RICHARDSON, J. 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) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643] and in their reversal of our own recent decision in People v. Nudd (1974) 12 Cal.3d 204 [115 Cal.Rptr. 372, 524 P.2d 844]. Having not participated in the court’s consideration of Nudd, I owe no particular allegiance to the rule therein adopted, but am convinced that Nudd was correctly decided.
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) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. Not only does the new rule announced by the present majority directly conflict with Harris, but also with the rationale of two earlier United States Supreme Court cases, Agnello v. United States (1925) 269 U.S. 20 [70 L.Ed. 145, 46 S.Ct. 4, 51 A.L.R. 409], and Walder v. United States (1954) 347 U.S. 62 [98 L.Ed. 503, 74 S.Ct. 354], Thus, even had Harris never been decided, the trial court followed applicable precedent in admitting the evidence for impeachment purposes only.
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?
[1181]. Independent State Ground
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) 14 Cal.3d 929, 940-941 [123 Cal.Rptr. 109, 538 P.2d 237], wherein he quotes the following language from Justice Thompson’s Court of Appeal opinion in Norman: “ The Fourth Amendment to the United States Constitution and article I, section 19 [now section 13] of the California Constitution are essentially identical in wording. [Fn. omitted.] Decisions of the United States Supreme Court construing constitutional phraseology are highly persuasive. [Citations.]. . . The persuasion of the United States Supreme Court decisions is particularly strong in the area of search and seizure and the exclusionary rule. California courts have for years spoken of the basis of the exclusionary rule as the Fourth Amendment. A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the initiative process to overrule the California decision with its concomitant harm to the prestige, influence, and function of the judicial branch of state [119]government. . . . The more courts feel free to adopt ground rules unpersuaded by contrary decisions of other courts, the greater the likelihood there is of uncertainty in those ground rules. The uncertainty is mitigated if proper deference is paid United States Supreme Court holdings. [1Í] ‘Thus, something more than personal disagreement by a majority of members of a state court with the decision of the United States high tribunal on search and seizure is required if the persuasion of that court is not to be followed. . . . [T]he state system should accept the interpretation of the United States Supreme Court of language in the federal Constitution as controlling of our interpretation of essentially identical language in the California Constitution unless conditions peculiar to California support a different meaning.’ ”
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 [120]Amendment to the federal Constitution and article I, section 15, of the California Constitution. The inevitable result is two rules or standards of interpretation of single constitutional language. Furthermore, the majority blithely ignore what has long been recognized, namely, that the privilege against self-incrimination is a single common law privilege which existed long before its incorporation into either the United States or California Constitution. (See 8 Wigmore, Evidence (1961) § 2251, p. 295.) On principle, even in situations of varying constitutional expressions of a single common law privilege uniform interpretation should normally be required and expected. As Professor Wigmore put it: “The variety of constitutional and statutory phrasing neither enlarges nor narrows the scope of the privilege as developed in the common law. . . . [T]he detailed rules are to be determined by the historical and logical requirements of the principle regardless of the specific words of the particular constitution, . .(Id., § 2252, p. 326.) A fortiori, as in the matters before us when constitutional language approaches identity, the compulsion toward uniformity of interpretation should be even greater. That being so, on what basis do the majority hold that the language of our state Constitution should be construed in a different manner than the substantially identical language of the Fifth Amendment privilege as construed in Harris? What circumstance peculiar to California requires that we do so? I can think of none. The majority have suggested none.
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 [121]the logical and uniform development of constitutional law. As a device of constitutional interpretation the majority approach is dubious and suspect. As an instrument of judicial policy it is illogical and unnecessary.
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) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341]. Following Weeks in 1925, the Supreme Court in Agnello v. United States, supra, 269 U.S. 20, 35 [70 L.Ed. 145, 150], condemned an attempt by the prosecution to introduce illegally obtained evidence during improper cross-examination regarding defendant’s prior knowledge of narcotics. The court strongly implied, however, that had defendant testified on direct examination regarding his lack of knowledge, that testimony could have been rebutted by reference to illegally obtained contraband.
Subsequently, in 1954, the Supreme Court held in Walder v. United States, supra, 347 U.S. 62, 66 [98 L.Ed. 503, 507-508], that a defendant’s direct examination testimony opens the door to impeachment by the prosecution despite the fact that an illegal search and seizure had tainted [122]the impeaching evidence and barred its introduction as part of the People’s case in chief. The underlying principles on which the United States Supreme Court relied in Walder are made abundantly clear in its own language: “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 his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.” (p. 65 [98 L.Ed. p. 507].) The foregoing language may be, as the majority insist (ante, at p. 108) “well worn.” It is also unanswered. Further, Walder, in amplification adds: “Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the 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. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility. ” (Italics added, fn. omitted.)
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 [123]prove him a liar? What constitutional or policy consideration requires imposition of such a judicial artifice? I suggest, none. For it is at this point that the policy of procedural protection for defendant and the policy of full factual disclosure to the trier of fact must fall into a balance. Lines must be drawn, and conflicting factors carefully weighed, in affording a defendant appropriate procedural protections while at the same time assuring to the trier of fact, within limits, the fullest possible access to relevant material evidence.
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.
[124]It is argued, first, that the rule of total and complete exclusion of the perjured evidence will eliminate or reduce the necessity of litigating the issue of voluntariness of defendant’s statements. There can be no doubt that the issue is resolved, but at what price and for what purpose? Reduced to its essentials, the argument stresses judicial convenience. We are to reject the rule adopted by the United States Supreme Court and by ourselves so very recently because we will not then have to determine if the statement in question is “voluntary.” The majority emphasize our expression in People v. Fioritto (1968) 68 Cal.2d 714, 717 [68 Cal.Rptr. 817, 441 P.2d 625], describing “a principal objective of Miranda” as assuring a simple “precise manual” containing “a single, uncomplicated test” for determining coercion. The majority insist that the Miranda court adopted a simple “manual” for determining the presence or absence of coercion. However, the “manual” has been revised by its author. After Miranda came Harris. The surface appeal of “simplicity,” if in fact a Miranda application is “simple,” has yielded to a more logical accommodation of competing interests. With due respect, I suggest that judicial convenience is a very thin reed upon which to lean as a basis for requiring the exclusion for all purposes of perjured testimony. Further, the majority’s view is unrealistic for it ignores the fact that, even assuming compliance with Miranda, the question of the voluntariness of the accused’s statements is not eliminated but remains in every case. More importantly, of course, is the serious question whether we are going, at this juncture, to permit, as a policy, judicial convenience to take precedence over the ascertainment of the truth. I respectfully suggest that the majority’s position at this point represents an unwarranted reversal of priorities in the scale of personal and societal interests locked into a criminal trial.
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[125]ations of prior consistent or inconsistent statements. (See former CALJIC Nos. 2.13 and 2.14.) Indeed, this exact process, which the majority find fraught with such hazard, sometimes is statutorily mandated. For example, under Evidence Code section 355 when evidence is admitted as to one party or for one purpose, but inadmissible as to another party or purpose, if requested the court must instruct the jury as to the limited scope of the evidence. This principle has wide application in both civil and criminal trials, and has been a familiar and accepted trial procedure for years. (See, e.g., BAJI No. 2.05; Witkin, Cal. Evidence (2d ed. 1966) §316, pp. 279-280.)
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) 55 Cal.2d 27, 42 [9 Cal.Rptr. 793, 357 P.2d 1049], decided before the adoption of Evidence Code section 352, we explained: “This question of the admissibility of evidence for one purpose for which it is properly admissible, where the danger exists that it may be improperly considered by the jury for another purpose to establish which it is not admissible was given careful consideration in Adkins v. Brett, 184 Cal. 252 [193 P. 251], The court in that case said at pages 258-259: [If] ‘The rule, then, is that the admissibility of such evidence as that under discussion, admissible because competent as to one point, is not destroyed by its incompetency as to other points which it yet logically tends to prove. The danger, however, of the jury misusing such evidence and giving it weight in determining the points as to which it is incompetent, is manifest. In such a situation, as Professor Wigmore puts it . . . “the only question can be what the proper means are for avoiding the risk of misusing the evidence.” Answering this question, Professor Wigmore says: “It is uniformly conceded that the instruction [to the jury] of the court [that the evidence is competent only as proof of one point and must not be considered as proof of others] suffices for that purpose; and the better opinion is that the opponent of the evidence must ask for that instruction; otherwise he may be supposed to have waived it as unnecessary for his protection.” [H] ‘The general correctness of this statement cannot be doubted. But we doubt if the learned author intended to say more than that the opponent of such evidence is always entitled to such an instruction for his protection, if he asks for it, and that generally it will suffice. But it is not difficult to imagine cases where it would not suffice, and the opponent could justly ask for more. The matter is largely one of discretion on the part of the trial judge.’. . . This rule of Adkins applies equally to criminal prosecutions and ‘it is for the trial court in the exercise of its judicial discretion to determine whether [126]its (the evidence) probative value is outweighed by its possible prejudicial effect and to admit or exclude it accordingly . . . .’ (People v. McCaughan, 49 Cal.2d 409, 421-422 [317 P.2d 974].)” (Id, at p. 43; see also People v. Burton (1961) 55 Cal.2d 328, 348-350 [11 Cal.Rptr. 65, 359 P.2d 433].)
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.” (401 U.S. 222 at pp. 225-226 [28 L.Ed.2d 1 at pp. 4-5] [citations and fn. omitted; accord, Oregon v. Hass (1975) 420 U.S. 714, 722-724 (43 L.Ed.2d 570, 578, 95 S.Ct. 1215)].)
Furthermore, I do not think it is realistic to assume that on a large scale, law enforcement officers will, as speculated by the majority, [127]deliberately and intentionally violate Miranda, thus rendering wholly unusable the evidence thereby secured in their case in chief, in the hope that it will become available, in a more limited sense, by way of impeachment. Far more important to a criminal prosecutor is the building of the People’s principal case by the gathering of proof against a defendant, rather than by the assembling of impeachment evidence which may never be used if defendant does not take the stand, or which under Evidence Code section 352 may be excluded even if defendant does take the stand.
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 [128]accommodation excluding the evidence in its entirety in the case in chief but permitting its use for impeachment purposes. I discern no constitutional or .policy consideration which should deny the fact finder, on its trail of the truth, knowledge of the impeachment evidence. In my view this neither involves us in “dirty business,” nor mandates our concealment of perjury, but rather constitutes a fair, balanced, reasoned comparison and evaluation of conflicting social and personal rights and policies.
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) 348 Pa. 98 [341 A.2d 62].) They have also found that in 1971 the United States Court of Military Appeals in interpreting the requirement of the Manual for Courts Martial was unaffected by Harris. While I have great respect for the Supreme Courts of Hawaii and Pennsylvania, the Texas Court of Criminal Appeals, and the Court of Military Appeals in its construction of the Courts Martial Manual, I confess to an even greater bias toward the United States Supreme Court in its interpretation of the Fourth and Fifth Amendments to the United States Constitution, and its clear majority holding in Harris, which so recently we felt was controlling.
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, 341 A.2d 62 at p. 67, fn. 2.) These include Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, [129]New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Tennessee, Utah, Washington, and Wisconsin. I believe that at least three other states (Alabama, New York, and South Carolina) have also adopted the Harris rule in addition to the 30 listed in Triplett. (See Roynica v. State (1974) 54 Ala.App. 436 [309 So.2d 475, 482]; People v. Fiore (1974) 34 N.Y.2d 81 [356 N.Y.S.2d 38, 312 N.E.2d 174, 179]; and State v. Mercado (1974) 263 S.C. 304 [210 S.E.2d 459, 461].) Significantly, of the 33 states which have approved Harris at least 5 (Florida, Illinois, Indiana, Massachusetts and New Jersey) addressed and flatly rejected the principal thesis of the present majority that state constitutional provisions may be used to avoid Harris. (See State v. Retherford (Fla. 1972) 270 So.2d 363; People v. Sturgis (1974) 58 Ill.2d 211 [317 N.E.2d 545, 547]; Johnson v. State (1972) 258 Ind. 683 [284 N.E.2d 517, 520]; Commonwealth v. Harris (1973) 264 Mass. 236 [303 N.E.2d 115, 117]; State v. Miller (1975) 67 N.J. 229 [337 A.2d 36, 39].) One may seriously and fairly question the strength of a juridical light that is discerned by so few and invisible to so many.
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.” (341 A.2d 62 at p. 66, fn. omitted, italics added.) Chief Justice Jones in dissent [130]amplified his criticism of Triplett saying, “The majority’s holding will only lead to the perpetration of obvious lies in court. The prosecution has already been penalized in its case in chief, and there is no reason that our exclusionáry rules should be used as a tool to defraud the fact finder at trial. I fear that the majority opinion puts the Court’s imprimatur upon perjury.” (Id., at p. 67, fn. omitted.)
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 [131]literature is “strongly critical” of reasonable limitations, of the Harris type, on the exclusionary rule. While remaining vigilant in the protection of an accused from untoward police conduct neither can we disregard, in maintaining a procedural balance, the constant and fundamental purpose of the trial itself, ascertainment of the truth.
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.” (401 U.S. 222 at pp. 225-226 [28 L.Ed.2d 1 at pp. 4-5].) 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.)
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 [132]evidentiary value, thus affording defendant an additional protection. (See People v. Pierce (1969) 269 Cal.App.2d 193, 205 [75 Cal.Rptr. 257].)
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) 291 U.S. 97, 122 [78 L.Ed. 674, 687, 54 S.Ct. 330, 90 A.L.R. 575], insisted: “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
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.