Lead Opinion
Opinion
Defendant was charged in count I with the murder of Kathleen Pairis, and in count II with the murder of his wife Harriet. (Pen. Code, § 187.) It was further alleged that a firearm was used in the commission of both offenses. (Pen. Code, § 12022.5.) Following a jury trial defendant was found guilty on count II of murder in the second degree involving the use of a firearm. The jury was unable to reach a verdict on count I, and a mistrial was declared as to that charge. Thereafter defendant waived trial by jury on count I and the matter was submitted to the court on the transcript of the prior trial. The court adjudged defendant guilty of voluntary manslaughter, a lesser included offense, and found the allegation of use of a firearm to be true. Defendant’s motion for new trial was denied and he was sentenced on each count to state prison for the term prescribed by law, the sentences to run concurrently, He appeals from the judgment (Pen. Code, § 1237), predicating error on the use of certain evidence to impeach his testimony at trial.
Defendant was separated from Harriet on March 21, 1973, after a marriage of only four months. On the afternoon of April 15, 1973, he drove to the home of Kathleen Pairis, one of Harriet’s friends. He there confronted Kathleen, her mother Pemilla Blankenship, and other
The next evening defendant once more went to the Pairis home. In the living room at this time were Mrs. Blankenship, Harriet, Kathleen, two Pairis children and two Disbrow children. Mrs. Blankenship testified she heard a loud knock at the door and when she went to answer she saw defendant through a peephole. She advised Harriet not to open the door and began collecting the children and removing them to an adjoining bedroom.
While in the other room Mrs. Blankenship heard what she described as a “loud blam” and then the voice of Kathleen demanding that defendant leave.
On April 21, 1973, five days after the shooting, Deputy Sheriff Brown observed defendant sleeping in a bloodstained sleeping bag in his car. He inquired about the stains and defendant replied, “I’m shot in the legs. My name is Disbrow. I’ve been thinking about surrendering to you. I’m wanted for murder in Van Nuys.” Defendant also said, “She shot me first.” He had been shot five times.
Defendant was taken to a hospital for treatment. While being wheeled on a gurney from the emergency room he was interviewed by Detective Yost, who was surreptitiously taping the conversation on a concealéd
At trial defendant interposed a defense of self-defense, contradicting the. testimony of Mrs. Blankenship and claiming he did not fire until after he had been shot by Kathleen.
The People make no claim that defendant’s statements to Detective Yost at the hospital were other than the product of an illegal police interrogation. Miranda made explicit the rule that a suspect’s declaration of intention to remain silent and stand on his constitutional rights cannot thereafter be followed by additional questioning: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off
In Harris v. New York (1971)
In People v. Nudd (1974)
In the present case we reexamine Nudd and its uncritical acceptance of the Harris rationale. A useful starting point in this inquiry is the authority relied on in Harris, itself, i.e., the general availability of an “impeachment exception” to exclusionary rules.
An exclusionary rule analogous to Miranda is predicated on the Fourth Amendment’s proscription of unreasonable searches. (Weeks v. United States (1914)
The Supreme Court reversed, holding the can to be the product of an illegal search, admissible neither as part of the case in chief nor as rebuttal evidence: “[T]he contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine. In cross-examination, in answer to a question permitted over his objection, he said he had never seen it. He did nothing to waive his constitutional protection or to justify cross-examination in respect of
In Walder v. United States (1954)
The Supreme Court affirmed, declaring in a now well-worn passage, “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of h'is untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.” (
The court was careful, however, to reaffirm the integrity of Agnello, stating, “There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, ‘Did you ever see narcotics before?’ ... In holding that the Government could no more work in this evidence on cross-examination than it could in its case in chief, the Court foreshadowed, perhaps unwittingly, the result we reach today ....” {Id., at p. 66 [
The Supreme Court affirmed, noting that “In Walder. . . the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.” (Id., at p. 224 [
The final case in this series is People v. Taylor (1972)
Similarly, in the instant case we are not convinced that Walder supports the proposition that statements elicited in violation of Miranda may generally be used to impeach. Rather we read Walder as reiterating the primary rule of exclusion enunciated in Agnello, absent the peculiar and limited circumstances shown in Walder and discussed in Taylor. Accordingly, we must look elsewhere than to an analogy to search and seizure law if support is to be found for the Harris-Nudd rule.
Miranda itself will not provide this support. Even aside from the strong dictum in that opinion demonstrating that illegally obtained confessions should not be used for any purpose (see fn. 5, ante), there are compelling reasons to disregard Nudd contained in the ratio decidendi of Miranda.
Prior to Miranda state courts were barred by the Fifth and Fourteenth Amendments from admitting into evidence confessions that were “involuntary.” {Brown v. Mississippi (1936)
In People v. Fioritto (1968) supra,
The Harris-Nudd rule would resurrect the remains of the earlier voluntariness test. Neither case by its terms would allow impeachment by use of statements which are “coerced or involuntary.” (Harris, at p. 224 of 401 U.S. [at pp. 3-4 of 28 L.Ed.2d]; Nudd, at p. 209 of 12 Cal.3d.) Thus under Harris-Nudd the following scenario can be anticipated: a defendant will testify in a manner the prosecution considers, contrary to his extrajudicial statement. The defendant will contend that the statement is involuntary under one of the myriad pre-Miranda definitions of that term. It will then be necessary to interrupt the proceedings, not only at mid-trial but at mid-examination, for an evidentiary hearing, the outcome of which will be subject to later review on appeal. Only if the statement is ruled voluntary will it be admissible to impeach. In time there will arise an impressive body of law on the voluntariness issue, rivaling that which presently exists in the area of search and seizure, as various appellate courts grapple on a case-by-case basis with the question
However, our principal objection to the Harris-Nudd rule lies in the considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant’s veracity. The theory of a limiting instruction loses meaning in this context. It is to be recalled that we are here dealing with extrajudicial inculpatory admissions. To instruct a jury that they are not to consider expressions of complicity in the charged crime as evidence that the speaker in fact committed the charged crime, but only for the purpose of demonstrating that he was probably lying when he denied committing the charged crime, would be to require, in the words of Learned Hand, “a mental gymnastic which is beyond, not only [the jury’s] power, but anybody else’s.” (Nash v. United States (2d Cir. 1932)
In addition to the likelihood that police misconduct may be encouraged by Harris, we are further convinced of the impropriety of receipt of this evidence by a significant rationale of the exclusionary rule itself. In People v. Cahan (1955)
We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California.
We are not the first court to reject Harris on state constitutional grounds. In State v. Santiago (1971)
Other courts, while not specifically resting on separate constitutional grounds, have continued to adhere to pre-Harris authority. In United States v. Jordan (1971)
We pause finally to reaffirm the independent nature of the California Constitution and our responsibility to separately define and
In People v. Brisendine (1975)
Because the illegally obtained statements tended to establish that defendant went to the Pairis home in order to use the gun to obtain money, and also that defendant actually shot the victims, they amount to a virtual confession of the charged crime and negation of his trial claim of self-defense. (People v. Powell (1967)
The judgment is reversed.
Tobriner, J., and Sullivan, J., concurred.
Notes
Apparently Kathleen voluntarily opened the door, as the police found no signs of forcible entry.
Specifically, defendant denied threatening anyone on the afternoon of April 15, and said he went to the Pairis home only to tell his wife he was leaving town. He testified that he met Kathleen on the afternoon of the 16th and she told him to come to the house that evening to see his wife. He possessed the loaded gun in order to give it to one Ray Ward in return for a favor. He stated he was admitted to the Pairis home voluntarily and that the occupants appeared to be under the influence of something. Kathleen then allegedly pointed a gun at him and said, “Are you ready for this?” There followed a struggle over the gun and defendant was shot. He testified he then ran for the door, firing as he went, and did not know he had hit anyone until he heard it on the car radio.
On cross-examination defendant was questioned concerning three statements made to Detective Yost which conflicted with his trial testimony. The first was that he went to the Pairis home to get money to leave town, and that the only way he could get the money was with a gun. The second statement concerned the location of the principals at the time defendant was shot. The third statement concerned defendant’s specific recollection of shooting his wife. These statements were then reintroduced when Detective Yost testified in rebuttal.
Because of our disposition herein we find it unnecessary to reach defendant’s remaining contentions.
The Miranda language was as follows: “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements, are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.’’ (Italics added.) (384 U.S. at pp. 476-477 [
The lack of a limiting instruction was held not to be error: “Granted, even though not requested to do so, the trial court must instruct the jury on the general principles of law raised by the evidence. [Citations.] But absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered.” (
The Walder court also made clear that if the defendant had merely denied possession of the heroin which was the basis of the prosecution, no impeachment would have been permitted; “the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.’’ (Id., at p. 65 [
It is interesting to note that in neither Harris nor Nuclei was the traditional safeguard against improper use of impeachment evidence, the limiting instruction, of any effect. In Harris both sides argued the substance of the statements, and in Nudd no limiting instruction was given. (See fn. 6, arte.)
Of course, we do not presume to interpret the above-discussed federal decisions, in a manner contrary to that established by the United States Supreme Court as a matter of federal law. We discuss these cases only in order to determine whether under state law they are persuasive authority for interpreting California cases such as Fioritto and Tavlor to furnish justification for an impeachment exception to the self-incrimination clause of article I, section 15, of the California Constitution. In short, our decision herein is not based on a different reading of A gnello- Walder, .but rather a different view of the parameters of the independent state self-incrimination clause.
For exarriple, the giving of proper warnings would obviously not render a confession voluntary if the warnings were followed by a physical beating.
The immense tax on judicial resources flowing from a rule requiring questions of voluntariness to be decided on a case-by-case basis is indicated by Justice Tom Clark’s dissent in Haynes: “In light of petitioner’s age, intelligence and experience with the police, in light of the comparative absence of any coercive circumstances, and in light of the fact that petitioner never, from the time of his arrest, evidenced a will to deny his guilt, I must conclude that his written confession was not involuntary. I find no support in any of the 33 cases decided on the question by this Court for a contrary conclusion.” (Italics added.) (Haynes v. Washington (1963) supra,
Indeed, there is an unsettled question of voluntariness in the case at bar: is police deception tantamount to physical or psychological coercion? Miranda stated, “any evidence that the accused was . . . tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” (
This was, of course, six years prior to the United States Supreme Court decision in Mapp v. Ohio (1961)
Doubtless official reliance has heretofore been placed on both Harris and Nudd. Accordingly, except as to the defendant in the case.at bar the rule we now adopt will apply only to trials begun after this opinion becomes final.
Academic reaction to Harris has in general been strongly critical. (See, e.g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations (1971) 80 Yale L.J. 1198; Note, Harris v. New York: the Retreat from Miranda (1972) 32 La.L.Rev. 650; Note (1971) 40 Fordham L.Rev. 394; Note (1972) 85 Harv.L.Rev. 44; Note (1971) 24 Vand.L.Rev. 843; Note (1971) 39 Geo.Wash.L.Rev. 1241; Note (1973) 73 Colum.L.Rev. 1476.)
Concurrence Opinion
I concur. As I joined the majority in People v. Nudd (1974)
Moreover, as the majority opinion so convincingly sets forth, adherence to Harris and Nudd will force revival of numerous, elusive tests of voluntariness to determine if statements obtained in violation of Miranda are admissible or inadmissible for purposes of impeachment. A host of appellate opinions on this imprecise test would soon be spawned. Miranda eliminated the need for such inquiries and I believe that salutary effect should not be thwarted.
Finally, I find that fundamental fairness to individuals accused of the commission of a public offense demands that Harris-Nudd be rejected. Regardless of the precision of instructions limiting the trier of fact to consideration of the illegally obtained statements solely for impeachment purposes, it is simply unrealistic to believé that such statements will not
Dissenting Opinion
I respectfully dissent. I cannot join the present majority in their sudden and disquieting deviation from the clearly applicable decision of the United States Supreme Court in Harris v. New York (1971)
In the matter before us defendant testified on direct examination at his murder trial that he went to the Pairis home to tell his wife Harriet that he was leaving town; that he brought a gun with him to give to Ray Ward; that Kathy Pairis started shooting at him, he felt pain and ran for the door, firing as he went; and that he did not learn until later that he had shot anyone. In his prior statement to the officers, however, defendant candidly admitted that he brought his gun in order to obtain money with which to leave town, and that when the shooting started, he ran across the room and shot both Kathy and Harriet in the head.
Under the rule announced by the present majority the juiy are not permitted to learn of this contradictory statement in appraising defendant’s credibility since the officers failed when taking defendant’s statement to comply with the requirements enunciated in Miranda v. Arizona (1966)
The issue before us is relatively narrow. Since Harris is squarely in point are we bound by it and, if not, is it either wise or necessary to reject it?
The majority, while initially arguing in extended fashion that the United States Supreme Court in Harris was not following its own appropriate precedents, finally concede that pursuing this form of analysis is hardly our function, and conclude by invoking the “independent state self-incrimination clause” contained in article I, section 15, of the California Constitution. While the conclusion appears only in a footnote the independent state ground is absolutely central to the majority’s thesis, and leads them to declare that, notwithstanding the near identity of language in the federal and California Constitutions, “Harris is not persuasive authority in any state prosecution in California.”
It is both readily apparent and significant that the self-incrimination clauses of the Fifth Amendment to the United States Constitution and of article I, section 15, of the state Constitution contain virtually identical language. Also, the Fourth Amendment and article I, section 13, of the state Constitution employ similar language in prohibiting unreasonable searches and seizures. The very obvious and substantial identity of phrasing in the two Constitutions strongly suggests to me the wisdom, insofar as possible, of identity of interpretation of those clauses. The same considerations of policy, need for uniformity and avoidance of confusion apply with equal force to the Fourth and Fifth Amendment protections contained in article I of our state Constitution.
These important factors of deference and of policy have been,recently well expressed in Justice Clark’s dissenting opinion in People v. Norman (1975)
I believe the foregoing reasoning is eminently sound, equally applicable to self-incrimination language that is nearly identical in the two Constitutions, and that no special, unique, or distinctive California conditions exist which justify a departure from a general principle favoring uniformity. In my view, in the absence of very strong countervailing circumstances we should defer to the leadership of the nation’s highest court in its interpretation of nearly identical constitutional language, rather than attempt to create a separate echelon of state constitutional interpretations to which we will advert whenever a majority of this court differ from a particular high court interpretation. The reason for the foregoing principle is that it promotes uniformity and harmony in an area of the law which peculiarly and uniquely requires them. The alternative required by the majority must inevitably lead to the growth of a shadow tier of dual constitutional interpretations state by state which, with temporal variances, will add complexity to an already complicated body of law.
The vagaries and uncertainties of constitutional interpretations, particularly in the Fourth and Fifth Amendment sectors of our criminal law, are the hard facts of life with which the general public, the courts, and law enforcement officials must grapple daily. This condition necessarily breeds uncertainty, confusion, and doubt. It will not be eased or allayed by a proliferation of multiple judicial interpretations of nearly identical language.
The case before us presents a classic example, in my opinion, of the fallacy of the majority approach. Here the majority propose to rely on and encourage development of a separate California self-incrimination privilege notwithstanding the near identity of language in the Fifth
The simple fact is- that in the instant case there is in reality only one privilege long recognized by the common law, subsequently incorporated in the federal Constitution, and much later adopted in the California Constitution. Nonetheless, under the majority holding notwithstanding the fact that we have but one privilege expressed in almost identical language they insist on multiple interpretations. The logic of this approach totally escapes me. The transient exhilaration drawn from our assertion of an independent “California” rule in this area will, in my opinion, speedily pass and leave in residue an unnecessary compounding and multiplicity of constitutional rules that should, so far as possible, be simple, uniform, consistent, and cohesive. The majority’s approach makes transparently clear that the vigor with which the newly discovered separate and independent state constitutional interpretations are asserted ebbs and flows depending upon the approval or rejection by the majority of the particular constitutional interpretation which, in a given case, emanates from the federal Supreme Court. This accordion-like effect, this divergence and convergence, though in a sense predictable with the shifting winds of judicial policy and personal predeliction, is not calculated to produce that kind of uniformity or harmony conducive to
2. The Harris-Nudd Rule
Before proceeding to an analysis of the merits of Harris-Nudd, I emphasize the self-evident, overriding, paramount, and fundamental purpose of a trial itself—namely, the ascertainment of truth. As the oath binds every juror “truly” to try the matter and to render a verdict that is “true” so the testimony of every witness is given under oath or affirmation that what is said is “the truth, the whole truth and nothing but the truth.” All of the procedural and substantive processes of law at every stage of litigation, civil and criminal, have an unspoken focus on this single and central inquiry—what and where is the truth? We have, in faithful adherence to fundamental protections, circumscribed this search for truth with safeguards rooted in our Constitutions and in our concepts of fairness. This is fundamental and it is proper. We do not subject a defendant charged with crime to the rack and screw though we might thereby ascertain the truth. We do not utilize involuntary confessions. We adhere to many other important restraints in the pursuit of the truth, but we never abandon the search.
The genesis of the exclusionary rule lies very near the intersection of the twin procedural functions—on the one hand “truth-ascertainment” and on the other, privilege protection enfolding a defendant charged with crime. The rule is a creature of the United States Supreme Court judicially declared in Weeks v. United States (1914)
Subsequently, in 1954, the Supreme Court held in Walder v. United States, supra,
The full import of the Warren Court’s foregoing language of 21 years ago is manifest. What it clearly meant was that while, on the one hand, tainted evidence may not be utilized by the prosecution’s case in chief, on the other hand, no judicially constructed screen will be permitted to shield from the fact finder the contradictory impeaching testimony or physical evidence when defendant himself takes the stand and testifies directly contrary to the impeaching testimony or evidence.
Something very fundamental is involved at this point, whether the case presents Fourth or Fifth Amendment considerations. In the matter before us defendant is entitled to face a prosecution case against him stripped of any reference whatsoever to evidence obtained in violation of Miranda. The exclusionary rule mandates this result and I fully concur both in its propriety and in its effect. Must we in our search for truth, however, go the second mile and afford a defendant during his trial, additionally, with an impenetrable sanctuary, unavailable to all other witnesses, to which he may retreat enfolded with complete and continuing immunity from any disclosure that the evidence in question may
The issue before us involves only a slight variant of a theme developed long ago. Agnello and Walder concerned the admissibility, for impeachment purposes of illegally obtained evidence. Here we are concerned, of course, with statements taken in violation of Miranda principles, again for the sole purpose of impeachment not for prosecutorial aid in its case in chief. Surely, the rationale of Walder is fully applicable to cases in which, as here, the defendant takes the witness stand on his own behalf and testifies to matters in conflict with his prior statements. Under these circumstances defendant should not be permitted to use a Miranda violation as “a shield against contradiction of his untruths.” (Walder, p. 65 [98 L.Ed. p. 507].) In this situation as in Walder, “... there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” (Id.) Notwithstanding the foregoing clear language of Walder, the majority profess to find difficulty in applying Walder to impeachment by use of Miranda violated statements. They insist that the Walder language is merely “reiterating the primary rule of exclusion enunciated in Agnello, absent the peculiar and limited circumstances shown in Walder . ...” I find no such limitation in meaning or purpose. To the contrary, it seems to me that the Walder language, reasonably read, is plain, simple, and unambiguous. It finds no valid public or private purpose is served by permitting a defendant to erect an “off limits” sign thus blocking and concealing the fact of defendant’s perjuiy from all view of the searchers for truth. In summaiy, Harris-Nudd represents, in my opinion, no dramatic or unprecedented shift in direction either of the United States Supreme Court or of this court, but rather, the unfolding of a consistent and natural sequel to earlier precedents well founded in logic and public policy.
I turn now to the reasons advanced sequentially by the majority for abandoning Harris-Nudd and with deference suggest that neither singly nor in the aggregate are they persuasive.
The majority place principal reliance and emphasis, however, on their belief in the inability of a juiy to follow proper instructions limiting the jury’s consideration of the evidence to impeachment of credibility rather than as substantive evidence of the charged crime. The majority find in Harris-Nudd a “considerable potential” of risk. Such a contention leads us deeply into a “never-never-land” of purest speculation. No empirical evidence can be marshalled either for or against the argument. It may be said, however, that such an additional burden adds no discernible weight to the difficulties already facing the average jury in following many instructions. It may equally be urged that the “gymnastics” envisioned by the majority are matched by the “acrobatics” imposed on any jury in comprehending instructions on numerous definitions of crimes, defenses, criminal intent, diminished capacity or, for example, the jury’s consider
We have ourselves previously confronted this precise problem, trusted the discretion of the trial court, and found the difficulty not insurmountable. In People v. Sweeney (1960)
We have repeatedly expressed the view that we will assume a jury has followed the court’s instructions and' in the absence of some showing otherwise will not presume that it has not. I do not share the majority’s sudden anxiety that adherence to Harris imposes unreasonable demands beyond the jury’s capacity. To speculate as to the probability that in general a jury either does not understand or alternatively will not follow an instruction limiting its consideration of evidence as impeaching and affecting credibility only, seems to me clearly insufficient ground upon which to base so sweeping a rule as that which totally insulates a defendant’s possible perjury.
The majority next conclude that adoption of Harris-Nudd will remove any incentive to comply with Miranda thus creating “irresistible pressures on law enforcement personnel to secure a confession.” This familiar argument was considered and- flatly and, in my view, properly rejected by the Supreme Court in Harris itself when it said: “The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief. [If] Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the. adversaiy process. . . . flf] The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (
Furthermore, I do not think it is realistic to assume that on a large scale, law enforcement officers will, as speculated by the majority,
The final argument advanced by the majority, paraphrased, is that by permitting use of the evidence to impeach we in some way impair our dignity by lending our aid to “dirty business.” The validity of such an easy generalized assertion and the appropriate answer must be weighed with close attention to the specifics of the context from which the majority’s claim arises. A person is charged with crime. In the investigatory phases of the case, testimonial or physical evidence is uncovered as a result of conduct violative of Miranda. The evidence must be and is excluded in its entirety from the People’s case in chief. The fact finder never learns of its existence. When, however, defendant takes the stand and under oath makes statements which are subject to impeachment by available evidence obtained in violation of Miranda,, may it fairly and reasonably be said that the court engages in “dirty business” by permitting, for this limited purpose, the trier of fact to learn of this evidence? I suggest that it could perhaps be argued with equal force that application of the present majority view which mandates concealment of perjured testimony from those charged under oath with the responsibility of discovering the truth may in itself constitute a form of “dirty business.”
It is at this point, I believe, that we reach the crux of the issue and arrive at those honest disagreements which separate us. The difficult questions raised involve conflicting policy considerations. How are we to weigh in the balancing pans of justice the need to afford an accused defendant procedural safeguards and protections on the one hand, and the constant pursuit of “truth, the whole truth, and nothing but the truth” on the other? Where shall we draw the line? What weight, what value, shall we ascribe to each element? Are we to elevate one claim above the other, or are we to seek, if possible, an accommodation of both? My differences with the majority are relatively simple. They insist that for all purposes and in every circumstance evidence obtained in violation of Miranda v. Arizona is excluded. I would permit an
So very soon after Nudd the present majority reverse directions and now propound an all-encompassing rule extending the California privilege against self-incrimination to preclude any use whatever of the evidence in question. In doing so they disregard diametrically contrary views of the United States Supreme Court, author of Miranda itself, which in terms both ringing and repeated, has expressed itself as accepting the necessity for reasonable limitations on its Miranda rule.
The majority’s treatment of the reception of Harris by our sister states is most revealing. They find comfort in the fact that in 1971 the Supreme Court of Hawaii and in 1973 the Texas Court of Criminal Appeals have also declined to. follow Harris. (In fairness I must note that my research discloses one additional state, Pennsylvania, by a 4-3 vote also refused to adopt the Harris rule.) (Commonwealth v. Triplett (1975)
What the majority have failed to disclose, however, is that Harris has been adopted and approved by the vast majority of states which have considered the question. The dissenting opinion of Pennsylvania Chief Justice Jones in Triplett, supra, lists cases from 30 states (other than Nudd in California) which have either adopted Harris or cited it as controlling. (Commonwealth v. Triplett, supra,
In overwhelmingly turning aside the present majority’s argument some of the expressions of our sister states are significant. For example, the New Jersey Supreme Court held that “We conclude that Harris as applied herein [statements used for impeachment only] is a valuable truth-finding mechanism which does not impinge on a defendant’s federal or state constitutional rights.” (State v. Miller, supra, at p. 39, italics added.) As stated by the Supreme Judicial Court of Massachusetts “Like most courts which have considered the point ... we decline the invitation to adopt the reasoning of the dissenting justices in [Harris].” (Commonwealth v. Harris, supra, at p. 117.) Even in Pennsylvania, one of only three states on which the majority may rely the court was veiy closely divided, four justices declining to apply Harris. Justice Pomeroy while concurring in the judgment of reversal felt that Harris was factually distinguishable from Triplett and urged that it was unnecessary to reach the question whether or not to adopt'the Harris rule. In doing so he used language, echoing Justice Thompson’s opinion in Norman, supra, which to me is both pertinent and persuasive. “The interests of uniformity in the development of basic principles of constitutional law involving, as in this case, rights which are expressed in identical terms in state and federal constitutions, together with the deference that is due the pronouncements of the Supreme Court of the United States, indicate that we should chart a separate course only where compelling reasons for doing so are advanced. No such reasons have been presented in this case.” (
The present majority herein completely reverse the course so recently adopted by us. Unfortunately they pursue this new bearing when it is very apparent that the parade is marching in the other direction.
Nor do I find any more persuasive the majority’s resort to academia. They point to one article and four student notes published during the period 1971-1973 as authority for the proposition that “academic reaction to Harris has in general been strongly critical.” A more recent article by Professor John K. Kaplan, of the Stanford Law School, focuses on The Limits of the Exclusionary Rule ((1974) 26 Stan.L.Rev. 1027) and casts very serious doubts on the majority’s conclusion. Professor Kaplan notes that neither Miranda nor the exclusionaiy rule itself are constitutional doctrine, but rather attempts to “protect values established in the Constitution.” Accordingly, he argues, referring to the exclusionary rule, that “. . . its restriction is hardly a radical step. . . . [If] . . . ‘The exclusionary rule is merely one arbitrary point on a continuum between deterrence of illegal police activity and conviction of guilty persons. As a stopping point, it can be justified solely on the ground that it achieves a better balance between these twin goals than would other points. If another stopping point does the job better, it should replace the current exclusionary rule.’ ” As Professor Kaplan also observes, to suggest reasonable limits to the exclusionary- rule is not to tamper with sacred dogma. Rather it may well constitute the necessary “pruning” which will strengthen the rule’s application in a more proper and restricted area. He concludes that both the value and costs of the rule in “utilitarian” terms are singularly unpersuasive, and the price of the rule in a “political sense” is so high as to “jeopardize its existence regardless of its presumed benefits.” Properly noting that “one does not have to oppose fourth amendment values, however, in order to object to the exclusion of evidence,” (p. 1038) Professor Kaplan suggests the wisdom of removing the exclusionary rule altogether from aggravated cases concluding that “the fact remains that the case for eliminating serious crimes from the coverage of the rule is a strong one.” It will be recalled that in the instant case Disbrow is charged with two murders—the most serious of all offenses. Contrary to the majority, I think it not at all clear that academic
In the final analysis resolution of the case reduces itself not alone to honest differences in opposing interpretations, but to opposing philosophies as well. The majority impose a flat rule of exclusion. I would elevate the People’s interest in the fact finding process. I think it wholly inappropriate and unwise, save in most unusual situations, to compound the analytical process by creating a duplicate series of constitutional rules—federal and state. Furthermore, even were it wise to interpret the California constitutional language in a different manner the majority, while rejecting, have not answered the logic or the reasoning of the United States Supreme Court in Harris wherein it (in reliance on Walder) stated: “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (
Facing the problem anew courts might adopt one of three possible alternative positions. They might include the perjured testimony for all purposes whatever, whether by way of impeachment or as substantive evidence in the prosecution’s case in chief. They might exclude the evidence for all purposes, as proposed by the majority. They might, as the federal Supreme Court in Harris, and as in Nudd, adopt the middle ground of excluding the challenged evidence in the prosecution’s case in chief but permitting it for impeachment. It seems to me that the Harris-Nudd rule strikes a proper and reasonable balance between the pre- Weeks rule of unlimited admissibility, and the majority’s proposal of total exclusion.
Finally, it is always important to bear in mind, of course, a statutory safety valve. Trial courts continue to maintain in both civil and criminal cases a broad discretion under Evidence Code section 352 to exclude evidence if the danger of prejudice substantially outweighs its probative
I believe the present majority seriously err in declining to follow the ruling of the United States Supreme Court in Harris, in reversing our own very recent holding in Nudd, and in departing from a position adopted by so many of our sister states. Our task is to seek fairness and an even-handed and dispassionate resolution of the conflicting considerations raised by the issues herein. In these efforts we will do well to be reminded of, and reflect deeply upon, the sage admonition of a very great legal scholar, Justice Benjamin N. Cardozo who more than 40 years ago in Snyder v. Massachusetts (1934)
I would affirm the judgment.
McComb, J., and Clark, J., concurred.
Respondent’s petition for a rehearing was denied March 10, 1976, and the opinion was modified to read as printed above. McComb, J., Clark, J., and Richardson, J., were of the opinion that the petition should be granted.