examination of the district attorney, he made to the grand jury a number of statements. These statements did not amount to a confession,” indeed they were substantially unrelated to the shooting itself, “but were admissible in evidence against the defendant as declarations against interest. . . .” (People v. O’Bryan, supra, 165 Cal. at pp. 60-61 (lead opn. by Sloss, J.).)
The defendant denied intent to kill. Taking the stand, he testified on direct examination that he sought merely to frighten Avila, and not to cause him any injury. On cross-examination, the prosecution questioned him, over objection, as to certain testimony that he had given before the grand jury.
The jury returned a verdict finding the defendant guilty of murder of the 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 pursued was in violation of the constitutional right of every person not to ‘be compelled, in any criminal case, to be a witness against himself.’ (Const. Cal., art. I, sec. 13.)” (People v. O’Bryan, supra,
Up to this point in Justice Sloss’s lead opinion, as will subsequently appear, Justice Lorigan, together with the two justices who joined in his concurrence, did not disagree. In what follows, however, Justice Sloss spoke only for himself and for the two justices who joined in his opinion.
The question of reversal, stated Justice Sloss, “must be answered with due regard to the terms of section 4 of article VI, added to the constitution by amendment adopted in 1911." (People v. O’Bryan, supra,
“The general purpose of the amendment,” he said, “is plain. Inasmuch as under the pre-existing provisions of the constitution the jurisdiction of the supreme court and of the district courts of appeal was limited in criminal cases ‘to questions of law alone’ [citation] it was incumbent upon these courts to reverse any judgment of conviction based upon proceedings which were affected in any degree by substantial error of law. . . . [W]here [the error was not trivial or could have prejudiced a substantial right] . . . and . . . was one which might or might not have turned the scale against the defendant, the limitation of the appellate jurisdiction to questions of law precluded the reviewing courts from weighing the evidence for the purpose of forming an opinion whether the error had or had not in fact worked injury. Having no jurisdiction in matters of fact, the court in which the appeal was pending was bound to apply the doctrine that prejudice was presumed to follow from substantial error." (People v. O’Bryan, supra, 165 Cal. at pp. 63-64 (lead opn. by Sloss, J.).)
“By the new constitutional provision,” Justice Sloss went on, “the appellate courts are empowered to examine ‘the entire cause, including the evidence’ and are required to affirm the judgment, notwithstanding error, if error has not resulted ‘in a miscarriage of justice.’ ” (People v. O’Bryan, supra,
“What, then,” asked Justice Sloss, “is a miscarriage of justice? The phrase is a general one and has not yet acquired a precise meaning.” (People v. O’Bryan, supra,
“Section 41/2 of article VI of our constitution,” according to Justice Sloss, “must be given at least the effect of abrogating the old rule that prejudice is presumed from any error of law. Where error is shown it is the duty of the court to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury. The mere fact of error does not make out a prima facie case for reversal which must be overcome by a clear showing that no injury could have resulted.” (People v. O’Bryan, supra,
Applying former section 4Vz to the facts, Justice Sloss concluded that the erroneous admission of the defendant’s grand jury testimony had not “resulted in a miscarriage of justice,” essentially because “[ejvery material matter covered by [the testimony] was shown to the jury by other evidence, which was concededly admissible, and the truth of which was not contradicted.” (People v. O’Bryan, supra, 165 Cal. at pp. 66, 67 (lead opn. by Sloss, J.).)
Let us step out of O’Bryan for the moment. Having ourselves briefly reviewed the relevant history, we are compelled to conclude that Justice Sloss’s statements are at best dubious. We need only recall two facts. First, for almost four decades prior to the addition of former section 4¥i, we had conducted harmless-error analysis, and had done so without any “presumption of prejudice.” (See, e.g., People v. Nelson, supra,
In attempting to determine the “general purpose” of former section 4Vi, let us look to the arguments of the proponents of proposed Senate Constitutional
“The object of this amendment is to enable our courts of last resort to sustain verdicts in criminal cases unless there has been a miscarriage of justice, or, putting it in another way, its purpose is to render it unnecessary for the higher courts to grant the defendant in a criminal case a new trial for unimportant errors. It is designed to meet the ground of common complaint that criminals escape justice through technicalities.” (Ballot Pamp., Proposed Amends, to the Cal. Const, with legislative reasons for and against adoption, Special Statewide Elec. (Oct. 10, 1911) [hereаfter Ballot Pamp.], reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; accord, id.., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.)
“. . . [T]he adjective branch of our law has not kept pace with the development of substantive law. The trial of a criminal is so hedged about with technicalities that it has grown almost impossible to convict one whose wealth is sufficient to enable him to employ counsel skilled in the technique of criminal law. Thus there has grown up two systems of law—one for the poor, the other for the rich. The pauper prisoner is subjected to the iniquities of the ‘third degree’ to secure from him incriminating evidence, while the wealthy one is surrounded by a corps of defenders, whose skill in barricading their client behind technicalities is usually commensurate with the fees secured.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton.)
“. . . The reversal of the just conviction of a guilty man upon purely technical errors is the prime cause of want of confidence in our courts.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A.E. Boynton.)
In view of the foregoing, the “general purpose” of former section 4!/a was simply to constitutionally preclude reversals in criminal cases by appellate courts, and the attendant loss of public confidence in the criminal justice system, when the errors committed at trial were “unimportant” or “purely technical.”
Informed with such an intent, the constitutional provision shows itself inapplicable to the admission of a coerced confession. As stated, a confession is evidence sui generis, being substantially an extrajudicial plea of guilty. The admission of a coerced confession, of course, is neither “unimportant” nor “purely technical.” Rather, it is a profoundly grave defect going to the very heart of a criminal trial under the California Constitution, which
It follows that the constitutional provision does not even reach our rule of automatic reversal for the admission of a coerced confession.
True, the proponents of the measure criticized the so-called “presumption of prejudice.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.) But they did so only in the context of errors that are “unimportant” or “purely technical.” (Id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; accord, id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.)
Had the proponents of the measure desired to affect our rule, which does not “presume prejudice” for an “unimportant” or “purely technical” error but requires automatic reversal for a profoundly grave defect going to the very heart of a criminal trial, they would undoubtedly have given some indication. They did not. To do so would have been easy. They searched back almost 40 years to assail the “doctrine announced in” People v. Stanley, supra,
To be fair, Justice Sloss did not completely miss what “miscarriage of justice” under former section 4Vi might comprehend. “When we speak of
“For example,” said Justice Sloss, “if a court should undertake to deny to a defendant charged with a felony the right of trial by jury, and after a hearing of the evidence render a judgment of conviction, it cannot be doubted that such judgment should be set aside even though there had been the clearest proof of guilt.” (People v. O’Bryan, supra, 165 Cal. at pp. 65-66 (lead opn. by Sloss, J.).)
“Or,” he went on, “if a defendant, after having been once acquitted, should be again brought to trial and thereupon convicted, in disregard of his plea that he had been once in jeopardy, it would hardly be suggested that because he was in fact guilty, no ‘miscarriage of justice’ had occurred.” (People v. O’Bryan, supra,
Or—we might add—if a court should receive in evidence a defendant’s coerced confession, it cannot be questioned that any ensuing conviction should be overturned notwithstanding guilt proved beyond a reasonable doubt.
This is because the harm caused by each of the three errors—denial of a jury trial, rejection of a plea of once in jeopardy, and admission of a coerced confession—is the undermining of fairness in the contest between the government and the individual and, ultimately, the legitimacy of the criminal justice system itself. Such harm can be cured only by reversal.
“. . . When a defendant has been denied any essential element of a fair trial or due process,” which must surely include the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession, “even the broad saving provisions of section 41/2 of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand.” (People v. Sarazzawski (1945)
Let us now return to O’Bryan. In his concurring opinion, Justice Lorigan agreed with Justice Sloss’s result affirming the judgment but disagreed with
Justice Lorigan continued: “It was, as pointed out in the [lead] opinion, error for the court to have admitted in evidence on behalf of the state the statements made by the defendant before the grand jury. This was in violation of the constitutional right of the defendant not to ‘be compelled in any criminal case to be a witness against himself.’ ” (People v. O’Bryan, supra,
Such an error, Justice Lorigan suggested, might generally require automatic reversal, notwithstanding former section 4Vr. “If the defendant had not subsequently become a witness on the trial in his own behalf but had stood squarely upon the error of the court in permitting evidence of those statements, I am not prepared just now to say that against this viоlation of a constitutional right the section of the constitution could be interposed.” (People v. O’Bryan, supra,
Automatic reversal, Justice Lorigan concluded, was not required in this case: “[H]ere the defendant did not stand upon the error. He became subsequent to its admission a witness in his own behalf and gave testimony in chief upon such matters as warranted the district attorney upon cross-examination in covering all the matters concerning which he had made statements before the grand jury. This district attorney was justified in cross-examining him as to all these matters and the testimony of the defendant respecting them was substantially a reiteration of the statements he made before the grand jury.” (People v. O’Bryan, supra,
Therefore, Justice Lorigan proceeded, what controlled was the “general rule” of harmless-error analysis, “to which this court long since has given succinct utterance ... in People v. Brotherton,
In the years after O’Bryan, we revisited the question of the construction and application of former section 4xh in only one major decision.
In People v. Watson, supra,
Three points bear emphasis.
First, Justice Spence’s opinion did not hold that former section 4XA precluded automatic reversal for certain errors, but merely stated the “test” that was “generally applicable” when harmless-error analysis was appropriate. “[Cjertain fundamental rights,” he declared, “are guaranteed to the defendant upon which he can insist regardless of the state of the evidence, such as the right to a jury trial and the right to protection under the plea of once in jeopardy . . . .” (People v. Watson, supra,
Second, Justice Spence’s opinion did not hold that former section 4V2 mandated the so-called “reasonable probability” standard as the only “test” that could be employed when harmless-error analysis is appropriate, but simply defined that standard as the ‘test” that was “generally applicable.” (People v. Watson, supra,
In Watson, Justice Carter, in dissent, disagreed with Justice Spence’s opinion as to both the construction and application of former section 4Vz. One of his comments should be noted: “It is perfectly obvious to me”—and, indeed, it should be perfectly obvious to all who give the matter any consideration—“that the concept of the framers of section 4Vz of article VI of our Constitution was that technical errors in instructions to the jury or in the admission or rejection of evidence or errors in pleading or procedure which could not affect the result in a case should not be relied upon as a ground for the reversal of a judgment.” (People v. Watson, supra,
In view of the foregoing, we must allow that the construction and application of what was formerly section 4Vz and what is now section 13 may be hard to determine fully and with precision. But we can at least arrive at this conclusion. The constitutional provision was not intended to abrogate or obviate our rule of automatic reversal for the admission of a coerced confession. It was designed simply to constitutionally preclude a reversal when the error in question is “unimportant” or “purely technical”—unlike the introduction of a coerced confession, which is a profoundly grave defect going to the very heart of a criminal trial.
In concluding to the contrary, the majority make several missteps that prove to be fatal.
First and most serious, the majority fail to recognize that what was formerly section 4Vz and what is now section 13 was not intended even to reach our rule of automatic reversal. They pay too little attention to the constitutional provision’s words and its historical background and context, and too much attention to Justice Sloss’s lead opinion in O’Bryan. The fact that several decisions have subsequently cited that opinion does not render it sound. Perhaps it was “clear” to Justice Sloss that the constitutional provision “applies to constitutional as well as to nonconstitutional errors . . . .” (Maj. opn., ante, at p. 501.) It was not clear to Justice Lorigan or, more significantly, to the proponents of the measure, who intended it to forgive “unimportant” or “purely technical” errors, among which constitutional defects do not seem to figure. In addition, our many decisions recognizing the rule of automatic reversal did not “los[e] sight of the principal purpose and significance” of the constitutional provision. {Id. at p. 503.) Rather, the
Second and perhaps as serious, the majority assume without basis that a criminal trial can be deemed “fair” under the California Constitution even if a coerced confession is admitted. Surely the framers of the state charter would be surprised. The state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession effectively define a trial as “fair” only if it is without such a taint. In the lead opinion in O’Bryan, Justice Sloss was certainly right on one point: “When we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.” (People v. O’Bryan, supra,
Third, and related to the preceding, the majority treat a confession as though it were “ordinary” evidence, which has long been subject to harmless-errоr analysis. Of course, it is not. As stated, a confession is evidence sui generis, being substantially an extrajudicial plea of guilty.
Fourth, the majority, in purporting to consider our rule of automatic reversal and its rationale, actually set up and knock down what is nothing more than a straw man.
As stated, the rule with which we are concerned requires automatic reversal for the admission of a coerced confession. But the rule that the majority choose to attack is the derivative and broader one that treats as reversible per se the introduction of any confession violative of the United States Constitution. The majority confuse the two. Contrary to their implication, the latter rule is not at issue in this matter. (See fn. 1, ante.)
Similarly, the rationale of our rule of automatic reversal for the admission of a coerced confession rests on the policy of fairness in the contest between the government and the individual, which underlies the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession. But the rationale that the majority decide to criticize depends on considerations regarding the inherent evidentiary force of confessions as such, which is not substantially associated with the rule at
The majority’s confusion of rules and rationales is manifest.
Their discussion focuses largely and extensively on People v. Schader (1965)
Schader is the source of the rule that the introduction of any confession violative of the United States Constitution is reversible per se. It employed as its foundation the rule requiring automatic reversal for the admission of a coerced confession. It proceeded to extend that rule into the derivative and broader rule referred to above. In doing so, it did not rely on the nature of the underlying violation. The reason is manifest: as explained, the admission of a coerced confession is a profoundly grave defect going to the very heart of a criminal trial; the introduction of a statement offensive to Escobedo and Dorado is not comparable. Rather, Schader used as its rationale the fact that evidentiary force inheres in confessions as such—that, in its own words, any “confession operates as a kind of evidentiary bombshell which shatters the defense” (People v. Schader, supra,
As a result of their confusion, the majority in effect challenge not the rule of automatic reversal for the admission of a coerced confession but rather the
The majority attempt to hide their confusion of rules and rationales—from themselves or from others or from both, I cannot say—by declaring that “there is nothing in . . . any . . . decision of this court that supports the . . . distinction” set out above. (Maj. opn., ante, at p. 504, fn. 15.)
Can the majority possibly mean that the rule of automatic reversal for the admission of a coerced confession was not extended in Schader into the derivative and broader rule that the introduction of any confession violative of the United States Constitution is reversible per se? Schader itself belies any such claim. (See People v. Schader, supra, 62 Cal.2d at pp. 728-731.)
Or can the majority possibly mean that the rationale of the rule of аutomatic reversal for the admission of a coerced confession rests on the evidentiary force that inheres in confessions as such? Any such claim founders on coerced-confession cases decided both before and after Schader, including People v. Jimenez, supra,
Among coerced-confession cases, the only apparent exception in this regard—such as it is—is our pre-Schader decision in People v. Matteson, supra,
To the extent that the majority imply that the italicized dictum in Matteson is somehow “typical” of coerced-confession cases (maj. opn., ante, p. 494),
One final point: Our rule of automatic reversal is indeed our rule.
It arose more than a hundred years ago without citation to the United States Constitution or decisions construing that instrument. (See, e.g., People v. Ah How, supra, 34 Cal. at pp. 223-224; People v. Johnson, supra,
Moreover, it came to full stature well before 1967. It was only in that year, in its landmark Chapman decision, that the United States Supreme Court declared that the question of reversibility for error in a state criminal trial, even error of federal constitutional dimension, was governed other than by state law. (See Chapman v. California, supra, 386 U.S. at pp. 22-24 [17 L.Ed.2d at pp. 709-711]; see, generally, id. at pp. 45-57 [17 L.Ed.2d at pp. 722-729] (dis. opn. of Harlan, J.).) Prior to that time it was commonly believed, apparently, that the issue was one of state law. Certainly that was our belief. (See, e.g., People v. Bostick (1965)
The majority recognize that our rule of automatic reversal is indeed our rule. Here, they do no more than bow to necessity.
Certainly, the majority’s assertion that in the period before Berve we subjected the admission of coerced confessions to harmless-error analysis in “each” of “numerous” decisions (maj. opn., ante, pp. 494 & 502, fn. 14) is what may most charitably be labeled an overstatement. A brief review of the cases they cite proves the point.
Thus, in People v. Gonzales (1944)
In People v. Jones (1944)
In People v. Stroble (1951)
On certiorari, the United States Supreme Court affirmed sub nomine Stroble v. California, supra,
In a related effort to diminish the authority of our rule, the majority effectively criticize Berve and its progeny for not discussing our allegedly “numerous” decisions subjecting the admission of coerced confessions to harmless-error analysis. But as shown, there was practically nothing to discuss. The exception, of course, is People v. Stroble, supra,
In a further effort to diminish the authority of our rule, the majority again set up and knock down their straw man, confusing this rule requiring automatic reversal for the admission of a coerced confession with its rationale resting on the policy of fairness in the contest between the government and the individual—which is at issue here—and the derivative and broader rule that treats as reversible per se the introduction of any confession violative of the United States Constitution with its rationale depending on considerations regarding the inherent evidentiary force of confessions as such—which is not at issue. As a result, the majority imply that Berve and its
III. Fulminante and Its Effects
What the majority label an “appropriate opрortunity” (maj. opn., ante, at p. 500) for their ill-conceived abandonment of the California rule of automatic reversal for the admission of a coerced confession—but what is perhaps in fact merely a convenient excuse—is the United States Supreme Court’s recent decision in Arizona v. Fulminante, supra,
In Fulminante, the defendant was indicted in Arizona for the first degree murder of his 11-year-old stepdaughter. Prior to trial in the Arizona Superior Court, he moved to suppress a confession he had made on the ground that it was inadmissible because coerced in violation of his rights under the United States Constitution, effectively including the Fifth Amendment privilege against self-incrimination. He was unsuccessful. The confession was then admitted at trial. The defendant was subsequently convicted of first degree murder and sentenced to death. On appeal, the Arizona Supreme Court reversed. It held that the confession was in fact coerced contrary to federal constitutional law. It also held that under that same law its admission required automatic reversal.
On certiorari, the United States Supreme Court affirmed. Its discussion consists of four parts: (1) a description of the facts; (2) whether the confession was inadmissible under the United States Constitution because coerced; (3) whether the admission of a coerced confession remains automatically reversible under the federal charter or is to be subject to harmless-error analysis pursuant to Chapman', and (4) whether the admission of the confession there was prejudicial.
The Fulminante court was widely fragmented and deeply divided. Justice White delivered an opinion, which was for the court as to: (1) the description
The first question that arises is whether Chief Justice Rehnquist’s opinion purportedly abrogating the federal constitutional rule 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 only to the United States Constitution. The determination here concerns California law. In this area, of course, we are the final arbiters. (Cf. Allen v. Superior Court (1976)
In passing, however, we may observe that, at first glance, the “authoritativeness” of Chief Justice Rehnquist’s opinion appears minimal. The weight to be accorded to his views must be reduced—to borrow words he wrote in another case—by reason of the fact that they prevailed “by the narrowest of margins, over [a] spirited dissent[] challenging the[ir] basic underpinnings
When we look more closely, we come to realize that the “authoritativeness” of Chief Justice Rehnquist’s opinion is actually nonexistent. The relevant discussion, which is manifestly unnecessary to the court’s judgment, is dictum. The Chief Justice later expressly admitted as much, making a virtue of necessity. (Rehnquist, C. J., Review of Major Supreme Court Decisions—October, 1990 Term (June 28, 1991) Sixty-first Judicial Conference for United States Judges of the Fourth Circuit, vol. I, p. 19 [conceding that the discussion “may be technically dicta [sic]”].)
The second question that arises is whether Chief Justice Rehnquist’s opinion is persuasive as to the issue before this court. Here too, the answer is negative.
In purportedly abrogating the federal constitutional rule of automatic reversal, Chief Justice Rehnquist lays a foundation that assumes that the United States Constitution is concerned only with the reliability of the outcome of an individual criminal trial and not at all with the legitimacy of the criminal justice system itself. (See Arizona v. Fulminante, supra,
Chief Justice Rehnquist then suggests that the federal constitutional rule of automatic reversal never existed, or at least has not existed since Chapman. (See Arizona v. Fulminante, supra,
Chief Justice Rehnquist proceeds to declare that the question whether a federal constitutional error is automatically reversible or, instead, is subject to harmless-error analysis under Chapman depends on the following crucial distinction.
On one side, there is what he labels “ ‘trial error,’ ” which “occurfs] during the presentation of the case to the jury, and which may therefore be quantitatively assessed ... in order to determine whether [it] was harmless beyond a reasonable doubt.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308 [113 L.Ed.2d at pp. 330-331,
On the other, there are what he calls “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 [113 L.Ed.2d at pp. 331- 332,
Chief Justice Rehnquist’s crucial distinction “fails.” (Arizona v. Fulminante, supra,
Perhaps more important, the distinction is “meaningless.” (Arizona v. Fulminante, supra,
If we consider, as it were, the modem form of a criminal trial, we would conclude that the admission of a coerced confession is as great a “structural defect” as, say, the exclusion from a grand jury of persons of the same race as the defendant. The latter may have no effect whatsoever on any part or aspect of the trial. The former, however, “distorts the trial process” itself (Ogletree, supra, 105 Harv. L.Rev. at p. 166), seeing that it is substantially an extrajudicial plea of guilty.
If we look more deeply to the traditional substance of a criminal trial, we would come to the same conclusion. The bar against the admission of a coerced confession (see Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574]) and the prohibition of the exclusion of same-race persons from a grand jury (see Strauder v. West Virginia (1880) 100 U.S. (
At bottom, it becomes manifest, Chief Justice Rehnquist holds a “belief that there is [nothing] more ‘fundamental’ about involuntary confessions” than about other statements inadmissible under the United States Constitution, which are indeed subject to harmless-error analysis. (Arizona v. Fulminante, supra,
“The search for truth,” as Justice White observes, “is indeed central to our system of justice, but ‘certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial.’ [Citation.] The right of a defendant not to have his coerced confession used against him is among those rights, for using a coerced confession ‘abort[s] the basic trial process’ and *render[s] a trial fundamentally unfair.’ ” (Arizona v. Fulminante, supra,
Having closely considered the question, we must arrive at this conclusion: Chief Justice Rehnquist’s opinion furnishes no principled basis on which to reconsider, less still abandon, our rule of automatic reversal in favor of harmless-error analysis.
IV. Prudential Considerations
Matters of principle aside for the moment, we should decline to reconsider and abandon the California rule of automatic reversal for the admission of a coerced confession because of purely prudential considerations.
Let us proceed. The benefits of discarding our rule of automatic reversal are likely to be quite low. Few, if any, judgments could conceivably be salvaged by application of harmless-error analysis.
We must be clear about one point. The standard of prejudice to be applied would be that of the United States Constitution, viz., Chapman's “reasonable doubt” test. That is because the admission of a coerced confession remains (at least for the time being) error of federal constitutional dimension (see Arizona v. Fulminante, supra, 499 U.S. at pp. 284-289 [113 L.Ed.2d at pp. 314-318, 111 S.Ct. at pp. 1251-1253] (opn. of White, J.)) as well as error under state law.
Chapman, it need not be emphasized, is intolerant and unforgiving of error. “The California constitutional [harmless-error] rule emphasizes ‘a miscarriage of justice,’ but the California courts”—and the majority are in accord (see maj. opn., ante, at pp. 508-509)—“have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’ We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85 [
In Yates v. Evatt (1991)
“The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at p__[114 L.Ed.2d at pp. 447-448,
The focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on evidence [and instructions] . . . , independently of the” error. (Yates v. Evatt, supra, 500 U.S. at p__[114 L.Ed.2d at pp. 448-449,
As a consequence, the focus under Chapman is not what a reviewing court might itself decide on a cold record. “[W]hen it does that, ‘the wrong entity judges the defendant guilty.’ ” (Sullivan v. Louisiana, supra,_U.S. at p._ [
Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would
Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” (Sullivan v. Louisiana, supra,_U.S. at p._[124 L.Ed.2d at pp. 189-190].) “[M]ore [is required] than appellate speculation about a hypothetical jury’s action . . . .” (Ibid.)
So long as the admission of a coerced confession remains error of federal constitutional dimension and, as such, subject to the federal constitutional standard of prejudice embodied in Chapman's “reasonable doubt” test, the application of a standard under the California Constitution is a purely academic question. Of course—contrary to what the majority assume—that standard would not necessarily be Watson's “reasonable probability” test. As explained, the state charter does not “expressly or impliedly mandate[] any specific standard of prejudice for any kind of error in any kind of proceeding.” (People v. Brown, supra,
The standard of prejudice to be applied would probably matter little. On one point at least, Schader’s dictum is sound and indeed convincing: a “confession operates as a kind of evidentiary bombshell which shatters the defense.” (People v. Schader, supra,
Although the benefits of discarding our rule of automatic reversal are likely to be quite low, the costs are surely to be very high.
An application of harmless-error analysis would have a “corrosive impact on the administration of criminal justice.” (Rose v. Clark, supra,
As our analysis reaches its end, I recognize that the course I would take—to adhere to our rule of automatic reversal—might conceivably produce the “effect of eroding . . . confidence in the criminal justice system”
V. Conclusion
On the many pages that have preceded, much has been written. All those words, however, add up only to this: There is no reason to abandon or even to reconsider the well- and long-settled California rule of automatic reversal for the admission of a coerced confession. I would not. I shall not.
It must be emphasized that the issue presented in this matter concerns our rule of automatic reversal for the admission of a coerced confession. It does not relate to a rule that is derived therefrom, but broader in scope, to the effect that the “introduction of a confession obtained from a defendant in violation of [federal] constitutional guarantees is prejudicial per se and requires reversal regardless of other evidence of guilt.” (People v. Fioritto (1968)
From time to time, the accuracy of the historical exposition that the Bram court set out in support of its conclusions has been assailed. (See McCormick, The Scope of Privilege in the Law of Evidence (1938) 16 Tex. L.Rev. 447, 453; 3 Wigmore, Evidence (3d ed. 1940) § 823, p. 250, fn. 5; Developments in the Law—Confessions (1966) 79 Harv. L.Rev. 935, 960 [following McCormick and Wigmore]; Miranda v. Arizona, supra,
It should be noted that Brant’s language that a confession may not be “ ‘obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence’ ” (Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574]) “under current precedent does not state the standard for determining the voluntariness of a confession” for relevant federal constitutional purposes. (Arizona v. Fulminante, supra, 499 U.S. at p. 285 [113 L.Ed.2d at pp. 314-315,
The majority declare that the “situation in which a confession is obtained as a result of an improper promise of benefit or leniency” is “much more common” than that in which a confession is “elicited by violence or threats of violence . . . .” (Maj. opn., ante, at p. 506.) This factual assertion is unsupported. I hope it is true. I fear it is not.
It has been asserted that in Colorado v. Connelly (1986)
Of course, “the presence of functions extending beyond factfinding reliability does not necessarily place a constitutional violation outside the reach of [harmless-error analysis under] Chapman. The self-incrimination privilege serves a variety of interests beyond the protection of the innocent, yet the Court in Chapman applied the harmless error standard to an infringement of that right [under Griffin v. California (1965)
Similarly, Statutes 1851, chapter 5, section 71, page 61: “The Court shall, in every stage of an action, disregard any error or defect in the pleadings, or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect." This provision is the source of the substantially identical Code of Civil Procedure section 475 as enacted in 1872: “The Court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." In 1897, the provision was amended into its present form: “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Stats. 1897, ch. 47, § 1, p. 44, italics added.)
It should be noted that in People v. Murphy (1873)
In People v. Boyer (1989)
The giving of a reasonable-doubt instruction that is merely “deficient” under the United States Constitution is arguably an even more “classic ‘trial error.’ ” Yet in Sullivan v. Louisiana (1993)_U.S._, _-_ [
Dissenting Opinion
I do not agree that the erroneous admission of a criminal defendant’s coerced confession may be excused as harmless. When law enforcement officers have resorted to physical or mental abuse or other improper pressure tactics to extort a confession from an unwilling suspect, the values at stake—respect for the dignity and autonomy of the individual, and for the inviolability of the human personality—are too important to relegate to the uncertain protection afforded by any harmless error standard.
For some 200 years, courts in England and the United States have refused to allow prosecutors to prove criminal charges by means of confessions obtained by coercion. Originally, the basis of the rule was that coerced confessions were unreliable because an innocent person may confess falsely to escape intolerable pain and misery. (See 1 McCormick on Evidence (4th ed. 1992) § 146, p. 564; Paulsen, The Fourteenth Amendment and the Third Degree (1954) 6 Stan.L.Rev. 411, 414.) But for many years now untrustworthiness has ceased to be the primary reason that this country’s courts give for excluding coerced confessions. (See Colorado v. Connelly (1986)
Chief Justice Earl Warren put it this way: “The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty
Perhaps not coincidentally, the realization that exclusion of coerced confessions served to preserve core democratic values in this country took hold at a time when modern police states denying the dignity and worth of the individual were arising in other parts of the world. This contrast between the ideals of a free society and the practices of totalitarian forms of government has been expressly noted by the United States Supreme Court: “The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” (Ashcraft v. Tennessee (1944)
In a more reflective vein, United States Supreme Court Justice Frankfurter has explained why coercive police practices such as prolonged and relentless interrogation, food and sleep deprivation, sensory and physical isolation, and similar human indignities are incompatible with the Anglo-American system of criminal justice: “To turn the detention of an accused into a process of wrenching from him evidence which could not be extorted in open court with all its safeguards, is so grave an abuse of the power of arrest as to offend the procedural standards of due process, [f] This is so because it violates the underlying principle in our enforcement of the criminal law. Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. [Citation.] Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of
Because the use of coerced confessions is irreconcilable with our system of justice, such use constitutes a denial of due process of law under both the federal and state Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 15; Miller v. Fenton, supra,
As the realization grew among the judiciary that the use of coerced confessions violated the most cherished values of our democratic system of justice, it became widely accepted that error of such fundamental importance could never be harmless. (See People v. Speaks (1957)
There are several reasons why the rule should be acknowledged and applied in this case, not all of which are of equal weight.
First, the rule of automatic reversal is existing California law. Under the doctrine of stare decisis,
A change in course by the United States Supreme Court, interpreting the federal Constitution, is no justification for a change in this court’s interpretation of the distinct provisions of our state Constitution. This court should
Second, automatic reversal prevents erosion of the harmless error standard. Faced with a record containing persuasive but not overwhelming evidence that the accused is guilty of a repulsive crime, the urge to uphold the conviction, so that the crime may not go unpunished, is difficult to resist. It has become increasingly apparent that this court, in particular, is not immune to the siren song of harmless error. (See, e.g., In re Jackson (1992)
Third, compelling reversal whenever the trial court has failed to exclude a defendant’s coerced confession is a simple bright-line rule thаt conserves appellate resources. The rule saves a reviewing court the labor of searching the trial record to evaluate the probable effect of the unconstitutional evidence on the jury’s verdict. The vast majority of convictions, as the majority acknowledges, will not survive such scrutiny in any event. By avoiding case-by-case prejudice evaluations, automatic reversal for coerced confessions “simplifies and expedites the review of criminal cases, for evidence obtained at the expense of constitutional or other basic guarantees is almost invariably prejudicial.” (Gibbs, Prejudicial Error: Admissions and Exclusions of Evidence in the Federal Courts (1957) 3 Vill. L.Rev. 48, 68.)
Fourth, abandoning the rule of automatic reversal sends the wrong signal to police, to prosecutors, and to trial courts.
For prosecutors the question normally is not whether to employ coercive methods in questioning an accused, but whether to offer in evidence a confession obtained by such methods. If the rule of automatic reversal is abandoned, “the problem for the prosecution concerned about reversal would not be to avoid the use of coerced confessions but only to insure their verification by independent evidence. The prosecution might then be encouraged to supplement other evidence by introducing a coerced confession in order to guarantee a conviction. On review, it could defend the conviction on the ground that it was warranted by the independent evidence.” (Meltzer, Involuntary Confessions: The Allocation of Responsibility Between Judge and Jury (1954) 21 U.Chi.L.Rev. 317, 354; see also, Note, Arizona v. Fulminante: Extending Harmless-Error Analysis to the Erroneous Admission of Coerced Confessions (1991) 66 Tul. L.Rev. 581, 591; Kamisar, What Is an “Involuntary” Confession? Some Comments on Inbau and Reid’s Criminal Interrogation and Confessions (1963) 17 Rutgers L.Rev. 728, 737.)
Trial courts, anxious to preserve the products of their labor, are strongly motivated to avoid the commission of any error requiring automatic reversal. Use of a harmless error standard, by contrast, “provides another reduction in pressure on the trial court’s scrutiny of the use of the coerced confession or its fruits.” (Bloch, Police Officers Accused of Crime: Prosecutorial and Fifth Amendment Risks Posed by Police-Elicited “Use Immunized” Statements, 1992 U. Ill. L.Rev. 625, 656.)
The fifth and most important reason to preserve the automatic reversal standard is that it is the only standard that gives sufficient weight to the primal constitutional interest at stake. It has been written that “respect for the individual” is “the lifeblood of the law.” (Illinois v. Allen (1970)
Mosk, J., concurred.
“Stare decisis, et non quieta movere, meaning ‘to adhere to precedents, and not to unsettle things which are established,’ is one of the most important maxims of the law.” (Sunderlin, Stare Decisis (1939) 14 State Bar J. 175.)