MOSK, J. I dissent.
California has adhered to the exclusionary rule as a vital element of criminal law and procedure for nearly two decades. (People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) This court’s adoption of the rule not only was not compelled by United States Supreme Court opinions, it preceded the federal exclusionary rule as applied to the states by six years. (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933].) Thus the California exclusionary rule was and is of wholly independent status, not subject to the shifting sands of federal court interpretations of Mapp and its progeny.
Nevertheless, in a headlong rush to jettison on policy grounds challenged phases of the exclusionary rule,1 the majority seize upon Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], as a convenient tool to use in abandoning well-established principles that have guided courts, prosecutors and defense counsel for many years.2
[211]I
If stare decisis has not totally lost its relevance, the successive cases of William R. Lilliock should be controlling.
In People v. Lilliock (1965) 62 Cal.2d 618 [43 Cal.Rptr. 699, 401 P.2d 4], this court held that statements obtained from the defendant should have been excluded because of police failure to advise him, prior to interrogation, of his constitutional rights and to permit him to remain silent in reliance thereon. The conviction was reversed. On retrial the defendant took the stand and the prosecution used the same invalid statements for purposes of impeachment; this, held the Court of Appeal, constituted prejudicial error. (People v. Lilliock (1968) 265 Cal.App.2d 419, 426 [71 Cal.Rptr. 434].)
Lilliock was consistent with California cases which have held, both in and out of an exclusionary rule context, that inadmissible evidence cannot be used for impeachment purposes. For example, hearsay was held inadmissible to impeach as long ago as the turn of the century. (People v. Conkling (1896) 111 Cal. 616, 623 [44 P. 314]; Zipperlen v. Southern Pac. Co. (1908) 7 Cal.App. 206, 216 [93 P. 1049].) And as recently as last year, after the decision in Harris, evidence obtained in violation of Fifth Amendment rights, when used for impeachment, caused a reversal in People v. Bais (1973) 31 Cal.App.3d 663 [107 Cal.Rptr. 519], and this court unanimously denied a hearing. (Also see People v. Rice (1971) 16 Cal.App.3d 337 [94 Cal.Rptr. 4], another post-Harris case in which this court unanimously denied a hearing.)
The majority concede that involuntary statements cannot be used for impeachment purposes (People v. Underwood (1964) 61 Cal.2d 113, 120 [37 Cal.Rptr. 313, 389 P.2d 937]), but they seem to say that there are varying degrees of involuntariness. That may be true, hypothetically. But to evaluate the nature and effect of compulsion on an ad hoc basis seems to be the kind of metaphysical exercise the Supreme Court sought to avoid by establishing its precise rule in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.C't. 1602, 10 A.L.R.3d 974],
Under the strange new rule adopted by the majority, a statement taken in violation of Miranda is to be excluded because it is deemed to be per se coercive, but despite its coercive character it may be used for impeachment purposes after the court pauses, not merely mid-trial but mid-examination, to pass on its involuntariness. Not only is this a time-consuming and im[212]practical procedure, but the underlying concept that a coercive statement may at the same time be voluntary is a contradiction the reconciliation of which totally eludes me.
The majority theory is directly contrary to this court’s decision in People v. Fioritto (1968) 68 Cal.2d 714, 717 [68 Cal.Rptr. 817, 441 P.2d 625], in which we said: “A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure admissions or confessions.” Once a suspect has exercised his rights pursuant to Miranda, the “form of the renewed queries, however subtle or gentle, cannot 'be considered in determining whether there has been a violation of the stern principles prescribed by the Supreme Court in Miranda.” (Id. at p. 720.)
II
The theory that the use of an invalid statement for impeachment purposes exposes perjury by a defendant is based on the faulty premise that the coerced statement is likely to be true. Given the basically coercive nature of custodial interrogation, a prior inconsistent statement obtained without warning a suspect of his rights is equally likely to be false. Introduction of such a statement, far from aiding the court’s objective of preventing perjury, may actually serve to hobble the search for truth. (Note (1971) 85 Harv.L.Rev. 44, 48.)3
[213]The Oregon Supreme Court reached this conclusion in State v. Brewton (1967) 247 Ore. 241 [422 P.2d 581, 582-583], cert, den., 387 U.S. 943 [18 L.Ed.2d 1328, 87 S.Ct. 2074], in which it analyzed the problem in this manner: “While an argument can be made that ‘voluntary’ unconstitutional confessions can be distinguished from ‘involuntary’ unconstitutional confessions, solely for the purposes of impeachment, this dichotomy does not appeal to us as constitutionally meaningful.
“[The United States Supreme Court has acted] . . . upon the assumption that the exclusionary rule is a necessary procedural device to implement the substantive rights written into the Fourth, Fifth, and Sixth Amendments. This court, accordingly, has adopted the assumption that without the procedural aid of the exclusionary rule those substantive rights would be empty promises instead of constitutional guarantees. . . .
“If we should today adopt a restrictive application of the exclusionary rule, the result could be a major step backward. This court would in effect be saying to the overzealous that police officers will be free in the future to interrogate suspects secretly, at arms length, without counsel, and without advice, so long as they use means consistent with threat-or-promise voluntariness, and so long as they understand that they may file the information only for use to keep the defendant honest. Thus the police could, at their option, take a calculated risk: By giving up the possibility of using the suspect’s statements in the state’s case, they could obtain by unconstitutional means and store away evidence to use if the defendant should elect upon trial to take the stand. As commendable as it may be to prevent perjury, the price of such prevention could be to keep defendants off the stand entirely. In some cases, the temptation to silence a suspect of dubious probity might very well outweigh the desire to conduct a constitutionally valid interrogation. We have concluded that to introduce such a rule could undo much of the recent progress that has been made in upgrading police methods to preserve the rights guaranteed under the Fifth and Sixth Amendments, and/- -would be inconsistent with the trend of our recent decisions.”
Ill
This kind of erosion of the exclusionary rule is not deemed necessary by thoughtful professional law enforcement leaders. In an article in 33 Fed[214]eral Bar Journal (1974) 103, Clarence M. Kelley, Director of the Federal Bureau of Investigation, reviewed the historical background of the exclusionary rule from 1914 (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341]) to 1961 (Mapp). He declared; “This example of development in the criminal procedural law also evidences the constantly competing interests that are found in the law enforcement function. On the one hand there is the public demand that crime be repressed, and on the other the need to ensure the individual’s right to be free of the unreasonable restrictions of government. Here, in this area of criminal procedure the decision has been made by the courts. The law will not allow the government to base a successful prosecution on the illegal activities of a police officer.
“The fact that a man, guilty in fact, may escape justice is not the fault of the judiciary. The courts, no matter how reluctantly, will not permit the evidence into trial, not because they wish to allow the guilty to go free or that the evidence does not have efficacy in establishing the guilt of an accused, but because they will not countenance unconstitutional activities by law enforcement agencies.
“And what are the proper responses of law enforcement to the strict rules that punish their ‘blunders’ so severely? Surely, it cannot be the claims that present-day rules of evidence make its job more difficult or demanding. These are accidentals. Instead, it must be a resolve to accept the rules as defined by the courts and to prepare to meet the challenges they present. This requires a knowledgeable, well-trained officer. He must not only learn the increasing number of technical rules developed by the law, but he must be so skilled in their application that when pressed by on-the-street, unprecedented occurrences, he can respond correctly. This is no simple task. It calls for a continuing training program for law enforcement. It is so difficult because it is so dynamic. It is not enough to learn the language of the rules. The real importance is not to be found in the language, but in the policies behind the rules, their history, and their purposes.
“It may be said that the general aim of FBI Training is to teach both our Special Agents and State and local law enforcement officers attending our schools how to enforce the criminal law in a manner that is not only effective, but also fair, enlightened, and scrupulously lawful.
“This general aim can be considered to be the strong thread pulling together the work of the several academic departments of the FBI Academy [215]at Quantico, Virginia. Needless to say, each department has an individual responsibility of its own in reaching this general goal. The particular responsibility of the Law Department is to insure that the criminal law is enforced in a lawful way.
“Experience shows that one of the most critical problems confronting American law enforcement is this — when a crime is committed, officers are so preoccupied with the question of who is guilty that they zealously plunge ahead to find the answer and in doing so are often forgetful of the narrow limits the law sets to its finding. When they go beyond these lawful limits, they may taint highly probative evidence by violations, technical or flagrant, of the exclusionary rules based on the Fourth,, Fifth, and Sixth Amendments to the Constitution; or they may lose important evidence by failure to keep in mind traditional evidentiary rules such as Hearsay, Best Evidence, and Authentication and Identification of documentary and real evidence. If they act in improper and unprofessional ways, the result is clear — relevant evidence is rendered worthless at trial, their effort is in vain, a man who may be guilty in fact escapes justice under the láw, and the law is enforced in a lawless way.
“A major responsibility of legal training, therefore, is to try to temper the zeal of our students by the light of instruction and learning — to teach not only the letter of the law but also its spirit by explaining the history, principles, policies, and reasons which underlie the legal rules and prohibitions that come into play in the course of various police actions. It must accent the positive, stressing not so much what officers cannot do, but what they can do within the law. This positive approach is necessary . . .
“Another control which is effective and important in limiting the activities of any Special Agent is our own internal rules which are often even more restrictive than the current law on particular procedural matters. Our insistence on innovating internal rules in order to ensure the full constitutional rights of an accused has been a matter of tradition with the FBI. For example, the Supreme Court of the United States, in the case of Miranda v. Arizona, held that an accused in the custody of a law enforcement officer has the constitutional right to remain silent and the right to a lawyer prior to any questioning. In the opinion, the Court pointedly relied upon the fact that providing such rights was an, existing and workable procedure with the FBI.” (Fns. omitted.) (Id. at pp. 104-105, 110-111.) '
Director Kelley concluded that the “FBI owes its existence to specific [216]legal authority; its actions are limited by law; and it believes its performance is properly the subject of legitimate scrutiny.
■“For today’s law enforcement officer, it is not enough that he be correct in most of his actions, pr that he be cognizant 'of most of his responsibilities and their limitations. The consequences to the public well-being are too severe to permit it — a man guilty in fact escapes justice — the rights guaranteed in our Bill of Rights are violated.
“As the demands of the. law have placed higher standards on the conduct of the law enforcement officer, the need has increased for the officer to be well-trained, and knowledgeable in legal matters.'The aim of FBI training is to teach law enforcement personnel .how to enforce the criminal law in a manner that is not only effective, but also fair, enlightened, and „ scrupulously lawful.” (Id. at pp. 109, 111.)
The FBI, which operates throughout the nation, has been able to function effectively without violating individual constitutional rights. So, too, have most state and local law enforcement agencies met their responsibilities lawfully in the two decades since Cahan became the rule in California.
IV
- Even if we were to employ the new test created by the majority, the statement here used for impeachment could not be deemed voluntary. The Court of Appeal majority analyzed this issue thoroughly and in a thoughtful opinion written by Acting Presiding Justice Kerrigan, concurred in by Justice Tamura, concluded the statement was improperly induced and therefore involuntary. I adopt this part of Justice Kerrigan’s opinion (fns. omitted):
Although the trial court’s determination of voluntariness is entitled to great weight, and will not be lightly overturned on appeal, it is the appellate court’s duty to re-examine the uncontradicted facts to determine independently whether or not the accused’s extra-judicial statements were voluntarily obtained. (People v. Sanchez, supra, 70 Cal.2d 562, 571 [75 Cal.Rptr. 642, 451 P.2d 74]; People v. Daniels (1969) 1 Cal.App.3d 367, 374 [81 Cal.Rptr. 675].) The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both. (Payne v. Arkansas (1958) 356 U.S. 560, 562 [2 L.Ed.2d 975, 978, 78 S.Ct. 844].)
The burden is on the prosecution to show that the statements were voluntarily given without previous inducement, intimidation or threat. (People v. [217]Sanchez, supra, 70 Cal.2d 562, 572.) The statements are inadmissible if they were made under “the slightest pressure” by the authorities (People v. Berve (1958) 51 Cal.2d 286, 291 [332 P.2d 971]), or if there was “compulsion or inducement of any sort” (Haynes v. Washington (1963) 373 U.S. 503, 513 [10 L.Ed.2d 513, 521, 83 S.Ct. 1336]), or if the police used “any direct or implied promises, however slight,” or “any improper influence.” (Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 659, 84 S.Ct. 1489].) Whether the statements were obtained by coercion or improper inducement can be determined only by an examination of the entire record and the totality of the circumstances. (Haynes v. Washington, supra, 373 U.S. 503, 513; People v. Sanchez, supra, 70 Cal.2d 562, 572; People v. Daniels, supra, 1 Cal.App.3d 367, 374.)
Under the “totality of the circumstances” test, defendant’s statements must be held to be involuntary as a matter of law. Here, as in Haynes, there was no claim that the defendant was physically abused, deprived of food or rest, or subjected to prolonged periods of uninterrupted questioning. (See Haynes v. Washington, supra, 373 U.S. 503, 504, fn. 1 [10 L.Ed.2d 513, 516].) On the other hand, the uncontradicted evidence was that: (1) Defendant was an inmate in a state prison, being questioned by a senior officer of the custodial force with a probable felony charge facing him; (2) he had unequivocally asserted his right to remain silent; (3) he consistently denied possession of the paraphernalia recovered hy Mr. Wenzel from the corridor floor; and (4) he was told that the conversation would be “off the record.”
Of the listed circumstances, those that most influence our judgment are the first and last. Defendant’s interrogator was a person who had tremendous power to influence, for better or for worse, his life in prison and his future by, for example, granting or withholding privileges, imposing light or arduous conditions of confinement, making favorable or unfavorable entries in official records, or by favorable or unfavorable recommendations to the parole board (defendant’s scheduled parole date was only a few months after the incident). (See Clutchette v. Procunier (N.D.Cal. 1971) 328 F.Supp. 767, 777-778.)
The most reasonable interpretation of the term “off the record” is that defendant believed, and was expected to believe, that any remarks he chose to make would-be kept in strict confidence and would not be used against him in court. In this respect, the case is similar to People v. Johnson (1969) 70 Cal.2d 469 [74 Cal.Rptr. 889, 450 P.2d 265], where a conviction was reversed because, among other things, of admission into evidence of damaging statements made by the accused to a district attorney’s investi[218]gator, who told him “ ‘this had to be a free and voluntary thing, that anything he said could be used against him, that he didn’t have to say anything if he didn’t wish, that the evidence obtained was not admissible in court, but it was an investigative, lead, aid.’ ” (Original italics.) (Ibid., p. 474.)
In view of Keser’s power over defendant, the invitation to talk off the record could reasonably be interpreted as an implied promise of more favorable treatment if he did talk. (See People v. Barrie (1874) 49 Cal. 342, 345 (sheriff told prisoner, “ ‘It will be better for you to make a full disclosure’ ”) and other cases cited in Witkin, Cal. Evidence (2d ed. 1966) § 482, p. 444.) Any such inducement renders a confession inadmissible. (People v. Carr (1972) 8 Cal.3d 287, 296 [104 Cal.Rptr. 705, 502 P.2d 513].)
We do not discuss the cases cited by both sides on the subject of statements obtained by trickery or deception because the facts of the present case do not show deliberate fraud on the part of the questioning officer.
The suggestion by the prosecution that Lieutenant Keser’s interrogation “off the record” was designed not to elicit incriminating responses but only to get to the bottom of the physical encounter is disingenuous. The physical encounter itself, if Officer Wenzel’s version be accepted, would constitute an offense. (Pen. Code, §4501.5.)
The Attorney General asserts that the legitimate and compelling interest of the prison officials in determining the reasons for physical resistance by an inmate outweighed defendant’s Fifth Amendment right against self-incrimination, citing People v. Miller (1969) 71 Cal.2d 459 [78 Cal.Rptr. 449, 455 P.2d 377], cert. den., 406 U.S. 971 [32 L.Ed.2d 672, 92 S.Ct. 2417] and People v. Paton (1967) 255 Cal.App.2d 347 [62 Cal.Rptr. 865], These cases involved the omission of Miranda warnings before noncustodial interrogation which was directed in each case not toward incriminating responses but toward obtaining information needed immediately to save human life. They are not authority for the Attorney General’s untenable position.
On the other hand, nothing in the record compels an inference that Lieutenant Keser had bad motives or did anything other than what he thought his duty required. We may infer from his testimony that at the time of the off-the-record conversation with defendant, he did not in fact intend to use it against the defendant in court.
Nevertheless, whatever the motives behind such interrogations, we condemn the practice of “off-the-record” conversations with inmates ac[219]cused of criminal offenses. Unless the prosecution can meet its heavy burden of proving that any such conversation was initiated by the inmate himself, either of his own free will or on advice of counsel, any statements elicited in the course of such conversations must be deemed involuntary and inadmissible in evidence for any purpose in a trial on the merits of a declarant accused of a criminal offense.
We hold that, in the circumstances of this case, the use of his extrajudicial statements to impeach or rebut defendant’s testimony denied him his constitutional rights against self-incrimination and to due process of law (U.S. Const., Amends. V and XIV; Cal. Const., art. I, § 13), rights which he did not forfeit when he forfeited his liberty by commission of the crime for which he was imprisoned. (See Jackson v. Bishop (8th Cir. 1968) 404 F.2d 571, 576; Clutchette v. Procunier, supra, 328 F.Supp. 767.)
The introduction into evidence of an involuntary confession compels reversal regardless of other evidence of guilt. (In re Cameron (1968) 68 Cal.2d 487, 503 [67 Cal.Rptr. 529, 439 P.2d 633]; People v. Matteson (1964) 61 Cal.2d 466, 469 [39 Cal.Rptr. 1, 393 P.2d 161]; Haynes v. Washington, supra, 373 U.S. 503, 518 [10 L.Ed.2d 513, 523-524];) [End of quote from Justice Kerrigan’s opinion.]
V
For the foregoing reasons I conclude, as did the Court of Appeal, that the judgment should be reversed.
Tobriner, J., and Sullivan, J., concurred.
See, e.g., the dissent in Dyas v. Superior Court (1974) 11 Cal.3d 628 [114 Cal. Rptr. 114, 522 P.2d 674], which relies upon the lone dissent of Burger, C. J., in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 411 [29 L.Ed.2d 619, 635, 91 S.Ct. 1999].
Academic reaction to Harris has been strongly critical. (See, e.g., the comment by Professors Dershowitz and Ely in (1971) 80 Yale L.J. 1198.)
How Harris can be misused by law enforcement is hypothesized by Professors Dershowitz and Ely in 80 Yale Law Journal, supra, at pages 1220-1221: “That this is precisely the situation with regard to the impeachment use of statements secured in violation of Miranda is easily demonstrated. Consider a situation where the police have lawfully arrested a defendant and have obtained enough admissible evidence to make a prima facie case. But their case is not strong, and so ah effort is made to elicit a statemerit by the defendant that would bolster it. The defendant evidences some willingness to talk but when he is asked whether he would like to speak to a lawyer first, he shrugs his shoulders and says, ‘Why not?’ The police know that under Miranda he must be given a lawyer before any further questioning; they also realize that as soon as a lawyer arrives there is little chance that any further questioning will be permitted. Under the Harris rule, what possible incentive would the police have to comply with Miranda by either terminating the interrogation or securing a lawyer? Is it not clear that any reasonable policeman, calculating the advantages and disadvantages of securing a lawyer for the defendant before any further questioning, would always conclude that he should proceed with the questioning in violation of Miranda? If the defendant then makes a statement, the net effect of the violation will be that the police will have in their possession an item of evidence they would not have been able to secure had they complied with Miranda. And this evidence might very well make the-difference between winning and losing the ultimate case. It might well persuade a defendant who would otherwise take the witness stand to ‘waive’ his right [213]to do so. (And it is widely acknowledged that a defendant — at least one without a criminal record — who takes the witness stand and tells his story has a considerably better chance of acquittal than one who stands mute.) Or if the defendant does take the stand, his admission could be used by the Government, ostensibly to impeach him, but realistically to shore up its otherwise weak case.” (Fns. omitted.)