MOSK, J. I dissent.
It has been said that fundamental truth is the first casualty of war. Now a fundamental principle of justice has become a casualty of the synthetic war on crime.
Contrary to the conclusion of the majority opinion, there is no reason to abandon or even reconsider the well- and long-settled California rule that, in a criminal trial, the admission into evidence of what has variously been called a “coerced” or “involuntary” confession by the defendant requires automatic reversal of any ensuing judgment of conviction. Certainly, the handing down by the United States Supreme Court of its decision in Arizona [512]v. Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246] (hereafter sometimes Fulminante), which purportedly abrogates the analogous federal constitutional rule, does not provide us with an “appropriate opportunity” (maj. opn., ante, at p. 500) to address the question.1
The significance of the majority opinion must not be overlooked. To be sure, it will not send us back to the Inquisition and the Star Chamber straightaway. It assures us, somewhat ominously, that “we have no occasion in this case to decide whether” coerced confessions remain inadmissible under the California Constitution. (Maj. opn., ante, at pp. 485-486, italics added.) But it will definitely cause us to take the first step in that direction. (Cf. Arizona v. Fulminante, supra, 499 U.S. at pp. 294-295 [113 L.Ed.2d at pp. 321-322, 111 S.Ct. at p. 1257] (dis. opn. of White, J.) [treating the purported abrogation of the federal constitutional rule of automatic reversal for the admission of a coerced confession as the abolition of the related rule barring the admission of such a confession in the first place].) I refuse to set out on such a dark journey.
I. Coerced Confessions and Error
Let us proceed from what is, and must be, common ground.
A. The United States Constitution
It is error under the United States Constitution to admit a defendant’s coerced confession into evidence at a criminal trial.
The Fifth Amendment establishes a privilege against self-incrimination: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The constitutional provision has remained unchanged since its ratification in 1791.
In Bram v. United States (1897) 168 U.S. 532, 542 [42 L.Ed. 568, 573, 18 S.Ct. 183] (hereafter sometimes Bram), the United States Supreme Court expressly concluded that “[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no [513]person ‘shall be compelled in any criminal case to be a witness against himself.’ ”
In addition, the Bram court impliedly concluded that the Fifth Amendment’s privilege against self-incrimination extends its reach beyond the criminal courtroom and operates even in the absence of “compulsion” commonly so called. (See Bram v. United States, supra, 168 U.S. at pp. 542-561 [42 L.Ed. at pp. 573-580].)
Thus, at one point the Bram court stated: “ ‘But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.’ ” (Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574], ellipsis in original, quoting 3 Russell on Crimes (6th ed.) p. 478.)
At another point, the Bram court stated: “The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent.” (Bram v. United States, supra, 168 U.S. at p. 549 [42 L.Ed. at pp. 575-576].)
The conclusions reached in Bram remain good law. Indeed, they were explicitly reaffirmed by the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436, 460-462 [16 L.Ed.2d 694, 715-717, 86 S.Ct. 1602, 10 A.L.R.3d 974] 2
The Fifth Amendment’s privilege against self-incrimination is available against the individual states as well as the United States itself. (See, e.g., [514]Miranda v. Arizona, supra, 384 U.S. at pp. 458-464 [16 L.Ed.2d at pp. 714-718].) In Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243, 247-250 [8 L.Ed. 672, 674-675], which was decided before the adoption of the Fourteenth Amendment, the United States Supreme Court held that the Fifth Amendment applied to the federal government alone. In Twining v. New Jersey (1908) 211 U.S. 78, 99-114 [53 L.Ed. 97, 106-112, 29 S.Ct. 14], and Adamson v. California (1947) 332 U.S. 46, 53-54 [91 L.Ed. 1903, 1909-1910, 67 S.Ct. 1672, 171 A.L.R. 1223], the court concluded that the federal constitutional privilege was not made applicable to the states through the due process clause of the Fourteenth Amendment. In Malloy v. Hogan (1964) 378 U.S. 1, 3-8 [12 L.Ed.2d 653, 656-660, 84 S.Ct. 1489] (hereafter sometimes Malloy), however, the court held to the contrary.
B. The California Constitution
Separately and independently, it is error under the California Constitution to admit a defendant’s coerced confession into evidence at a criminal trial. Section 15 of article I of the state charter establishes its own privilege against self-incrimination: “Persons may not... be compelled in a criminal cause to be a witness against themselves . . . .” This provision derives from former section 13 of article I of the currently effective Constitution of 1879: “No person shall ... be compelled, in any criminal case, to be a witness against himself. . . .” That provision, in turn, was taken from section 8 of article I of the original, and now superseded, Constitution of 1849: “No person . . . shall ... be compelled, in any criminal case, to be a witness against himself . . . .” For present purposes, the state constitutional privilege is much the same as the federal. (See, e.g., People v. Loper (1910) 159 Cal. 6, 17-20 [112 P. 720].)
C. Underlying Policies
Informing the federal and state constitutional privileges against self-incrimination and the related rules barring the admission of a coerced confession are diverse values and purposes.
In Anglo-American law generally, many “policies . . . have been advanced as . . . justification” for the privilege against self-incrimination. (8 [515]Wigmore, Evidence (McNaughton rev. 1961) § 2251, p. 297 [hereafter 8 Wigmore]; accord, People v. Coleman (1975) 13 Cal.3d 867, 875 [120 Cal.Rptr. 384, 533 P.2d 1024]; see Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 55 [12 L.Ed.2d 678, 681-682, 84 S.Ct. 1594] [hereafter sometimes Murphy]; see generally 8 Wigmore, supra, § 2251, pp. 295-318; 1 McCormick, Evidence (4th ed. 1992) § 118, pp. 430-435 [hereafter 1 McCormick].) Some are real, others only apparent; some implicate themselves in many situations, others only in a few; some are basic, others merely derivative. (See generally 8 Wigmore, supra, § 2251, pp. 295-318; 1 McCormick, supra, § 118, pp. 430-435.)
Among these policies, three are worthy of note in the present matter.
One is the prevention of overreaching by the government and the consequent mistreatment of the individual, whether by physical torture or psychological pressure, by blatant measures or subtle devices (see 8 Wigmore, supra, § 2251, pp. 315-316; 1 McCormick, supra, § 118, p. 433)—put otherwise, the avoidance of a “recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality” (Ullmann v. United States (1956) 350 U.S. 422, 428 [100 L.Ed. 511, 519, 76 S.Ct. 497, 53 A.L.R.2d 1008]; accord, Board of Education v. Mass (1956) 47 Cal.2d 494, 503 [304 P.2d 1015] (conc. opn. of Carter, J.)).3
Another policy is the exclusion of evidence that is regarded as inherently unreliable, i.e., the “self-incriminating admissions of the accused” (1 McCormick, supra, § 118, p. 432), in accordance with what has been described as “our distrust of self-deprecatory statements” (Murphy v. Waterfront Comm’n, supra, 378 U.S. at p. 55 [12 L.Ed.2d at pp. 681-682]; accord, People v. Jimenez (1978) 21 Cal.3d 595, 605 [147 Cal.Rptr. 172, 580 P.2d 672]).
But the policy that is the most substantial, expansive, and fundamental is this: “The privilege contributes toward a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.” (8 Wigmore, supra, § 2251, p. 317.) For it is the “prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself . . . .” (Id., § 2251, p. 318.)
[516]The United States Supreme Court has recognized the point as to the federal constitutional privilege against self-incrimination.
Thus, in Murphy v. Waterfront Comm’n, supra, 378 U.S. 52, the court declared at page 55 [12 L.Ed.2d at pages 681-682]: “The privilege against self-incrimination ‘registers an important advance in the development of our liberty—“one of the great landmarks in man’s struggle to make himself civilized.” ’ [Citation.] It reflects many of our fundamental values and most noble aspirations,” including “our preference for an accusatorial rather than an inquisitorial system of criminal justice” and “our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load[.]’ ” (Fn. omitted.)
In Malloy v. Hogan, supra, 378 U.S. 1, the court observed at pages 7 to 8 [12 L.Ed.2d at pages 658-659]: “[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and ... the Fifth Amendment privilege is its essential mainstay. [Citation.] Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.”
And in Miranda v. Arizona, supra, 384 U.S. 436, the court elaborated at page 460 [16 L.Ed.2d at page 715]: “[T]he constitutional foundation underlying the privilege is the respect a government—state or federal—must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ [citation], to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.”
We have recognized the same point as to the state constitutional privilege against self-incrimination. Our discussion in such decisions as People v. Jimenez, supra, 21 Cal.3d 595, and People v. Schader (1969) 71 Cal.2d 761 [80 Cal.Rptr. 1, 457 P.2d 841], furnishes proof. In both cases, we effectively construed the guaranty of the state charter as the court in Murphy and Malloy had construed the guaranty of the federal. (See People v. Jimenez, supra, 21 Cal.3d at p. 605; People v. Schader, supra, 71 Cal.2d at pp. 769-770.)
Underlying the federal and state constitutional rules barring the admission of a coerced confession are policies that correspond—unsurprisingly—to [517]those of the federal and state constitutional privileges against self-incrimination. .
Accordingly, one of these policies is the prevention of governmental overreaching. (See e.g., 1 LaFave & Israel, Criminal Procedure (1984) § 6.2(b), pp. 442-443 [hereafter LaFave & Israel] [discussing the federal constitutional rule]; Miller v. Fenton (1985) 474 U.S. 104, 109 [88 L.Ed.2d 405, 410, 106 S.Ct. 445] [same; implying, in words quoted from Brown v. Mississippi (1936) 297 U.S. 278, 286 [80 L.Ed. 682, 687], that the rule’s purpose is to deter official conduct that is “ ‘revolting to the sense of justice’ ”]; People v. Atchley (1959) 53 Cal.2d 160, 170 [346 P.2d 764] [stating generally that coerced confessions are excluded “because,” among other reasons, “exclusion serves to discourage the use of physical brutality and other undue pressures in questioning those suspected of crime”].)
Another policy is the exclusion of evidence deemed unreliable. (See, e.g., 1 LaFave & Israel, supra, § 6.2(b), pp. 442, 444 [discussing the federal constitutional rule]; People v. Atchley, supra, 53 Cal.2d at p. 170 [stating generally that coerced confessions are excluded “because,” among other reasons, “they are untrustworthy”].)4
The most basic of the policies, however, is simply the ensuring of fairness in the contest between the government and the individual. (See, e.g., Colorado v. Connelly, supra, 479 U.S. at p. 167 [93 L.Ed.2d at pp. 484-485] [discussing the federal constitutional rule; stating, in words quoted from Lisenba v. California (1941) 314 U.S. 219, 236 [86 L.Ed. 166, 179-180, 62 S.Ct. 280], that “‘[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the [government’s] use of evidence [against the individual], whether true or false[]’ ”]; People v. Atchley, supra, 53 Cal.2d at p. 170 [stating generally that coerced confessions are excluded “because,” among other reasons, “it offends ‘the community’s sense of fair play and decency’ to convict a defendant by evidence extorted from him”].)
It goes without saying that the “fairness” policy that underlies both the federal and state constitutional privileges against self-incrimination and the [518]related rules barring the admission of a coerced confession does not seek to further the ascertainment of the truth in criminal proceedings. (See, e.g., Tehan v. Shott (1966) 382 U.S. 406, 416 [15 L.Ed.2d 453, 459-460, 86 S.Ct. 459] [stating that the federal constitutional privilege “is not an adjunct to the ascertainment of truth”].) Nor is this policy merely neutral in this regard. Rather, it serves in fact to frustrate efforts to attain the goal. (See, e.g., Baxter v. Palmigiano (1976) 425 U.S. 308, 319 [47 L.Ed.2d 810, 821-822, 96 S.Ct. 1551] [stating that the federal constitutional privilege “derogates rather than improves the chances for accurate decisions”].) What it aims to promote, as the discussion above suggests, is not the reliability of the outcome of an individual criminal trial, but the legitimacy of the criminal justice system itself.
In view of the foregoing, it is plain that the admission, at a federal criminal trial, of a coerced confession offensive to the Fifth Amendment’s privilege against self-incrimination constitutes a denial of due process of law under that same amendment. (See Miranda v. Arizona, supra, 384 U.S. at p. 503 [16 L.Ed.2d at p. 740] (conc. & dis. opn. of Clark, J.).) Similarly, the admission, at a state criminal trial, of a confession of this sort denies due process under the Fourteenth Amendment. (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 568 [2 L.Ed.2d 975, 981, 78 S.Ct. 844] [hereafter sometimes Payne].) In California, the admission of a coerced confession offensive to the federal and/or state constitutional privilege also denies due process under sections 7 and 15 of article I of the state charter. (See, e.g., People v. Benson, supra, 52 Cal.3d at p. 778.)
II. Coerced Confessions and Reversal
From the fact that it is error under both the United States and California Constitutions to admit a defendant’s coerced confession into evidence at a criminal trial, let us now turn to the question of the consequences of such error.
A. The United States Constitution
It is the rule under the United States Constitution—Fulminante put to the side for the time being—that the admission of a defendant’s coerced confession into evidence at a criminal trial requires automatic reversal. (See, e.g., Rose v. Clark (1986) 478 U.S. 570, 578, fn. 6 [92 L.Ed.2d 460, 470-471, 106 S.Ct. 3101] [hereafter sometimes Clark]; United States v. Hasting (1983) 461 U.S. 499, 508, fn. 6 [76 L.Ed.2d 96, 105-106, 103 S.Ct. 1974]; New Jersey v. Portash (1979) 440 U.S. 450, 459 [59 L.Ed.2d 501, 510, 99 S.Ct. 1292]; Mincey v. Arizona (1978) 437 U.S. 385, 398 [57 L.Ed.2d 290, 303-304, 98 [519]S.Ct. 2408]; Lego v. Twomey (1972) 404 U.S. 477, 483 [30 L.Ed.2d 618, 623-624, 92 S.Ct. 619]; Chapman v. California (1967) 386 U.S. 18, 23 & fn. 8 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065] [hereafter sometimes Chapman]; Jackson v. Denno (1964) 378 U.S. 368, 376 [12 L.Ed.2d 908, 915, 84 S.Ct. 1774, 1 A.L.R.3d 1205]; Haynes v. Washington (1963) 373 U.S. 503, 518 [10 L.Ed.2d 513, 523-524, 83 S.Ct. 1336]; Lynumn v. Illinois (1963) 372 U.S. 528, 537 [9 L.Ed.2d 922, 928, 83 S.Ct. 917]; Blackburn v. Alabama (1960) 361 U.S. 199, 206, 211 [4 L.Ed.2d 242, 247-248, 250-251, 80 S.Ct. 274]; Spano v. New York (1959) 360 U.S. 315, 324 [3 L.Ed.2d 1265, 1272, 79 S.Ct. 1202]; Payne v. Arkansas, supra, 356 U.S. at p. 568 [2 L.Ed.2d at p. 981]; Brown v. Allen (1953) 344 U.S. 443, 475 [97 L.Ed.2d 469, 498-499, 93 S.Ct. 397]; Stroble v. California (1952) 343 U.S. 181, 190 [96 L.Ed. 872, 880-881, 72 S.Ct. 599]; Gallegos v. Nebraska (1951) 342 U.S. 55, 63 [96 L.Ed. 86, 93, 72 S.Ct. 141]; Haley v. Ohio (1948) 332 U.S. 596, 599 [92 L.Ed. 224, 228, 68 S.Ct. 302]; Malinski v. New York (1945) 324 U.S. 401, 404 [89 L.Ed. 1029, 1032, 65 S.Ct. 781]; Lyons v. Oklahoma (1944) 322 U.S. 596, 597, fn. 1 [88 L.Ed. 1481, 1483, 64 S.Ct. 1208]; Wan v. United States (1924) 266 U.S. 1, 17 [69 L.Ed. 131, 149, 45 S.Ct. 1]; Bram v. United States, supra, 168 U.S. at p. 541 [42 L.Ed. at p. 573].)
The rationale of the rule is easy to discern. It is bottomed on the policy of fairness in the contest between the government and the individual, which underlies the Fifth Amendment’s privilege against self-incrimination and the related rule barring the admission of a coerced confession.
Stated more expansively, the rationale is to this effect: “The harm caused by the violation—the skewed balance between the state and the accused— [can] be cured [only] by a new trial at which the confession and its fruits are excluded. Because the value in fair play is not concerned with reliability, the conviction [must] be reversed and [the] process redone even when the defendant is undeniably guilty and we are fully confident that the confession did not affect the jury’s verdict.” (Stacy & Dayton, Rethinking Harmless Constitutional Error (1988) 88 Colum. L.Rev. 79, 104 [hereafter Stacy & Dayton].)
The rule of automatic reversal does not overlook the fact that a confession, when introduced at trial, constitutes evidence. But it recognizes that such evidence is sui generis. “A plea of guilty is in essence a confession in open court. . . .” (In re Tahl (1969) 1 Cal.3d 122, 135, fn. 11 [81 Cal.Rptr. 577, 460 P.2d 449].) Similarly, a confession is substantially an extrajudicial plea of guilty. A coerced guilty plea cannot support a conviction: the former renders the latter a denial of due process. (See, e.g., Waley v. Johnston [520](1942) 316 U.S. 101, 104 [86 L.Ed. 1302, 1304, 62 S.Ct. 964].) It follows that a coerced confession cannot support a conviction for the same reason. (Ibid.)
The rule, it must be emphasized, does not at all depend on considerations of reliability. In Jackson v. Denno, supra, 378 U.S. 368, the United States Supreme Court declared at page 376 [12 L.Ed.2d at page 915]: “It is . . . axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession [citation], and even though there is ample evidence aside from the confession to support the conviction.”
Associated with the “fairness” rationale is a more practical concern regarding the evidentiary force that inheres in confessions as such, which has compelled the recognition that “where ... a coerced confession constitutes a part of the evidence before the jury . . . , no one can say what credit and weight the jury gave to the confession.” {Payne v. Arkansas, supra, 356 U.S. at p. 568 [2 L.Ed.2d at p. 981].)
Manifestly, the rule of automatic reversal dates back almost a century to Bram. (See Bram v. United States, supra, 168 U.S. at p. 541 [42 L.Ed. at p. 573].) There, the court flatly held that if a defendant’s coerced confession is admitted, “reversible error will result . . . .” (Ibid., italics added.) This holding cannot be treated as merely an instance of some “general assumption” that all federal constitutional errors are reversible per se. Barely two terms later, in Motes v. United States (1900) 178 U.S. 458, 475-476 [44 L.Ed. 1150, 1156, 20 S.Ct. 993], the court expressly held harmless the admission of evidence in violation of a defendant’s Sixth Amendment right of confrontation. Since Bram, as the citations in the initial paragraph of this section indicate, the rule has been firmly adhered to and reaffirmed time and again.
The rule of automatic reversal arose in a period in which it was assertedly “unclear” whether and to what extent federal constitutional errors are subject to harmless-error analysis. (Stacy & Dayton, supra, 88 Colum. L.Rev. at pp. 82-83; compare Kotteakos v. United States (1946) 328 U.S. 750, 764-765 [90 L.Ed. 1557, 1556-1567, 66 S.Ct. 1239] [stating in dictum that an error may be held harmless “except perhaps where the departure is from a constitutional norm”] with Motes v. United States, supra, 178 U.S. at pp. 475-476 [44 L.Ed. at p. 1156] [holding harmless the admission of evidence in violation of a defendant’s Sixth Amendment right of confrontation].)
In 1967, that period ended. In Chapman v. California, supra, 386 U.S. 18, the United States Supreme Court held that federal constitutional errors are, [521]indeed, subject to harmless-error analysis. (Id. at pp. 21-22 [17 L.Ed.2d at pp. 708-710].) In the court’s words: “[T]here may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” (Id. at p. 22 [17 L.Ed.2d at pp. 709-710].) The standard is strict: “[B]efore a federal constitutional error” that is not automatically reversible “can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Id. at p. 24 [17 L.Ed.2d at pp. 710-711].)
The Chapman court, however, expressly excepted from harmless-error analysis the admission of a coerced confession. Again in the court’s own words: “[0]ur prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error . . . .” (Chapman v. California, supra, 386 U.S. at p. 23 [17 L.Ed.2d at p. 710].) The court cited to Payne as one of those decisions, and to the introduction of a coerced confession as one of those errors. (Id. at p. 23, fn. 8 [17 L.Ed.2d at p. 710].) Payne had held that, no matter what the other evidence, the “admission in evidence ... of [a] coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.” (Payne v. Arkansas, supra, 356 U.S. at p. 568 [2 L.Ed.2d at p. 981].)
In 1986, the United States Supreme Court revisited the question of harmless error. In Rose v. Clark, supra, 478 U.S. 570, the court concluded that federal constitutional errors are generally subject to harmless-error analysis. (Id. at pp. 576-579 [92 L.Ed.2d at pp. 469-471].) It explained: “ ‘The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” (Id. at p. 577 [92 L.Ed.2d at p. 470], quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 681 [89 L.Ed.2d 674, 684-685, 106 S.Ct. 1431].)
All the same, the Clark court continued to expressly except from harmless-error analysis the admission of a coerced confession. (Rose v. Clark, supra, 478 U.S. at pp. 577-578 & fn. 6 [92 L.Ed.2d at pp. 470-471].) It did so because “some errors necessarily render a trial fundamentally unfair. The State of course must provide a trial before an impartial judge [citation], with counsel to help the accused defend against the State’s charge [citation], . . . Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence [citation], [522]and no criminal punishment may be regarded as fundamentally fair. Harmless-error analysis thus presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” (Id. at pp. 577-578 [92 L.Ed.2d at pp. 470-471].) In the court’s view, the “use of [a] coerced confession” “abort[s] the basic trial process . . . .” (Id. at p. 578, fn. 6 [92 L.Ed.2d at pp. 470-471].) It does so, of course, because a confession is substantially an extrajudicial plea of guilty.
Concurring in the judgment in Clark, Justice Stevens stated: “As the Court recognizes, harmless-error inquiry remains inappropriate for certain constitutional violations no matter how strong the evidence of guilt may be. [Citations.] The Court suggests that the inapplicability of harmless error to these violations rests on concerns about reliability and accuracy, and that such concerns are the only relevant consideration in determining the applicability of harmless error. [Citation.] In fact, however, violations of certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial. Thus, . . . [t]he admission of a coerced confession can never be harmless even though the basic trial process was otherwise completely fair and the evidence of guilt overwhelming. In short, . . . our Constitution, and our criminal justice system, protect other values besides the reliability of the guilt or innocence determination.” (Rose v. Clark, supra, 478 U.S. at pp. 586-588 [92 L.Ed.2d at pp. 476-478], fn. omitted (conc. opn. of Stevens, J.).)
Accordingly, the rule of automatic reversal survived the formal advent of harmless-error analysis in Chapman and its subsequent development in Clark. Indeed, the rule was explicitly reaffirmed in both decisions. The Chapman court simply cited to the unquestioned authority of Payne. (Chapman v. California, supra, 386 U.S. at p. 23, fn. 8 [17 L.Ed.2d at p. 710].) For its part, the Clark court—making an awkward attempt to fit settled federal constitutional law to its procrustean bed of reliability-—asserted that the “use of [a] coerced confession” “abort[s] the basic trial process . . . .” (Rose v. Clark, supra, 478 U.S. at p. 578, fn. 6 [92 L.Ed.2d at p. 470].)
Chapman and Clark were manifestly right to reaffirm the rule of automatic reversal. The threat of harm that harmless-error analysis is designed to assess concerns whether or not the outcome of an individual criminal trial is reliable. The harm that the admission of a coerced confession necessarily causes is the undermining of fairness in the contest between the government and the individual and, ultimately, the legitimacy of the criminal justice system itself. Hence, the application of harmless-error analysis to the introduction of a coerced confession is inappropriate: such analysis does not even [523]take cognizance of the injury peculiar to error of this sort. The harm of a coerced confession can be cured only by reversal of the judgment and exclusion of the confession at any retrial.5
B. California Law
Separately and independently, it is the rule in California that the admission of a defendant’s coerced confession into evidence at a criminal trial requires automatic reversal. (See, e.g., People v. Jimenez, supra, 21 Cal.3d at pp. 605-606; People v. Sanchez (1969) 70 Cal.2d 562, 571 [75 Cal.Rptr. 642, 451 P.2d 74]; People v. Matteson (1964) 61 Cal.2d 466, 469 [39 Cal.Rptr. 1, 393 P.2d 161] [hereafter sometimes Matteson); People v. Brommel (1961) 56 Cal.2d 629, 634 [15 Cal.Rptr. 909, 364 P.2d 845]; People v. Trout (1960) 54 Cal.2d 576, 585 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418]; People v. Berve (1958) 51 Cal.2d 286, 290 [332 P.2d 97] [hereafter sometimes Berve); People v. Loper, supra, 159 Cal. at p. 20; People v. Barric (1874) 49 Cal. 342, 345; People v. Johnson (1871) 41 Cal. 452, 455; People v. Ah How (1867) 34 Cal. 218, 223-224.)
The rationale of our rule of automatic reversal rests on the policy of fairness in the contest between the government and the individual, which underlies the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession. In People v. Berve, supra, 51 Cal.2d 286, one of the landmark decisions in this area, we made the point plain: The introduction of a coerced confession “constitutes a denial of due process of law . . . under the . . . state Constitution ] requiring a reversal of the conviction although other evidence may be consistent with guilt. [Citations.] ‘. . . Coerced confessions offend the community’s sense of fair play and decency. . . . Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.’ ” [524](Id. at p. 290, quoting Rochin v. California (1952) 342 U.S. 165,173-174 [96 L.Ed. 183, 190-191, 72 S.Ct. 205, 25 A.L.R.2d 1396].)
Our rule too recognizes that a confession is indeed evidence, but evidence sui generis, being substantially an extrajudicial plea of guilty. A coerced guilty plea cannot support a conviction under California law. (See, e.g., People v. Wadkins (1965) 63 Cal.2d 110, 113-114 [45 Cal.Rptr. 173, 403 P.2d 429].) Under that same law, it follows, neither can a coerced confession.
Associated with the “fairness” rationale, although apparently only in dictum in a single coerced-confession case, viz., People v. Matteson, supra, 61 Cal.2d 466, is the more practical concern regarding the evidentiary force that inheres in confessions as such. In People v. Parham (1963) 60 Cal.2d 378 [33 Cal.Rptr. 497, 384 P.2d 1001]—which was not a coerced-confession case—we stated in dictum: “Almost invariably, ... a confession will constitute persuasive evidence of guilt, and it is therefore usually extremely difficult to determine what part it played in securing the conviction. [Citations.] These considerations justify treating involuntary confessions as a class by themselves and refusing to inquire whether in rare cases their admission in evidence had no bearing on the result.” (Id. at p. 385.) This language was alluded to in dictum in Matteson, which was decided some years after Berve. (See People v. Matteson, supra, 61 Cal.2d at p. 470.)
It must be noted that our rule of automatic reversal arose, and came to full stature, within a jurisprudence requiring harmless-error analysis.
Our rule goes back to the early years of statehood. (See People v. Ah How, supra, 34 Cal. at pp. 223-224; People v. Johnson, supra, 41 Cal. at p. 455; People v. Barric, supra, 49 Cal. at p. 345.)
It cannot be deemed, in its historical roots, simply a particularization of some “presumption of prejudice” that formerly attached to any error.
Virtually since California’s admission into the Union in 1850, no such “presumption of prejudice” has existed in this state.
In 1851, harmless-error analysis was established by statute.
Statutes 1851, chapter 29, section 499, page 267: “After hearing the appeal, the Court shall give judgment without regard to technical error or defect, which does not affect the substantial rights of the parties.” This provision is the source of the substantially identical Penal Code section [525125]8, which was enacted in 1872 and has remained unchanged: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.”
So too, Statutes 1851, chapter 29, section 601, page 279: “Neither a departure from the form or mode prescribed by this Act in respect to any pleadings or proceedings, nor an error or mistake therein shall render the same invalid, unless it have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.” This provision is the source of the substantially identical Penal Code section 1404, which was enacted in 1872 and has remained unchanged: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”6
In People v. Brotherton (1874) 47 Cal. 388, 404 (hereafter sometimes Brothertori), we declared in an opinion delivered by Chief Justice Wallace for a unanimous court:
“. . . Our judgment. . . , it must be remembered, is to be given‘without regard to technical error or defect which does not affect the substantial rights of the parties.’
“That a technical error has intervened at the trial is, therefore, not of itself enough to warrant our interference.
[526]“The prisoners must go further, and affirmatively show in some way that their substantial rights have been injuriously affected by the error complained of. The burden is upon them to do so. Mere intendments indulged here are in support of the proceedings below, so far as such intendments are consistent with the record.”7
We adhered to, and reaffirmed, Brotherton in such decisions as People v. Nelson (1880) 56 Cal. 77, 82; People v. Barnhart (1881) 59 Cal. 381, 384-385; and People v. Clark (1895) 106 Cal. 32, 40 [39 P. 53],
Thus, even as our rule of automatic reversal was arising, we were regularly conducting harmless-error analysis, in which we examined the entire cause, including the evidence. Accordingly, in many cases we concluded that errors of various sorts were not reversible because they were not prejudicial.
For example, we held errors in pleading harmless in decisions including People v. Wynn (1901) 133 Cal. 72, 73 [65 P. 126]; People v. Haagen (1903) 139 Cal. 115, 116-117 [72 P. 836]; and People v. Mead (1904) 145 Cal. 500, 502-504 [78 P. 1047],
Similarly, we deemed harmless errors of procedure in cases such as People v. Sprague (1879) 53 Cal. 491, 494-495; People v. Gilbert (1880) 57 Cal. 96, 98-99; People v. O’Brien (1891) 88 Cal. 483, 488-489 [26 P. 362]; People v. Smalling (1892) 94 Cal. 112, 119-120 [29 P. 421]; and People v. Dolan (1892) 96 Cal. 315, 318-319 [31 P. 107],
Also, we held erroneous instructions harmless in decisions including People v. Nelson, supra, 56 Cal. at pages 81 to 83; and People v. Burns (1883) 63 Cal. 614, 615.
Lastly—and of particular significance here—we deemed harmless errors bearing on the admission or exclusion of evidence in cases such as People v. [527]Lee Chuck (1889) 78 Cal. 317, 321 [20 P. 719]; People v. Nelson (1890) 85 Cal. 421, 425, 429 [24 P. 1006]; People v. Dolan, supra, 96 Cal. at page 319; People v. Greening (1894) 102 Cal. 384, 386-387 [36 P. 665]; People v. Daniels (1894) 105 Cal. 262, 265 [38 P. 720]; People v. Clark, supra, 106 Cal. at pages 38 to 41; People v. Barthleman (1898) 120 Cal. 7, 15 [52 P. 112]; People v. Wynn, supra, 133 Cal. at page 73; and People v. Glaze (1903) 139 Cal. 154, 160-162 [72 P. 965], disapproved on another point in Funk v. Superior Court (1959) 52 Cal.2d 423, 425 [340 P.2d 593],
At a special election held on October 10, 1911, the people approved Proposed Senate Constitutional Amendment No. 26, and thereby added former section 4Vi to article VI of the California Constitution (hereafter sometimes former section 4Vz): “No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” In 1914, the constitutional provision was amended as to scope, in order to cover “any case,” civil as well as criminal, and also as to phrasing. In 1966, it was repealed as section 41/2 and added as section 13 (hereafter sometimes section 13): “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
Thus, even as our rule of automatic reversal came to full stature, we regularly conducted harmless-error analysis, in which we examined the entire cause, including the evidence. Accordingly, in cases too numerous even to cite representatively, we have concluded that errors of various sorts were not reversible because they were not prejudicial.
The practice we have adopted and followed over the years makes plain what is implicit in our decisions, viz., that our rule of automatic reversal treats the admission of a coerced confession as itself a “miscarriage of justice” (Cal. Const., art. VI, § 13), which at the very least “tend[s] to [the defendant’s] prejudice ... in respect to a substantial right” (Pen. Code, § 1404) and cannot be deemed a mere “technical” error (id., § 1258). (Cf. Davis v. City of Berkeley (1990) 51 Cal.3d 227, 239 [272 Cal.Rptr. 139, 794 P.2d 897] [holding that the “practices adopted and followed by local governments to comply with the requirements of article XXXIV” of the California Constitution, dealing with voter approval of low-rent housing [528]projects, “may appropriately be considered, and given considerable deference, in determining that constitutional provision’s meaning”].) On occasion, it is true, we have failed to apply our rule. Deviation, however, is not defeasance.
Our rule of automatic reversal is not inconsistent with harmless-error analysis as established by sections 1258 and 1404 of the Penal Code and mandated by section 13 of article VI of the California Constitution.
We need not detain ourselves long so far as harmless-error analysis under the statutory provisions is concerned. It is undisputed, and indeed indisputable, that tiie privilege against self-incrimination, under both the United States and California Constitutions, is one of the most “substantial” of “rights." (Pen. Code, § 1258.) Similarly, it is settled beyond peradventure that the admission of a coerced confession must at the very least “tend[] to [the defendant’s] prejudice” in respect to this most “substantial right.” (Id., § 1404.)
As for harmless-error analysis under the constitutional provision, we must spend considerably more time. The construction and application of section 13—former section 41/2—of article VI of the California Constitution are not easily determined, contrary to the evident belief of the majority (see maj. opn., ante, at pp. 487-493) and others (see, e.g., People v. Watson (1956) 46 Cal.2d 818, 834-837 [299 P.2d 243] [hereafter sometimes Watson]; People v. Brown (1988) 46 Cal.3d 432, 466-467 [250 Cal.Rptr. 604, 758 P.2d 1135] [hereafter sometimes Brown] (conc. opn. of Mosk, J.)).
That is because the so-called “seminal decision” (maj. opn., ante, at pp. 491, 506) in People v. O’Bryan (1913) 165 Cal. 55 [130 P. 1042] (hereafter sometimes O’Bryan) raises far more questions than it answers.
At the outset, we must recognize, and in fact emphasize, a fact that has generally been overlooked. In O’Bryan, there is no opinion of the court. Justice Sloss authored the lead opinion, in which Justice Angellotti and Justice Shaw joined. (People v. O’Bryan, supra, 165 Cal. at pp. 57-68 (lead opn. by Sloss, J.).) For his part, Justice Lorigan authored an opinion concurring in the judgment, in which Justice Melvin and Justice Henshaw joined. (Id. at pp. 68-70 (cone. opn. of Lorigan, J.).) Neither opinion commanded a majority.
In the lead opinion in O’Bryan, Justice Sloss set forth the following facts.
At trial before a jury, it was established beyond dispute that the defendant was a member of a labor organization striking the Llewellyn Iron Works, [529]and that on the date in question he fatally shot one John D. Avila, a nonunion worker at Llewellyn.
The point of controversy was whether or not the defendant intended to kill Avila.
The prosecution sought to prove such intent. It presented evidence to show that the defendant sought to terrorize Avila because he was working for Llewellyn. Included, apparently, was certain testimony that the defendant had given before a grand jury. In Justice Sloss’s words: “On the day of the shooting, ... the defendant was arrested on suspicion of being concerned in the killing of Avila, and was held in custody in the county jail. [Some days later,] ... he was, by the sheriff, taken before the grand jury which was investigating the homicide, and was sworn and questioned concerning his actions before and at the time of the shooting. He was not informed of his constitutional right to decline to be a witness against himself, nor was he warned that his statements might be used against him. In response to the examination of the district attorney, he made to the grand jury a number of statements. These statements did not amount to a confession,” indeed they were substantially unrelated to the shooting itself, “but were admissible in evidence against the defendant as declarations against interest. . . .” (People v. O’Bryan, supra, 165 Cal. at pp. 60-61 (lead opn. by Sloss, J.).)
The defendant denied intent to kill. Taking the stand, he testified on direct examination that he sought merely to frighten Avila, and not to cause him any injury. On cross-examination, the prosecution questioned him, over objection, as to certain testimony that he had given before the grand jury.
The jury returned a verdict finding the defendant guilty of murder of the first degree. The superior court entered judgment accordingly.
On appeal, Justice Sloss concluded that the admission of the defendant’s grand jury testimony was error. “This testimony should not have been admitted. The course pursued was in violation of the constitutional right of every person not to ‘be compelled, in any criminal case, to be a witness against himself.’ (Const. Cal., art. I, sec. 13.)” (People v. O’Bryan, supra, 165 Cal. at p. 61 (lead opn. by Sloss, J.).) “Here the defendant, when brought before the grand jury, was in custody under an accusation of guilt of the crime under investigation. Taken into the presence of that body by the sheriff, sworn and examined without the aid of counsel, and without any instruction as to his rights, it cannot be said that his submission to the interrogation was in any fair sense voluntary. The great preponderance of authority is that testimony so given by a defendant is not to be used against him.” (Id. at p. 62 (lead opn. by Sloss, J.).)
[530]“But, conceding that error was committed in the admission of this testimony," Justice Sloss continued, “there still remains the question whether the character and effect of the error were such as to require a reversal.” (People v. O’Bryan, supra, 165 Cal. at p. 63 (lead opn. by Sloss, J.).)
Up to this point in Justice Sloss’s lead opinion, as will subsequently appear, Justice Lorigan, together with the two justices who joined in his concurrence, did not disagree. In what follows, however, Justice Sloss spoke only for himself and for the two justices who joined in his opinion.
The question of reversal, stated Justice Sloss, “must be answered with due regard to the terms of section 4 of article VI, added to the constitution by amendment adopted in 1911." (People v. O’Bryan, supra, 165 Cal. at p. 63 (lead opn. by Sloss, J.).)
“The general purpose of the amendment,” he said, “is plain. Inasmuch as under the pre-existing provisions of the constitution the jurisdiction of the supreme court and of the district courts of appeal was limited in criminal cases ‘to questions of law alone’ [citation] it was incumbent upon these courts to reverse any judgment of conviction based upon proceedings which were affected in any degree by substantial error of law. . . . [W]here [the error was not trivial or could have prejudiced a substantial right] . . . and . . . was one which might or might not have turned the scale against the defendant, the limitation of the appellate jurisdiction to questions of law precluded the reviewing courts from weighing the evidence for the purpose of forming an opinion whether the error had or had not in fact worked injury. Having no jurisdiction in matters of fact, the court in which the appeal was pending was bound to apply the doctrine that prejudice was presumed to follow from substantial error." (People v. O’Bryan, supra, 165 Cal. at pp. 63-64 (lead opn. by Sloss, J.).)
“By the new constitutional provision,” Justice Sloss went on, “the appellate courts are empowered to examine ‘the entire cause, including the evidence’ and are required to affirm the judgment, notwithstanding error, if error has not resulted ‘in a miscarriage of justice.’ ” (People v. O’Bryan, supra, 165 Cal. at p. 64, italics in original (lead opn. by Sloss, J.).)
“What, then,” asked Justice Sloss, “is a miscarriage of justice? The phrase is a general one and has not yet acquired a precise meaning.” (People v. O’Bryan, supra, 165 Cal. at p. 64 (lead opn. by Sloss, J.).) “[W]e do not understand that the amendment in question was designed to repeal or abrogate the guaranties accorded persons accused of crime by other parts of the same constitution or to overthrow all statutory rules of procedure and [531]evidence in criminal cases.” (Id. at p. 65 (lead opn. by Sloss, J.).) “But it does not follow that every invasion of even a constitutional right necessarily requires a reversal. It may well be that the court, after examining the ‘entire cause including the evidence,’ is of the opinion that the error complained of, whatever its character, has not resulted in a miscarriage of justice. The mere fact that the assignment of error is based upon a provision of the constitution is not conclusive. The final test is the opinion of the appellate court upon the result of the error.” (Id. at p. 66 (lead opn. by Sloss, J.).)
“Section 41/2 of article VI of our constitution,” according to Justice Sloss, “must be given at least the effect of abrogating the old rule that prejudice is presumed from any error of law. Where error is shown it is the duty of the court to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury. The mere fact of error does not make out a prima facie case for reversal which must be overcome by a clear showing that no injury could have resulted.” (People v. O’Bryan, supra, 165 Cal. at p. 65 (lead opn. by Sloss, J.).)
Applying former section 4Vz to the facts, Justice Sloss concluded that the erroneous admission of the defendant’s grand jury testimony had not “resulted in a miscarriage of justice,” essentially because “[ejvery material matter covered by [the testimony] was shown to the jury by other evidence, which was concededly admissible, and the truth of which was not contradicted.” (People v. O’Bryan, supra, 165 Cal. at pp. 66, 67 (lead opn. by Sloss, J.).)
Let us step out of O’Bryan for the moment. Having ourselves briefly reviewed the relevant history, we are compelled to conclude that Justice Sloss’s statements are at best dubious. We need only recall two facts. First, for almost four decades prior to the addition of former section 4¥i, we had conducted harmless-error analysis, and had done so without any “presumption of prejudice.” (See, e.g., People v. Nelson, supra, 56 Cal. at p. 82; People v. Barnhart, supra, 59 Cal. at pp. 384-385; People v. Clark, supra, 106 Cal. at p. 40.) Second, during that same period, we had conducted such analysis by means of an examination of “the entire cause, including the evidence.” (See, e.g., People v. Brotherton, supra, 47 Cal. at pp. 403-405; People v. Lee Chuck, supra, 78 Cal. at p. 321; People v. Nelson, supra, 85 Cal. at pp. 425, 429; People v. Dolan, supra, 96 Cal. at p. 319; People v. Greening, supra, 102 Cal. at pp. 386-387; People v. Daniels, supra, 105 Cal. at p. 265; People v. Clark, supra, 106 Cal. at pp. 38-41; People v. Barthleman, supra, 120 Cal. at p. 15; People v. Wynn, supra, 133 Cal. at p. 73; People v. Glaze, supra, 139 Cal. at pp. 160-162.)
In attempting to determine the “general purpose” of former section 4Vi, let us look to the arguments of the proponents of proposed Senate Constitutional [532]Amendment No. 26, which added the provision to the California Constitution.
“The object of this amendment is to enable our courts of last resort to sustain verdicts in criminal cases unless there has been a miscarriage of justice, or, putting it in another way, its purpose is to render it unnecessary for the higher courts to grant the defendant in a criminal case a new trial for unimportant errors. It is designed to meet the ground of common complaint that criminals escape justice through technicalities.” (Ballot Pamp., Proposed Amends, to the Cal. Const, with legislative reasons for and against adoption, Special Statewide Elec. (Oct. 10, 1911) [hereafter Ballot Pamp.], reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; accord, id.., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.)
“. . . [T]he adjective branch of our law has not kept pace with the development of substantive law. The trial of a criminal is so hedged about with technicalities that it has grown almost impossible to convict one whose wealth is sufficient to enable him to employ counsel skilled in the technique of criminal law. Thus there has grown up two systems of law—one for the poor, the other for the rich. The pauper prisoner is subjected to the iniquities of the ‘third degree’ to secure from him incriminating evidence, while the wealthy one is surrounded by a corps of defenders, whose skill in barricading their client behind technicalities is usually commensurate with the fees secured.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton.)
“. . . The reversal of the just conviction of a guilty man upon purely technical errors is the prime cause of want of confidence in our courts.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A.E. Boynton.)
In view of the foregoing, the “general purpose” of former section 4!/a was simply to constitutionally preclude reversals in criminal cases by appellate courts, and the attendant loss of public confidence in the criminal justice system, when the errors committed at trial were “unimportant” or “purely technical.”
Informed with such an intent, the constitutional provision shows itself inapplicable to the admission of a coerced confession. As stated, a confession is evidence sui generis, being substantially an extrajudicial plea of guilty. The admission of a coerced confession, of course, is neither “unimportant” nor “purely technical.” Rather, it is a profoundly grave defect going to the very heart of a criminal trial under the California Constitution, which [533]effectively defines a “fair” trial as one at which a coerced confession is not admitted. The proponents of the measure suggested as much. They made plain that former section 4!/a was aimed against the “wealthy [prisoner],” who “is surrounded by a corps of defenders, whose skill in barricading their client behind technicalities is usually commensurate with the fees secured.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton.) They implied that it had nothing to do with the “pauper prisoner”—like the defendant in this very case—who “is subjected to the iniquities of the ‘third degree’ to secure from him incriminating evidence . . . .” (Ibid.)
It follows that the constitutional provision does not even reach our rule of automatic reversal for the admission of a coerced confession.
True, the proponents of the measure criticized the so-called “presumption of prejudice.” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.) But they did so only in the context of errors that are “unimportant” or “purely technical.” (Id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. A. E. Boynton; accord, id., reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall.)
Had the proponents of the measure desired to affect our rule, which does not “presume prejudice” for an “unimportant” or “purely technical” error but requires automatic reversal for a profoundly grave defect going to the very heart of a criminal trial, they would undoubtedly have given some indication. They did not. To do so would have been easy. They searched back almost 40 years to assail the “doctrine announced in” People v. Stanley, supra, 47 Cal. 113, “that ‘every error in the admission of testimony is presumed to be injurious unless the contrary clearly appears[]’ ” (Ballot Pamp., supra, reasons for adoption of Sen. Const. Amend. No. 26 by Sen. E. S. Birdsall)—even though Stanley was short-lived and long dead, having been effectively overruled in People v. Brotherton, supra, 47 Cal. 388, only a few months after it was decided. Certainly, they could not have missed People v. Loper, supra, 159 Cal. 6, which had been handed down not a year earlier. There, we held that the admission of a coerced confession was reversible even on the assumption that “the prosecution had a perfect case without the confession,” i.e., “the evidence in this case was so complete without the confession of the defendant that the jury would have found him guilty even if the confession had been entirely omitted.” (Id. at p. 20.)
To be fair, Justice Sloss did not completely miss what “miscarriage of justice” under former section 4Vi might comprehend. “When we speak of [534]administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.” (People v. O’Bryan, supra, 165 Cal. at p. 65 (lead opn. by Sloss, 1).)
“For example,” said Justice Sloss, “if a court should undertake to deny to a defendant charged with a felony the right of trial by jury, and after a hearing of the evidence render a judgment of conviction, it cannot be doubted that such judgment should be set aside even though there had been the clearest proof of guilt.” (People v. O’Bryan, supra, 165 Cal. at pp. 65-66 (lead opn. by Sloss, J.).)
“Or,” he went on, “if a defendant, after having been once acquitted, should be again brought to trial and thereupon convicted, in disregard of his plea that he had been once in jeopardy, it would hardly be suggested that because he was in fact guilty, no ‘miscarriage of justice’ had occurred.” (People v. O’Bryan, supra, 165 Cal. at p. 66 (lead opn. by Sloss, J.).)
Or—we might add—if a court should receive in evidence a defendant’s coerced confession, it cannot be questioned that any ensuing conviction should be overturned notwithstanding guilt proved beyond a reasonable doubt.
This is because the harm caused by each of the three errors—denial of a jury trial, rejection of a plea of once in jeopardy, and admission of a coerced confession—is the undermining of fairness in the contest between the government and the individual and, ultimately, the legitimacy of the criminal justice system itself. Such harm can be cured only by reversal.
“. . . When a defendant has been denied any essential element of a fair trial or due process,” which must surely include the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession, “even the broad saving provisions of section 41/2 of article VI of our state Constitution cannot remedy the vice and the judgment cannot stand.” (People v. Sarazzawski (1945) 27 Cal.2d 7, 11 [161 P.2d 934] (per curiam).) “The fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has been no miscarriage of justice.” (People v. Mahoney (1927) 201 Cal. 618, 627 [258 P. 607] (per curiam).)
Let us now return to O’Bryan. In his concurring opinion, Justice Lorigan agreed with Justice Sloss’s result affirming the judgment but disagreed with [535]his views “as to the construction of section 4Vz of article VI of the constitution and its application under the evidence.” (People v. O’Bryan, supra, 165 Cal. at p. 68 (conc. opn. of Lorigan, J.).) He was “of the opinion that neither the construction nor application of this section is necessarily involved in the disposition of this appeal, and, therefore, the discussion upon it is obiter . . . .” (Ibid.)
Justice Lorigan continued: “It was, as pointed out in the [lead] opinion, error for the court to have admitted in evidence on behalf of the state the statements made by the defendant before the grand jury. This was in violation of the constitutional right of the defendant not to ‘be compelled in any criminal case to be a witness against himself.’ ” (People v. O’Bryan, supra, 165 Cal. at p. 69 (conc. opn. of Lorigan, J.).)
Such an error, Justice Lorigan suggested, might generally require automatic reversal, notwithstanding former section 4Vr. “If the defendant had not subsequently become a witness on the trial in his own behalf but had stood squarely upon the error of the court in permitting evidence of those statements, I am not prepared just now to say that against this violation of a constitutional right the section of the constitution could be interposed.” (People v. O’Bryan, supra, 165 Cal. at p. 69 (conc. opn. of Lorigan, J.).)
Automatic reversal, Justice Lorigan concluded, was not required in this case: “[H]ere the defendant did not stand upon the error. He became subsequent to its admission a witness in his own behalf and gave testimony in chief upon such matters as warranted the district attorney upon cross-examination in covering all the matters concerning which he had made statements before the grand jury. This district attorney was justified in cross-examining him as to all these matters and the testimony of the defendant respecting them was substantially a reiteration of the statements he made before the grand jury.” (People v. O’Bryan, supra, 165 Cal. at p. 69 (conc. opn. of Lorigan, J.).)
Therefore, Justice Lorigan proceeded, what controlled was the “general rule” of harmless-error analysis, “to which this court long since has given succinct utterance ... in People v. Brotherton, 47 Cal. 388, 404. . . .” “[Wjhatever error was committed by the court in the first instance was cured by this subsequently properly elicited testimony covering the same matters. The original prejudicial character as error was obviated by this subsequent confirmatory evidence of the defendant and under the general rule which has always obtained here the error became harmless and could not be successfully invoked by defendant to obtain a reversal.” (People v. O’Bryan, supra, 165 Cal. at p. 69 (conc. opn. of Lorigan, J.).)
[536]Returning to his beginning, Justice Lorigan stated: “This being the general rule applied before the constitutional amendment referred to was made, it is as directly applicable now since the amendment, and the assignment of the ruling as error was without merit by virtue of the general rule and in my opinion, therefore, it is unnecessary obiter to construe or apply the amendment in disposing of this alleged error.” (People v. O’Bryan, supra, 165 Cal. at p. 69 (conc. opn. of Lorigan, J.).)
In the years after O’Bryan, we revisited the question of the construction and application of former section 4xh in only one major decision.
In People v. Watson, supra, 46 Cal.2d 818, Justice Spence, in his opinion for the court, addressed former section 4V2. In all respects save one, he did little more than follow Justice Sloss’s lead opinion in O’Bryan. The exception was this: he articulated what was to become the general standard for harmless-error analysis under the constitutional provision. “Giving due consideration to the varying language heretofore employed in relating the constitutional amendment to the particular situations involved,” he stated, “it appears that the test generally applicable may be stated as follows: That a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.)
Three points bear emphasis.
First, Justice Spence’s opinion did not hold that former section 4XA precluded automatic reversal for certain errors, but merely stated the “test” that was “generally applicable” when harmless-error analysis was appropriate. “[Cjertain fundamental rights,” he declared, “are guaranteed to the defendant upon which he can insist regardless of the state of the evidence, such as the right to a jury trial and the right to protection under the plea of once in jeopardy . . . .” (People v. Watson, supra, 46 Cal.2d at p. 835.)
Second, Justice Spence’s opinion did not hold that former section 4V2 mandated the so-called “reasonable probability” standard as the only “test” that could be employed when harmless-error analysis is appropriate, but simply defined that standard as the ‘test” that was “generally applicable.” (People v. Watson, supra, 46 Cal.2d at p. 836, italics added.) In a word, the constitutional provision does not “expressly or impliedly mandate[] any specific standard of prejudice for any kind of error in any kind of proceeding.” (People v. Brown, supra, 46 Cal.3d at p. 467 (conc. opn. of Mosk, J.).)
[537]Third, and most important, Justice Spence’s opinion did not raise the “reasonable probability” standard to constitutional status alongside former section 4Vz itself. That test is merely a gloss on the constitutional provision. (See People v. Watson, supra, 46 Cal.2d at pp. 834-837.)
In Watson, Justice Carter, in dissent, disagreed with Justice Spence’s opinion as to both the construction and application of former section 4Vz. One of his comments should be noted: “It is perfectly obvious to me”—and, indeed, it should be perfectly obvious to all who give the matter any consideration—“that the concept of the framers of section 4Vz of article VI of our Constitution was that technical errors in instructions to the jury or in the admission or rejection of evidence or errors in pleading or procedure which could not affect the result in a case should not be relied upon as a ground for the reversal of a judgment.” (People v. Watson, supra, 46 Cal.2d at p. 840 (dis. opn. of Carter, J.).)
In view of the foregoing, we must allow that the construction and application of what was formerly section 4Vz and what is now section 13 may be hard to determine fully and with precision. But we can at least arrive at this conclusion. The constitutional provision was not intended to abrogate or obviate our rule of automatic reversal for the admission of a coerced confession. It was designed simply to constitutionally preclude a reversal when the error in question is “unimportant” or “purely technical”—unlike the introduction of a coerced confession, which is a profoundly grave defect going to the very heart of a criminal trial.
In concluding to the contrary, the majority make several missteps that prove to be fatal.
First and most serious, the majority fail to recognize that what was formerly section 4Vz and what is now section 13 was not intended even to reach our rule of automatic reversal. They pay too little attention to the constitutional provision’s words and its historical background and context, and too much attention to Justice Sloss’s lead opinion in O’Bryan. The fact that several decisions have subsequently cited that opinion does not render it sound. Perhaps it was “clear” to Justice Sloss that the constitutional provision “applies to constitutional as well as to nonconstitutional errors . . . .” (Maj. opn., ante, at p. 501.) It was not clear to Justice Lorigan or, more significantly, to the proponents of the measure, who intended it to forgive “unimportant” or “purely technical” errors, among which constitutional defects do not seem to figure. In addition, our many decisions recognizing the rule of automatic reversal did not “los[e] sight of the principal purpose and significance” of the constitutional provision. {Id. at p. 503.) Rather, the [538]majority themselves appear never to have caught sight of such matters in the first place.
Second and perhaps as serious, the majority assume without basis that a criminal trial can be deemed “fair” under the California Constitution even if a coerced confession is admitted. Surely the framers of the state charter would be surprised. The state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession effectively define a trial as “fair” only if it is without such a taint. In the lead opinion in O’Bryan, Justice Sloss was certainly right on one point: “When we speak of administering ‘justice’ in criminal cases, under the English or American system of procedure, we mean something more than merely ascertaining whether an accused is or is not guilty. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.” (People v. O’Bryan, supra, 165 Cal. at p. 65 (lead opn. by Sloss, J.).) It appears beyond question that “substantial rights” include the privilege against self-incrimination and that “orderly legal procedure” does not allow the introduction of a coerced confession.
Third, and related to the preceding, the majority treat a confession as though it were “ordinary” evidence, which has long been subject to harmless-error analysis. Of course, it is not. As stated, a confession is evidence sui generis, being substantially an extrajudicial plea of guilty.
Fourth, the majority, in purporting to consider our rule of automatic reversal and its rationale, actually set up and knock down what is nothing more than a straw man.
As stated, the rule with which we are concerned requires automatic reversal for the admission of a coerced confession. But the rule that the majority choose to attack is the derivative and broader one that treats as reversible per se the introduction of any confession violative of the United States Constitution. The majority confuse the two. Contrary to their implication, the latter rule is not at issue in this matter. (See fn. 1, ante.)
Similarly, the rationale of our rule of automatic reversal for the admission of a coerced confession rests on the policy of fairness in the contest between the government and the individual, which underlies the state constitutional privilege against self-incrimination and the related rule barring the admission of a coerced confession. But the rationale that the majority decide to criticize depends on considerations regarding the inherent evidentiary force of confessions as such, which is not substantially associated with the rule at [539]issue. The majority confuse the two rationales. Contrary to their implication, the considerations referred to above are not prominent in coerced-confession cases. (See, e.g., People v. Jimenez, supra, 21 Cal.3d at pp. 605-606; People v. Sanchez, supra, 70 Cal.2d at p. 571; People v. Brommel, supra, 56 Cal.2d at p. 634; People v. Trout, supra, 54 Cal.2d at p. 585; People v. Berve, supra, 51 Cal.2d at p. 290; People v. Loper, supra, 159 Cal. at p. 20; People v. Barric, supra, 49 Cal. at p. 345; People v. Johnson, supra, 41 Cal. at p. 455; People v. Ah How, supra, 34 Cal. at pp. 223-224; but see People v. Matteson, supra, 61 Cal.2d at p. 470 [dictum].)
The majority’s confusion of rules and rationales is manifest.
Their discussion focuses largely and extensively on People v. Schader (1965) 62 Cal.2d 716, 728-731 [44 Cal.Rptr. 193, 401 P.2d 665] (hereafter sometimes Schader), and its progeny, including People v. Jacobson (1965) 63 Cal.2d 319, 329-331 [46 Cal.Rptr. 515, 405 P.2d 555] (hereafter sometimes Jacobson). These decisions did not involve coerced confessions, but instead statements obtained in violation of a criminal defendant’s Sixth Amendment right to counsel as enunciated in the then “new doctrine” (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2676, p. 3215) of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361],
Schader is the source of the rule that the introduction of any confession violative of the United States Constitution is reversible per se. It employed as its foundation the rule requiring automatic reversal for the admission of a coerced confession. It proceeded to extend that rule into the derivative and broader rule referred to above. In doing so, it did not rely on the nature of the underlying violation. The reason is manifest: as explained, the admission of a coerced confession is a profoundly grave defect going to the very heart of a criminal trial; the introduction of a statement offensive to Escobedo and Dorado is not comparable. Rather, Schader used as its rationale the fact that evidentiary force inheres in confessions as such—that, in its own words, any “confession operates as a kind of evidentiary bombshell which shatters the defense” (People v. Schader, supra, 62 Cal.2d at p. 731). Jacobson followed Schader in this regard, recognizing the rule and its rationale. (See People v. Jacobson, supra, 63 Cal.2d at pp. 329-330.) It also distinguished Schader in accordance with its own terms, concluding that, on the peculiar facts of that particular case, two statements “improperly obtained” under Escobedo and Dorado “were . . . merely cumulative” to eight properly obtained statements. (Id. at p. 331.)
As a result of their confusion, the majority in effect challenge not the rule of automatic reversal for the admission of a coerced confession but rather the [540]derivative and broader rule that the introduction of any confession violative of the United States Constitution is reversible per se. Whether they are successful—a dubious proposition—matters not. As stated, the latter rule is not at issue, only the former. Moreover, the latter rule may fall without taking down the former.
The majority attempt to hide their confusion of rules and rationales—from themselves or from others or from both, I cannot say—by declaring that “there is nothing in . . . any . . . decision of this court that supports the . . . distinction” set out above. (Maj. opn., ante, at p. 504, fn. 15.)
Can the majority possibly mean that the rule of automatic reversal for the admission of a coerced confession was not extended in Schader into the derivative and broader rule that the introduction of any confession violative of the United States Constitution is reversible per se? Schader itself belies any such claim. (See People v. Schader, supra, 62 Cal.2d at pp. 728-731.)
Or can the majority possibly mean that the rationale of the rule of automatic reversal for the admission of a coerced confession rests on the evidentiary force that inheres in confessions as such? Any such claim founders on coerced-confession cases decided both before and after Schader, including People v. Jimenez, supra, 21 Cal.3d 595, 605-606; People v. Sanchez, supra, 70 Cal.2d 562, 571; People v. Brommel, supra, 56 Cal.2d 629, 634; People v. Trout, supra, 54 Cal.2d 576, 585; People v. Berve, supra, 51 Cal.2d 286, 290; People v. Loper, supra, 159 Cal. 6, 20; People v. Barric, supra, 49 Cal. 342, 345; People v. Johnson, supra, 41 Cal. 452, 455; and People v. Ah How, supra, 34 Cal. 218, 223-224.
Among coerced-confession cases, the only apparent exception in this regard—such as it is—is our pre-Schader decision in People v. Matteson, supra, 61 Cal.2d 466. There, we concluded that the admission of a coerced confession required automatic reversal. (Id. at p. 469.) We also concluded that the error was not cured by the trial court’s striking the confession and admonishing the jury to disregard it entirely. “In cases involving involuntary statements of the accused,” we reasoned, “the weight of other evidence of guilt is not considered. Incriminating statements from defendant’s own tongue are most persuasive evidence of his guilt, and the part they play in securing a conviction cannot be determined. (See People v. Parham, supra, 60 Cal.2d 378, 385.) For the same reason, an admonition or an instruction to the jury to disregard involuntary incriminating statements does not cure the erroneous admission of such statements.” (People v. Matteson, supra, 61 Cal.2d at p. 470, italics added.)
To the extent that the majority imply that the italicized dictum in Matteson is somehow “typical” of coerced-confession cases (maj. opn., ante, p. 494), [541]they turn reality on its head. This language, as even a cursory review of the cited coerced-confession cases demonstrates, is altogether atypical. To claim otherwise is to indulge in revisionist history.
One final point: Our rule of automatic reversal is indeed our rule.
It arose more than a hundred years ago without citation to the United States Constitution or decisions construing that instrument. (See, e.g., People v. Ah How, supra, 34 Cal. at pp. 223-224; People v. Johnson, supra, 41 Cal. at p. 455; People v. Barric, supra, 49 Cal. at p. 345.)
Moreover, it came to full stature well before 1967. It was only in that year, in its landmark Chapman decision, that the United States Supreme Court declared that the question of reversibility for error in a state criminal trial, even error of federal constitutional dimension, was governed other than by state law. (See Chapman v. California, supra, 386 U.S. at pp. 22-24 [17 L.Ed.2d at pp. 709-711]; see, generally, id. at pp. 45-57 [17 L.Ed.2d at pp. 722-729] (dis. opn. of Harlan, J.).) Prior to that time it was commonly believed, apparently, that the issue was one of state law. Certainly that was our belief. (See, e.g., People v. Bostick (1965) 62 Cal.2d 820, 823-827 [44 Cal.Rptr. 649, 402 P.2d 529]; People v. Powell (1967) 67 Cal.2d 32, 56 [59 Cal.Rptr. 817, 429 P.2d 137] [implying that before Chapman we believed that “our inquiry” was “limited” to “article V, section 13, of our Constitution”]; see also Chapman v. California, supra, 386 U.S. at pp. 51-53 [17 L.Ed.2d at pp. 725-727] (dis. opn. of Harlan, J.) [implying that “California courts” had applied the “California harmless-error rule . . . incorporated in that State’s constitution” to errors of federal constitutional dimension as well as those of state law].) To be sure, our rule has in its latter days become adorned with citations to federal constitutional provisions and decisions relating thereto. But it is simply not compelled by any of them.8
The majority recognize that our rule of automatic reversal is indeed our rule. Here, they do no more than bow to necessity.
[542]But in an apparent effort to diminish the authority of our rule, the majority seek to show that it arose only 35 years ago in People v. Berve, supra, 51 Cal.2d 286. The attempt falters on the facts. As stated, the rule goes back well over a century, not merely three and one-half decades. This is not to deny that Berve is peculiarly significant. In Watson, we restated, but did not invent, the long-established general rule of harmless-error analysis. Similarly, in Berve, which was decided only two years later, we restated, but did not invent, the long-established exception for the admission of a coerced confession.
Certainly, the majority’s assertion that in the period before Berve we subjected the admission of coerced confessions to harmless-error analysis in “each” of “numerous” decisions (maj. opn., ante, pp. 494 & 502, fn. 14) is what may most charitably be labeled an overstatement. A brief review of the cases they cite proves the point.
Thus, in People v. Gonzales (1944) 24 Cal.2d 870 [151 P.2d 251], People v. Rogers (1943) 22 Cal.2d 787 [141 P.2d 722], and People v. Ferdinand (1924) 194 Cal. 555 [229 P. 341], we did not even consider whether to apply our rule of automatic reversal because we did not find any confession to have been coerced. Rather, in Gonzales, we simply held harmless the erroneous refusal of an instruction that the jury was to determine the voluntariness of the defendant’s confession. (People v. Gonzales, supra, 24 Cal.2d at pp. 877-878.) In Rogers, we found an instruction on corpus delicti to be prejudicial error (People v. Rogers, supra, 22 Cal.2d at pp. 806-808)— expressly noting that the defendant had “not challenged” the “admissibility” of his confessions “upon any ground which required a ruling as to whether they had been freely or voluntarily made, and the trial judge evidently did not determine this of his own motion” (id. at p. 798). In Ferdinand, we held harmless what we assumed to be the erroneous refusal to permit defense counsel to examine a witness on voir dire concerning the circumstances of the confession of one of the defendants. (People v. Ferdinand, supra, 194 Cal. at pp. 565-570.)
In People v. Jones (1944) 24 Cal.2d 601 [150 P.2d 801]—contrary to the majority’s assertion—we did indeed apply a rule of automatic reversal, but apparently that of the United States Constitution and not California law. At the beginning of our discussion therein, after relating the facts, we observed that the evidence other than the defendant’s confession was “clearly insufficient” to establish guilt. {Id. at p. 604.) But at the end, before proceeding to disposition, we held: “ ‘The Constitution of the United States stands as a bar [543]against the conviction of any individual in an American Court by means of a coerced confession. . . ” (Id. at p. 611, quoting Ashcraft v. Tennessee (1944) 322 U.S. 143, 155 [88 L.Ed. 1192, 1200, 64 S.Ct. 921].)
In People v. Stroble (1951) 36 Cal.2d 615 [226 P.2d 330], by contrast, we concluded that the federal constitutional rule of automatic reversal did not apply on the peculiar facts of that case—erroneously, it turns out. In affirming a judgment of death therein, we “assume[d]” that the first of at least six confessions made by the defendant was coerced. (Id. at p. 623.) We then recognized that the “introduction in evidence of such a confession . . . would offend the due process clause of the Fourteenth Amendment” and require automatic reversal. (Ibid.) Nevertheless, we held that, under the circumstances presented, the “use of the first confession could not have affected the fairness of defendant’s trial, because defendant thereafter made at least five confessions, of materially similar substance and unquestioned admissibility, which were put in evidence.” (Ibid.)
On certiorari, the United States Supreme Court affirmed sub nomine Stroble v. California, supra, 343 U.S. 181. In doing so, however, it rejected our assumption that the first confession was coerced: “[W]e are unable to say that [this] confession . . . was the result of coercion . . . .” (Id. at p. 191 [96 L.Ed. at p. 191].) But it also rejected our holding that automatic reversal could have been avoided: “If th[is] confession . . . was in fact involuntary, the conviction cannot stand . . . .” (Id. at p. 190 [96 L.Ed. at p. 191].)
In a related effort to diminish the authority of our rule, the majority effectively criticize Berve and its progeny for not discussing our allegedly “numerous” decisions subjecting the admission of coerced confessions to harmless-error analysis. But as shown, there was practically nothing to discuss. The exception, of course, is People v. Stroble, supra, 36 Cal.2d 615. After the United States Supreme Court declared on certiorari that our use of harmless-error analysis therein was erroneous, what was left for us to say?
In a further effort to diminish the authority of our rule, the majority again set up and knock down their straw man, confusing this rule requiring automatic reversal for the admission of a coerced confession with its rationale resting on the policy of fairness in the contest between the government and the individual—which is at issue here—and the derivative and broader rule that treats as reversible per se the introduction of any confession violative of the United States Constitution with its rationale depending on considerations regarding the inherent evidentiary force of confessions as such—which is not at issue. As a result, the majority imply that Berve and its [544]progeny “did not suggest that the . . . admission of a [coerced] confession . . . deprived the defendant of the ‘orderly legal process’ constituting a fair trial,” but instead reasoned that such a confession “ ‘almost invariably’ plays” a “significant role” “in any criminal trial in which it is introduced.” (Maj. opn., ante, at p. 502.) That is simply not the case. In Berve we made the point plain: The admission of a coerced confession “constitutes a denial of due process of law . . . under the . . . state Constitution [] requiring a reversal of the conviction although other evidence may be consistent with guilt” solely because the presence of such a confession "'offend[s] the community’s sense of fair play and decency.’ ” (People v. Berve, supra, 51 Cal.2d at p. 290, quoting Rochin v. California, supra, 342 U.S. at p. 173 [96 L.Ed.2d at pp. 190-191].)
III. Fulminante and Its Effects
What the majority label an “appropriate opportunity” (maj. opn., ante, at p. 500) for their ill-conceived abandonment of the California rule of automatic reversal for the admission of a coerced confession—but what is perhaps in fact merely a convenient excuse—is the United States Supreme Court’s recent decision in Arizona v. Fulminante, supra, 499 U.S. 279. The reasoning and result of that case demand our close examination.
In Fulminante, the defendant was indicted in Arizona for the first degree murder of his 11-year-old stepdaughter. Prior to trial in the Arizona Superior Court, he moved to suppress a confession he had made on the ground that it was inadmissible because coerced in violation of his rights under the United States Constitution, effectively including the Fifth Amendment privilege against self-incrimination. He was unsuccessful. The confession was then admitted at trial. The defendant was subsequently convicted of first degree murder and sentenced to death. On appeal, the Arizona Supreme Court reversed. It held that the confession was in fact coerced contrary to federal constitutional law. It also held that under that same law its admission required automatic reversal.
On certiorari, the United States Supreme Court affirmed. Its discussion consists of four parts: (1) a description of the facts; (2) whether the confession was inadmissible under the United States Constitution because coerced; (3) whether the admission of a coerced confession remains automatically reversible under the federal charter or is to be subject to harmless-error analysis pursuant to Chapman', and (4) whether the admission of the confession there was prejudicial.
The Fulminante court was widely fragmented and deeply divided. Justice White delivered an opinion, which was for the court as to: (1) the description [545]of the facts, in which Justices Marshall, Blackmun, Stevens, Scalia, and Kennedy joined; (2) the conclusion that the confession was in fact inadmissible under the United States Constitution because coerced, in which Justices Marshall, Blackmun, Stevens, and Scalia joined; and (3) the holding that the admission of the confession there was prejudicial, in which Justices Marshall, Blackmun, Stevens, and Kennedy joined. Chief Justice Rehnquist delivered an opinion, which was for the court as to the conclusion that the admission of a coerced confession is no longer automatically reversible under the federal charter but is henceforth subject to harmless-error analysis, in which Justices O’Connor, Scalia, Kennedy, and Souter joined. Justice White filed an opinion dissenting from the purported abrogation of the rule of automatic reversal, in which Justices Marshall, Blackmun, and Stevens joined. Chief Justice Rehnquist filed an opinion dissenting as to coercion, in which Justices O’Connor, Kennedy, and Souter joined. He also filed an opinion dissenting as to prejudice, in which Justices O’Connor and Scalia joined. Justice Kennedy filed an opinion concurring in the judgment, explaining why he joined which parts of the foregoing opinions, including his views to the effect that there was prejudice but no error.
The first question that arises is whether Chief Justice Rehnquist’s opinion purportedly abrogating the federal constitutional rule of automatic reversal controls the issue before this court. The answer is negative.
What we shall assume to be the “authoritativeness” of Chief Justice Rehnquist’s opinion extends only to the United States Constitution. The determination here concerns California law. In this area, of course, we are the final arbiters. (Cf. Allen v. Superior Court (1976) 18 Cal.3d 520, 525 [134 Cal.Rptr. 774, 557 P.2d 65] [“[0]ur Constitution is ‘a document of independent force’ [citations], ‘whose construction is left to this court, informed but untrammeled by the United States Supreme Court’s reading of parallel federal provisions. [Citations.]’ ”].) We must shoulder the responsibility. (See Stevens, The Bill of Rights: A Century of Progress (1992) 59 U. Chi. L.Rev. 13, 16 fn. 9 [implying that “state supreme courts” may “look to their state constitutions” and statutory and decisional law “to hold that ‘a coerced confession may so infect the trial process that its admission into evidence demands reversal’ and that the admission of a coerced confession is not subject to harmless error analysis”].)
In passing, however, we may observe that, at first glance, the “authoritativeness” of Chief Justice Rehnquist’s opinion appears minimal. The weight to be accorded to his views must be reduced—to borrow words he wrote in another case—by reason of the fact that they prevailed “by the narrowest of margins, over [a] spirited dissent[] challenging the[ir] basic underpinnings [546]. . . (Payne v. Tennessee (1991) 501 U.S. _, _ [115 L.Ed.2d 720, 737-739, 111 S.Ct. 2597, 2611] (per Rehnquist, C. J.).) The weight of his views must be reduced still further because of the strong criticism they have justifiably provoked. (See, e.g., Ogletree, Arizona v. Fulminante: The Harm of Applying Harmless Error to Coerced Confessions (1991) 105 Harv. L.Rev. 152, 152-154, 161-175 [hereafter Ogletree].)
When we look more closely, we come to realize that the “authoritativeness” of Chief Justice Rehnquist’s opinion is actually nonexistent. The relevant discussion, which is manifestly unnecessary to the court’s judgment, is dictum. The Chief Justice later expressly admitted as much, making a virtue of necessity. (Rehnquist, C. J., Review of Major Supreme Court Decisions—October, 1990 Term (June 28, 1991) Sixty-first Judicial Conference for United States Judges of the Fourth Circuit, vol. I, p. 19 [conceding that the discussion “may be technically dicta [sic]”].)
The second question that arises is whether Chief Justice Rehnquist’s opinion is persuasive as to the issue before this court. Here too, the answer is negative.
In purportedly abrogating the federal constitutional rule of automatic reversal, Chief Justice Rehnquist lays a foundation that assumes that the United States Constitution is concerned only with the reliability of the outcome of an individual criminal trial and not at all with the legitimacy of the criminal justice system itself. (See Arizona v. Fulminante, supra, 499 U.S. at p. 308 [113 L.Ed.2d at pp. 330-331, 111 S.Ct. at p. 1264] (opn. of Rehnquist, C. J.).) As a result, he builds on sand.
Chief Justice Rehnquist then suggests that the federal constitutional rule of automatic reversal never existed, or at least has not existed since Chapman. (See Arizona v. Fulminante, supra, 499 U.S. at p. 308 [113 L.Ed.2d at pp. 330-331, 111 S.Ct. at p. 1264] (opn. of Rehnquist, C. J.).) The implication is astonishing. Recall that Chapman expressly excepted from harmless-error analysis the admission of a coerced confession, citing to Payne. (Chapman v. California, supra, 386 U.S. at p. 23 & fn. 8 [17 L.Ed.2d at p. 710].) Chapman was followed impliedly by Lego v. Twomey, supra, 404 U.S. at page 483 [30 L.Ed.2d at pages 623-624], Mincey v. Arizona, supra, 437 U.S. at page 398 [57 L.Ed.2d at pages 303-304], and New Jersey v. Portash, supra, 440 U.S. at page 459 [59 L.Ed.2d at page 510]; it was followed expressly by United States v. Hasting, supra, 461 U.S. at page 508, footnote 6 [76 L.Ed.2d at pages 105-106], Recall also that Chapman was adhered to in, and in fact reaffirmed by, Clark. (Rose v. Clark, supra, 478 U.S. at pp. 577-578 & fn. 6 [92 L.Ed.2d at pp. 470-471].) The Chief Justice sets out to [547]show that Chapman is dictum and that Payne does not stand for the proposition cited. He runs squarely into the facts, which do not yield. (See Arizona v. Fulminante, supra, 499 U.S. at p. 290 [113 L.Ed.2d at pp. 318-319, 111 S.Ct. at p. 1254] (dis. opn. of White, J.).) In addition, he ignores all the decisions that prove him wrong. The omission speaks for itself.
Chief Justice Rehnquist proceeds to declare that the question whether a federal constitutional error is automatically reversible or, instead, is subject to harmless-error analysis under Chapman depends on the following crucial distinction.
On one side, there is what he labels “ ‘trial error,’ ” which “occurfs] during the presentation of the case to the jury, and which may therefore be quantitatively assessed ... in order to determine whether [it] was harmless beyond a reasonable doubt.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 307-308 [113 L.Ed.2d at pp. 330-331, 111 S.Ct. at p. 1264] (opn. of Rehnquist, C. J.).) Here, assertedly, belongs the admission of a coerced confession, a “classic ‘trial error[.]’ ” (Id. at p. 309 [113 L.Ed.2d at pp. 330- 331, 111 S.Ct. at p. 1264] (opn. of Rehnquist, C. J.).)
On the other, there are what he calls “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 [113 L.Ed.2d at pp. 331- 332, 111 S.Ct. at p. 1265] (opn. of Rehnquist, C. J.).) Here, assertedly, belong, inter alia, the “total deprivation of the right to counsel at trial,” the participation of a “judge who was not impartial,” the “unlawful exclusion of members of the defendant’s race from a grand jury,” the denial of the “right to self-representation at trial,” and the deprivation of the “right to public trial.” (Id. at p. 310 [113 L.Ed.2d at pp. 331-332, 111 S.Ct. at p. 1265] (opn. of Rehnquist, C. J.).) Each of these flaws “affect[s]” the “entire conduct of the trial from beginning to end” or the “framework within which the trial proceeds.” (Id. at p. 310 [113 L.Ed.2d at pp. 331-332, 111 S.Ct. at p. 1265] (opn. of Rehnquist, C. J.).) “ ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” (Id. at p. 310 [113 L.Ed.2d at pp. 331-332, 111 S.Ct. at p. 1265] (opn. of Rehnquist, C. J.), quoting without internal citation Rose v. Clark, supra, 478 U.S. at pp. 577-578 [92 L.Ed.2d at pp. 470-471.)
Chief Justice Rehnquist’s crucial distinction “fails.” (Arizona v. Fulminante, supra, 499 U.S. at p. 291 [113 L.Ed.2d at pp. 319-320, 111 S.Ct. at p. 1255] (dis. opn. of White, J.).) His dichotomy, it may be noted, “has no support in precedent.” (Ogletree, supra, 105 Harv. L.Rev. at p. 164.) And that is the least of its weaknesses.
[548]To begin with, the distinction simply does not work. The omission of an instruction on the prosecution’s burden of proof beyond a reasonable doubt is, in Chief Justice Rehnquist’s words, a “classic ‘trial error[.]’ ” (Arizona v. Fulminante, supra, 499 U.S. at p. 309 [113 L.Ed.2d at pp. 330-331, 111 S.Ct. at p. 1264] (opn. of Rehnquist, C. J.).) Nevertheless, it requires automatic reversal. (Jackson v. Virginia (1979) 443 U.S. 307, 320, fn. 14 [61 L.Ed.2d 560, 574, 99 S.Ct. 2781].)9 By contrast, the denial of a criminal defendant’s right to be personally present at his own trial is surely as much a “structural defect” as the denial of his right to represent himself. Indeed, it would “strain[] credulity” to assert otherwise. (Ogletree, supra, 105 Harv. L.Rev. at p. 164.) All the same, denial of the right of personal presence is deemed subject to harmless-error analysis. (Rushen v. Spain (1983) 464 U.S. 114, 117-118 [78 L.Ed.2d 267, 272-273, 104 S.Ct. 453] (per curiam).)
Perhaps more important, the distinction is “meaningless.” (Arizona v. Fulminante, supra, 499 U.S. at p. 290 [113 L.Ed.2d at pp. 318-319, 111 S.Ct. at p. 1254] (dis. opn. of White, J.).) Chief Justice Rehnquist “never clearly articulates the structure that the structural errors undermine.” (Ogletree, supra, 105 Harv. L.Rev. at p. 164.) In fact, he never articulates that “structure” at all.
If we consider, as it were, the modem form of a criminal trial, we would conclude that the admission of a coerced confession is as great a “structural defect” as, say, the exclusion from a grand jury of persons of the same race as the defendant. The latter may have no effect whatsoever on any part or aspect of the trial. The former, however, “distorts the trial process” itself (Ogletree, supra, 105 Harv. L.Rev. at p. 166), seeing that it is substantially an extrajudicial plea of guilty.
If we look more deeply to the traditional substance of a criminal trial, we would come to the same conclusion. The bar against the admission of a coerced confession (see Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574]) and the prohibition of the exclusion of same-race persons from a grand jury (see Strauder v. West Virginia (1880) 100 U.S. (10 Otto 303) 303, 305-310 [25 L.Ed. 664, 664-666]) are coeval, each dating to the 19th century.
[549]Shorn of its analytical trappings, Chief Justice Rehnquist’s discussion reduces itself to this: a confession looks like “ordinary” evidence; and the admission of a coerced confession looks like the kind of error that may appropriately be subject to harmless-error analysis. Appearance, however, is not reality. As stated, a confession is evidence sui generis, being substantially an extrajudicial plea of guilty. Further, as explained, harmless-error analysis is designed to assess threats to the reliability of the outcome of an individual criminal trial; it does not even take cognizance of the injury peculiar to the introduction of a coerced confession, which is the undermining of fairness in the contest between the government and the individual and, ultimately, the legitimacy of the criminal justice system itself.
At bottom, it becomes manifest, Chief Justice Rehnquist holds a “belief that there is [nothing] more ‘fundamental’ about involuntary confessions” than about other statements inadmissible under the United States Constitution, which are indeed subject to harmless-error analysis. (Arizona v. Fulminante, supra, 499 U.S. at p. 311 [113 L.Ed.2d at pp. 331-332, 111 S.Ct. at p. 1265] (opn. of Rehnquist, C. J.).) We need not engage in protracted argument on the point. Our constitutional history demonstrates that such a belief is unsound.
“The search for truth,” as Justice White observes, “is indeed central to our system of justice, but ‘certain constitutional rights are not, and should not be, subject to harmless-error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial.’ [Citation.] The right of a defendant not to have his coerced confession used against him is among those rights, for using a coerced confession ‘abort[s] the basic trial process’ and *render[s] a trial fundamentally unfair.’ ” (Arizona v. Fulminante, supra, 499 U.S. at p. 295 [113 L.Ed.2d at pp. 321-322, 111 S.Ct. at p. 1257] (dis. opn. of White, J.), quoting Rose v. Clark, supra, 478 U.S. at p. 587 [92 L.Ed.2d at pp. 476-477] (conc. opn. of Stevens, J.) and id. at pp. 577 & 578, fn. 6 [92 L.Ed.2d at p. 470].)
Having closely considered the question, we must arrive at this conclusion: Chief Justice Rehnquist’s opinion furnishes no principled basis on which to reconsider, less still abandon, our rule of automatic reversal in favor of harmless-error analysis.
IV. Prudential Considerations
Matters of principle aside for the moment, we should decline to reconsider and abandon the California rule of automatic reversal for the admission of a coerced confession because of purely prudential considerations.
[550]At the threshold, the majority suggest that section 13 of article VI of the California Constitution bars us from taking such considerations into account. They say that the “California constitutional reversible-error provision was adopted for the specific purpose of eliminating ... a prophylactic approach to reversible error.’’ (Maj. opn., ante, at p. 503.) They paint with too broad a brush. As explained, the constitutional provision was not intended to abrogate or obviate our rule of automatic reversal for the admission of a coerced confession. It was designed simply to constitutionally preclude a reversal when the error in question is “unimportant” or “purely technical”—unlike the introduction of a coerced confession, which is a profoundly grave defect going to the very heart of a criminal trial.
Let us proceed. The benefits of discarding our rule of automatic reversal are likely to be quite low. Few, if any, judgments could conceivably be salvaged by application of harmless-error analysis.
We must be clear about one point. The standard of prejudice to be applied would be that of the United States Constitution, viz., Chapman's “reasonable doubt” test. That is because the admission of a coerced confession remains (at least for the time being) error of federal constitutional dimension (see Arizona v. Fulminante, supra, 499 U.S. at pp. 284-289 [113 L.Ed.2d at pp. 314-318, 111 S.Ct. at pp. 1251-1253] (opn. of White, J.)) as well as error under state law.
Chapman, it need not be emphasized, is intolerant and unforgiving of error. “The California constitutional [harmless-error] rule emphasizes ‘a miscarriage of justice,’ but the California courts”—and the majority are in accord (see maj. opn., ante, at pp. 508-509)—“have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s view of ‘overwhelming evidence.’ We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85 [11 L.Ed.2d 171, 84 S.Ct. 229] [(1963)]. There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ . . . [T]his statement in Fahy . . . emphasizes an intention not to treat as harmless those constitutional errors that ‘affect substantial rights’ of a party. An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless. Certainly error, constitutional error, in illegally admitting highly prejudicial evidence . . . , casts on someone other than the person prejudiced by it a burden to show that it was harmless. . . . There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and [551]requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California, supra, 386 U.S. at pp. 23-24 [17 L.Ed.2d at pp. 710-711], fns. omitted.)
In Yates v. Evatt (1991) 500 U.S. _ [114 L.Ed.2d 432, 111 S.Ct. 1884], and Sullivan v. Louisiana, supra,_U.S._[124 L.Ed.2d 182], which were decided after Fulminante, the United States Supreme Court provided the following explanation.
“The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at p__[114 L.Ed.2d at pp. 447-448, 111 S.Ct. at p. 1892]; accord, Sullivan v. Louisiana, supra,_U.S. at pp. - [124 L.Ed.2d at p. 189].) “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question . . . .” (Yates v. Evatt, supra, 500 U.S. at p--[114 L.Ed.2d at pp. 448-449, 111 S.Ct. at p. 1893]; accord, Sullivan v. Louisiana, supra,_U.S. at p__[124 L.Ed.2d at p. 189].)
The focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict on evidence [and instructions] . . . , independently of the” error. (Yates v. Evatt, supra, 500 U.S. at p__[114 L.Ed.2d at pp. 448-449, 111 S.Ct. at p. 1893].) Stated differently, the “question” is “what effect [the error] had upon the guilty verdict in the case at hand.” (Sullivan v. Louisiana, supra,_U.S. at p__[124 L.Ed.2d at p. 189].) Or in still other words, the “inquiry” is “whether the guilty verdict actually rendered in [the] trial was surely unattributable to the error.” (Ibid.)
As a consequence, the focus under Chapman is not what a reviewing court might itself decide on a cold record. “[W]hen it does that, ‘the wrong entity judges the defendant guilty.’ ” (Sullivan v. Louisiana, supra,_U.S. at p._ [124 L.Ed.2d at p. 190], quoting Rose v. Clark, supra, 478 U.S. at p. 578 [92 L.Ed.2d at pp. 470-471].) By its very terms, Chapman precludes such a court from finding harmlessness based simply “upon [its own] view of ‘overwhelming evidence.’ ” (Chapman v. California, supra, 386 U.S. at p. 23 [17 L.Ed.2d at p. 710].)
Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would [552]have made the decision it did, “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved [its case] beyond a reasonable doubt, it does not ensure that it has proved [it] beyond a reasonable doubt to the satisfaction of a jury.” (Yates v. Evatt, supra, 500 U.S. at p._ [114 L.Ed.2d at pp. 454-455, 111 S.Ct. at p. 1898], italics in original (conc. opn. of Scalia, J.); accord, Sullivan v. Louisiana, supra,_U.S. at p._[124 L.Ed.2d at p. 188].) “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered . . . .” (Sullivan v. Louisiana, supra,_U.S. at p__[124 L.Ed.2d at p. 189].)
Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . .” (Sullivan v. Louisiana, supra,_U.S. at p._[124 L.Ed.2d at pp. 189-190].) “[M]ore [is required] than appellate speculation about a hypothetical jury’s action . . . .” (Ibid.)
So long as the admission of a coerced confession remains error of federal constitutional dimension and, as such, subject to the federal constitutional standard of prejudice embodied in Chapman's “reasonable doubt” test, the application of a standard under the California Constitution is a purely academic question. Of course—contrary to what the majority assume—that standard would not necessarily be Watson's “reasonable probability” test. As explained, the state charter does not “expressly or impliedly mandate[] any specific standard of prejudice for any kind of error in any kind of proceeding.” (People v. Brown, supra, 46 Cal.3d at p. 467 (conc. opn. of Mosk, J.).) Watson itself simply defined its test as one that was “generally applicable.” (People v. Watson, supra, 46 Cal.2d at p. 836, italics added.) Another test, for example, is the “reasonable possibility” standard of People v. Brown, supra, 46 Cal.3d 432, 448, which is employed for “state-law error at the penalty phase of a capital trial.” The tests of Brown and Chapman “are the same in substance and effect.” (People v. Ashmus (1991) 54 Cal.3d 932, 965 [2 Cal.Rptr.2d 112, 820 P.2d 214].)
The standard of prejudice to be applied would probably matter little. On one point at least, Schader’s dictum is sound and indeed convincing: a “confession operates as a kind of evidentiary bombshell which shatters the defense.” (People v. Schader, supra, 62 Cal.2d at p. 731.) At oral argument, the People expressly conceded that a “confession will be a bombshell most of the time.” As Justice Kennedy elaborated in Fulminante: a “confession may have” an “indelible impact” “on the trier of fact, as distinguished, for instance, from the impact of an isolated statement that incriminates the [553]defendant only when connected with other evidence. If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case. Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant’s plea of innocence.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 313-314 [113 L.Ed.2d at pp. 332-334, 111 S.Ct. atpp. 1266-1267] (conc. opn. of Kennedy, J.).) Under Watson, the admission of a coerced confession would almost always be prejudicial. The majority’s bald assertion that “in many instances” the error would be harmless blinks reality. (Maj. opn., ante, p. 505.) Under Chapman, prejudice would be found a fortiori. It is scarcely conceivable that such a confession could be found “unimportant in relation to everything else the jury considered . . . .” (Yates v. Evatt, supra, 500 U.S. at p. _ [114 L.Ed.2d at pp. 448-449, 111 S.Ct. at p. 1893], italics added.) In this case, for example, the prosecutor deliberately introduced a coerced confession. He did not consider it “unimportant.” Neither could the jury. That, of course, is the very reason that admission of a coerced confession cannot be deemed harmless. Indeed, harmless coercion is a true oxymoron.
Although the benefits of discarding our rule of automatic reversal are likely to be quite low, the costs are surely to be very high.
An application of harmless-error analysis would have a “corrosive impact on the administration of criminal justice.” (Rose v. Clark, supra, 478 U.S. at p. 588 [92 L.Ed.2d at pp. 477-478] (conc. opn. of Stevens, J.).) It “can only encourage prosecutors to subordinate the interest in respecting” the law “to the ever-present and always powerful interest in obtaining a conviction in a particular case.” (Id. at pp. 588-589 [92 L.Ed.2d at pp. 477-478] (conc. opn. of Stevens, J.); cf. Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629] [stating that the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done”].) Similarly, it can only invite courts—ours included—to favor an allegedly “efficient” processing of cases with a view toward the “reliability” of the outcome of an individual criminal trial over the doing of justice in order to preserve the legitimacy of the criminal justice system itself.
As our analysis reaches its end, I recognize that the course I would take—to adhere to our rule of automatic reversal—might conceivably produce the “effect of eroding . . . confidence in the criminal justice system” [554](maj. opn., ante, at p. 509) among those persons in our midst who want convictions to be upheld regardless of the cost to law and morality. But the course the majority have taken—to abandon our rule—will surely produce a similar effect among those thoughtful members of society who desire justice to be done above all. When the matter is presented thus, the better path is clear.
V. Conclusion
On the many pages that have preceded, much has been written. All those words, however, add up only to this: There is no reason to abandon or even to reconsider the well- and long-settled California rule of automatic reversal for the admission of a coerced confession. I would not. I shall not.
It must be emphasized that the issue presented in this matter concerns our rule of automatic reversal for the admission of a coerced confession. It does not relate to a rule that is derived therefrom, but broader in scope, to the effect that the “introduction of a confession obtained from a defendant in violation of [federal] constitutional guarantees is prejudicial per se and requires reversal regardless of other evidence of guilt.” (People v. Fioritto (1968) 68 Cal.2d 714, 720 [68 Cal.Rptr. 817, 441 P.2d 625].)
From time to time, the accuracy of the historical exposition that the Bram court set out in support of its conclusions has been assailed. (See McCormick, The Scope of Privilege in the Law of Evidence (1938) 16 Tex. L.Rev. 447, 453; 3 Wigmore, Evidence (3d ed. 1940) § 823, p. 250, fn. 5; Developments in the Law—Confessions (1966) 79 Harv. L.Rev. 935, 960 [following McCormick and Wigmore]; Miranda v. Arizona, supra, 384 U.S. at p. 506, fn. 2 [16 L.Ed.2d at pp. 741-742] (dis. opn. of Harlan, J.) [same].) After Miranda, however, the [514]assault is without doctrinal significance. (See 3 Wigmore, Evidence (Chadbourn rev. 1970) § 823, p. 340 [hereafter 3 Wigmore].)
It should be noted that Brant’s language that a confession may not be “ ‘obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence’ ” (Bram v. United States, supra, 168 U.S. at pp. 542-543 [42 L.Ed. at pp. 573-574]) “under current precedent does not state the standard for determining the voluntariness of a confession” for relevant federal constitutional purposes. (Arizona v. Fulminante, supra, 499 U.S. at p. 285 [113 L.Ed.2d at pp. 314-315, 111 S.Ct. at p. 1251] (opn. of White, J.).)
The majority declare that the “situation in which a confession is obtained as a result of an improper promise of benefit or leniency” is “much more common” than that in which a confession is “elicited by violence or threats of violence . . . .” (Maj. opn., ante, at p. 506.) This factual assertion is unsupported. I hope it is true. I fear it is not.
It has been asserted that in Colorado v. Connelly (1986) 479 U.S. 157 [93 L.Ed.2d 473, 107 S.Ct. 515], the United States Supreme Court departed from the reliability policy for purposes of the federal constitutional rule. (1 McCormick, supra, § 147, p. 568.) That is not the case. The Connelly court held only that the rule requires a confession that is coerced by the government, and is not satisfied by a statement that is merely unreliable. (Colorado v. Connelly, supra, 479 U.S. at pp. 163-167 [93 L.Ed.2d at pp. 481-485]; cf. People v. Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330] [holding in substance that the state constitutional rule incorporates the same requirement].)
Of course, “the presence of functions extending beyond factfinding reliability does not necessarily place a constitutional violation outside the reach of [harmless-error analysis under] Chapman. The self-incrimination privilege serves a variety of interests beyond the protection of the innocent, yet the Court in Chapman applied the harmless error standard to an infringement of that right [under Griffin v. California (1965) 380 U.S. 609, 611-615 [14 L.Ed.2d 106, 108-110, 85 S.Ct. 1229], which prohibits comment on a defendant’s failure to testify at trial that invites or allows the jury to infer guilt therefrom]. Similarly, the . . . [exclusionary] rule [of Mapp v. Ohio (1961) 367 U.S. 643, 655 (6 L.Ed.2d 1081, 1089-1090, 81 S.Ct. 1684, 84 A.L.R.2d 933)] is designed to protect a right of privacy guaranteed by the Fourth Amendment, but the Court has held (unanimously) that the Chapman harmless error standard applies to Mapp violations. In both instances, however, the ‘prophylactic’ or ‘supplemental’ function of the particular constitutional standard being applied may explain why Chapman governs notwithstanding the non-reliability functions of the general guarantee. Thus, the admission of a coerced confession, viewed as a core violation of the Fifth Amendment, is subject to the automatic reversal rule.” (3 LaFave & Israel, supra, (1991 pocket supp.) § 26.6, pp. 89-90, fns. omitted and italics added.)
Similarly, Statutes 1851, chapter 5, section 71, page 61: “The Court shall, in every stage of an action, disregard any error or defect in the pleadings, or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect." This provision is the source of the substantially identical Code of Civil Procedure section 475 as enacted in 1872: “The Court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect." In 1897, the provision was amended into its present form: “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Stats. 1897, ch. 47, § 1, p. 44, italics added.)
It should be noted that in People v. Murphy (1873) 47 Cal. 103, 106, overruled on another point in People v. Ditson (1962) 57 Cal.2d 415, 440 [20 Cal.Rptr. 165, 369 P.2d 714], Justice Crockett held in his opinion for the court—Chief Justice Wallace not expressing any views— that “we must presume that [an erroneous instruction] was injurious to the defendant unless the contrary clearly appears.” And in People v. Stanley (1873) 47 Cal. 113, 119, Justice Crockett held in his opinion for the court, over Chief Justice Wallace’s vigorous dissent, that “every error in the admission of testimony is presumed to be injurious, unless the contrary clearly appears.” Just a few months later, these two decisions were effectively overruled in Brotherton, as the words quoted in the text establish. To be sure, “presumption of prejudice” language did occasionally make an appearance in our opinions after Brotherton, but it did so only rarely. (See People v. Furtado (1881) 57 Cal. 345, 347; People v. Sansome (1890) 84 Cal. 449, 451 [24 P. 143]; People v. Moore (1894) 103 Cal. 508, 511 [37 P. 510], overruled on another point, People v. Russell (1909) 156 Cal. 450, 458-459 [105 P. 416]; People v. Richards (1902) 136 Cal. 127, 128-129 [68 P. 477].)
In People v. Boyer (1989) 48 Cal.3d 247 [256 Cal.Rptr. 96, 768 P.2d 610], we discussed in dictum the “rule” followed in California that “ ‘the improper introduction of a confession [i.e., a declaration of defendant’s intentional participation in a criminal act] is considered reversible per se [citations], whereas wrongful introduction of an admission [i.e., the recital of facts tending to establish guilt when considered with the remaining evidence in the case] is deemed prejudicial unless the People show beyond a reasonable doubt that the error complained of did not contribute to the verdict. [Citations.] ....’” (Id. at pp. 279-280, fn. 23, italics, brackets, bracketed material, and ellipsis in original.) We stated: “This California distinction, never expressly divorced from federal law, is doubtful in light of Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101].” (Id. at p. 280, fn. 23.) The “rule” that we discussed in Boyer is not our rule of automatic reversal for the admission of a coerced confession, but rather the derivative and broader rule that the introduction of any confession violative of the United States Constitution is reversible per se. By happenstance, however, some of our language in Boyer proves applicable here. Our rule of automatic reversal was [542]indeed “never expressly divorced from federal law.” (Italics added.) That is because it was never married to it in the first place.
The giving of a reasonable-doubt instruction that is merely “deficient” under the United States Constitution is arguably an even more “classic ‘trial error.’ ” Yet in Sullivan v. Louisiana (1993)_U.S._, _-_ [124 L.Ed.2d 182, 189], the United States Supreme Court unanimously held that it requires automatic reversal. Chief Justice Rehnquist concurred in the opinion of the court. Writing separately, he made a transparently unsuccessful attempt to square his vote with the “trial error/structural defect” distinction he had earlier created in Fulminante. (Sullivan v. Louisiana, supra,_U.S. at pp. _-_ [124 L.Ed.2d at pp. 191-192] (conc. opn. of Rehnquist, C. J.).) His failure demonstrates that the distinction is specious.