BIRD, C J„5 Dissenting.—The authors of the Bill of Rights understood that the common law privilege against self-incrimination was the product of an historic struggle to free individuals from the oppression of government and the secret interrogations of the Star Chamber. Recognizing the privilege’s central place in our system of liberty, the framers secured it in the firm constitutional footing of the Fifth Amendment. Since that time, the privilege has been accorded a broad and generous construction in keeping with its station as “the mainstay of our adversary system.” (Miranda v. Arizona (1966) 384 U.S. 436, 460, 461 [16 L.Ed.2d 694, 715-716, 86 S.Ct. 1602, 10 A.L.R.3d 974]; see, e.g., In re Gault (1967) 387 U.S. 1, 50 [18 L.Ed.2d 527, 558-559, 87 S.Ct. 1428]; Boyd v. United States (1886) 116 U.S. 616, 633-635 [29 L.Ed. 746, 752-753, 6 S.Ct. 524].)
[143]Today’s decision departs from that established principle by applying the privilege in a rigid and grudging way. The majority treat the privilege as an historical relic, not as a living legacy capable of adjusting its scope to the demands of modern experience. In the process, the majority revert to a mode of analysis which has been repeatedly rejected as a method of determining the safeguards which must apply in commitment proceedings. I respectfully dissent from this reasoning and from a result which degrades the constitutional rights of mentally retarded persons threatened with a loss of their liberty.
I
A brief elaboration of the pertinent facts is in order. Pursuant to Welfare and Institutions Code section 6500.1,1 the district attorney of San Bernardino County initiated commitment proceedings against appellant who was alleged to be a dangerous mentally retarded person. Over appellant’s objections, the judge ruled that appellant could not refuse either (1) to be a witness in the proceeding or (2) to give testimony which might incriminate him.
Appellant was called as a witness and the judge asked him whether he had been involved in any fights. Apparently unaware of the consequences to himself, appellant dramatized his affirmative reply by swinging his fists like a fighter and by uttering emphatic “pows” in a child-like effort to simulate the sound of his fists making contact. All of this occurred in front of the jury.
As the majority note, because of a speech defect, appellant’s testimony was “interpreted” by a hospital attendant. However, the majority fail to point out that this “interpreter” was also the prosecutor’s main witness against appellant on the issue of his dangerousness. Thus, an adverse witness was allowed to “interpret” appellant’s testimony, even though the “interpretations” sometimes differed from appellant’s understandable words and the “interpreter” sometimes answered the court’s questions directly.
The prosecutor presented three witnesses. One was a physician who had interviewed appellant for one-half hour. Another was a clinical psychologist whose personal contact with appellant was limited to the administration of intelligence quotient tests. Only the hospital attendant [144]who had served as appellant’s “interpreter” could testify from personal knowledge to any aggressive conduct by appellant. All of the acts which the attendant described occurred while appellant was confined in a state hospital.
After a brief deliberation, the juiy returned a verdict finding appellant to be a dangerous mentally retarded person.
II
The Fifth Amendment declares unequivocally that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . .” The same guarantee is enshrined in article I, section 15 of the California Constitution. These provisions confer to any witness the privilege not to give answers which might incriminate him. (E.g., Black v. State Bar (1972) 7 Cal.3d 676, 685 [103 Cal.Rptr. 288, 499 P.2d 968].) They also accord the defendant in a “criminal case” the right not to testify at all. (See ibid.)
This right not to testily serves at least two important functions. It protects the defendant, who is often unschooled in the law, from being called to the witness stand where he might inadvertently waive his privilege against self-incrimination by giving testimony which bears on an element of the crime. (Cf. People v. Schader (1969) 71 Cal.2d 761, 770 [80 Cal.Rptr. 1, 457 P.2d 841].) Further, by granting this broad right to silence, our system acknowledges the prejudicial inference of guilt -commonly drawn from an assertion of Fifth Amendment rights. It is fundamentally unfair to require a person to become a witness and be forced to invoke his right to silence in front of the jury in whose hands his liberty lies. (People v. Talle (1952) 111 Cal.App.2d 650, 661-662, 667-668 [245 P.2d 633].)
It has long been established that the right not to be called as a witness is not limited to defendants in ordinary criminal prosecutions. (In re Gault, supra, 387 U.S. at pp. 49-50 [18 L.Ed.2d at pp. 558-559]; Thurston v. Clark (1895) 107 Cal. 285, 288-290 [40 P. 435]; see also United States v. U.S. Coin & Currency (1971) 401 U.S. 715, 718 [28 L.Ed.2d 434, 437, 91 S.Ct. 1041].) The right also extends to proceedings which, though civil in name, threaten a person with the loss of his liberty. (In re Gault, supra; see McNeil v. Director, Patuxent Institution (1972) 407 U.S. 245, 257 [32 L.Ed.2d 719, 727, 92 S.Ct. 2083] (cone. opn. of Douglas, J.); cf. In re Winship (1970) 397 U.S. 358, 365-366, 368 [25 L.Ed.2d 368, 375-376, 377-378, 90 S.Ct. 1068].)
[145]In Gault, the Supreme Court ruled that a juvenile court judge may not elicit incriminating testimony from a minor without first advising him of his right not to testify. (387 U.S. at pp. 43-44, 49-50 [18 L.Ed.2d at pp. 554-556, 558-559].) The court’s rationale was explicit: “[Commitment] is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ And our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty . . . .” (Id., at p. 50 [18 L.Ed.2d at pp. 558-559], italics added; see also McCormick on Evidence (Cleary ed. 1972) § 121, p. 259.)
Thus, Gault teaches that the actual consequences, not the label, of a proceeding determine whether fundamental rights are constitutionally mandated in that proceeding. Three years after Gault, this lesson was reaffirmed when the Supreme Court held that juveniles in delinquency hearings are constitutionally entitled to be judged by the standard of proof beyond a reasonable doubt. (In re Winship, supra, 397 U.S. at p. 368 [25 L.Ed.2d at pp. 377-378].) “We made clear in [Gault] that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards . . . .” (Id., at pp. 365-366 [25 L.Ed.2d at p. 376].) The court decided that such safeguards were needed because an adverse determination could deprive a minor of both his liberty and his good name. (Id, at p. 367 [25 L.Ed.2d at p. 377].)
This court has also held that persons subject to involuntary commitment proceedings have a right to the protections afforded to ordinary criminal defendants. Thus, individuals whom the state seeks to confine as mentally disordered sex offenders (§ 6300 et seq.) or as narcotics addicts (§ 3000 et seq.) are constitutionally entitled to the safeguards of proof beyond a reasonable doubt and a unanimous jury verdict. (People v. Burnick (1975) 14 Cal.3d 306, 322 [121 Cal.Rptr. 488, 535 P.2d 352]; People v. Feagley (1975) 14 Cal.3d 338, 351-352 [121 Cal.Rptr. 509, 535 P.2d 373]; People v. Thomas (1977) 19 Cal.3d 630, 641, 644 [139 Cal.Rptr. 594, 566 P.2d 228].) These holdings flowed from the logic of Winship: the protections afforded to the usual criminal defendant were required in commitment proceedings because these defendants also stood to lose their liberty and their good names. (Burnick, supra, at pp. 318-322; Feagley, supra, atp. 347; Thomas, supra, atpp. 638-641, 644.)
The reasoning of Burnick, Feagley and Thomas applies equally to the present case because appellant faces equivalent consequences. Commitment to a mental hospital entails a “massive curtailment of liberty” and a comparable loss of reputation. (Humphrey v. Cady (1972) 405 U.S. 504, [146509] [31 L.Ed.2d 394, 402-403, 92 S.Ct. 1048]; In re Roger S. (1977) 19 Cal.3d 921, 928-929 [141 Cal.Rptr. 298, 569 P.2d 1286].) Indeed, the threat of losing one’s freedom is far more certain for individuals in appellant’s position than for the minors in Gault and Winship. A juvenile found to be a delinquent may or may not be committed to an institution. (§§ 727, 731.) In contrast, a dangerous mentally retarded person must be committed to a state hospital. (Maj. opn., ante, at p. 141.)2
Similarly, an adjudication that one is dangerous and mentally retarded creates a greater stigma than an adjudication of delinquency. As this court pointed out in Burnick, juvenile offenses are often discounted or forgiven as the product of a passing phase of youth. (14 Cal.3d at p. 322.) The same cannot be said for individuals found to be dangerous and mentally retarded. This court’s frank recognition in Burnick of the social disgrace that often attaches to mental illness is equally applicable to the mentally retarded. (Id., at p. 321.) When an official determination of dangerousness is added, “the shame is complete.” (Ibid.)
Thus, appellant faced the same consequences as those at stake in Burnick, Feagley and Thomas—incarceration and social stigma. The logic of those cases compels the conclusion that defendants in section 6500 proceedings are also entitled to the protections of criminal due process. The right not to testify is at least as fundamental a safeguard as proof beyond a reasonable doubt and a unanimous jury verdict. (Compare In re Gault, supra, 387 U.S. at pp. 43-50 [18 L.Ed.2d at pp. 554-559] with In re Winship, supra, 397 U.S. at p. 368 [25 L.Ed.2d at pp. 377-378] and McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545 [29 L.Ed.2d 647, 660-661, 91 S.Ct. 1976].) It follows that appellant should not have been called as a witness.
The majority’s analysis of the consequences to appellant of an adverse determination is wholly inadequate. The majority find it significant that confinement under section 6500.1 is only for one year. (Maj. opn., ante, at p. 137.) However, it would be startling to assert that defendants in misdemeanor cases may be compelled to testify because their potential incarceration is also “of limited duration,” in most cases a maximum of [147]only six months. (See Pen. Code, § 19.) In addition, the majority fail to properly emphasize that commitments under section 6500.1 may be renewed. Thus, to characterize the confinement as “of limited duration” ignores this court’s description of renewable commitments in an analogous context: “The theoretical maximum period of detention is life as successive petitions may be filed . . . .” (In re Gary W. (1971) 5 Cal.3d 296, 300 [96 Cal.Rptr. 1, 486 P.2d 1201], italics added.)
Further, the majority identify the aims of confinement in this case as treatment and protection, not punishment. (Maj. opn., ante, at p. 137.) However, benevolent objectives—which may or may not reflect reality in our state hospitals3—will not substitute for criminal safeguards in proceedings where liberty is at stake. (In re Winship, supra, 397 U.S. at p. 365 [25 L.Ed.2d at pp. 375-376]; In re Gault, supra, 387 U.S. at pp. 27-28 [18 L.Ed.2d at pp. 545-547].) The critical fact is the potential for involuntary confinement. It does not matter that the confinement “is designed not so much as retribution as it is to keep individuals from inflicting future harm.” (Specht v. Patterson (1967) 386 U.S. 605, 608-609 [18 L.Ed.2d 326, 329-330, 87 S.Ct. 1209]; see Note (1970) 83 Harv.L.Rev. 648, 663.)4
[148]The majority’s failure to confront the actual consequences of section 6500 proceedings is evident in their reliance on attorney discipline cases as authority for the unavailability of the “defendant’s privilege” here. (E.g., Black v. State Bar, supra, 7 Cal.3d 676.) In Black, this court carefully distinguished Gault. “Disciplinary proceedings, however, unlike juvenile proceedings, cannot result in incarceration . . . .” (Id., at p. 688, italics added.) In contrast, commitment proceedings do result in incarceration. (E.g., People v. Thomas, supra, 19 Cal.3d at p. 638.) Attorney discipline cases are not sound authority for the issue in this case.
The majority’s reliance on People v. Whelchel (1967) 255 Cal.App.2d 455, 460 [63 Cal.Rptr. 258], is equally unsatisfactory. In Whelchel, the Court of Appeal reasoned that proceedings to commit narcotics addicts are “civil in nature” and do not result in “penal” confinement. (Id, at pp. 460-461.) That analysis was categorically rejected by this court in Thomas. (19 Cal.3d at pp. 637-638.) The majority fail to explain the contradiction.
Instead, they summarily assert that application of the “defendant’s privilege” to commitment proceedings would contravene the language and purpose of the privilege. (Maj. opn., ante, at p. 138.) In support, the majority state that the traditional purpose of the right not to testify “has been to assure that the criminal justice system remains accusatorial. . . .” (Id. at p. 137, italics original.) That statement simply begs the question.
The values and policies underlying the guarantee against testimonial compulsion are as operative in a commitment proceeding as in an ordinary criminal prosecution.5 “Not only is the ‘public interest’ present and aligned against the subject, but it actively participates in the imposition of liability. This creates the veiy situation in which the privilege was designed to operate.” (McCormick on Evidence, supra, pp. 258-259.) It is curious that the court’s respect for “the inviolability of the human personality” is not offended by a proceeding in which the state is excused from having to produce the evidence against a retarded person by its own labors, and is allowed to employ “the cruel, simple expedient of compelling it from his own mouth.” (Miranda v. Arizona, supra, 384 U.S. at p. 460 [16 L.Ed.2d at p. 715].)
[149]The majority argue that it is permissible to compel evidence from appellant’s mouth for the “nontestimonial” purpose of showing his mental state, just as it is permissible to compel voice exemplars. This analogy fails.6 Today’s holding exposes defendants in section 6500 proceedings to potentially incriminating questions. When such questions arise, these defendants will be forced either to invoke their privilege against self-incrimination in front of the juiy which is judging them, or to make incriminating admissions, deliberately or unwittingly.
No one familiar with the popular meaning of the term “taking the Fifth” can doubt the prejudicial impact of the first alternative. No one familiar with the mentally retarded can doubt that the risk of inadvertent admissions is greater for them than for other defendants. Thus, today’s decision places persons subject to potentially lifelong commitment under section 6500 in a dilemma even more cruel than that in which we refuse to place mentally competent defendants in ordinary prosecutions for crime.7
There is no compelling reason to subject persons like appellant to the serious dilemma which the “defendant’s privilege” was meant to avoid. Requiring defendants to testify in these proceedings is unnecessary either to insure their treatment or to protect the public. To be committed under section 6500, a person must have been “mentally retarded from infancy or before reaching maturity . . . .” For persons who fit this description, there are sure to be numerous witnesses available to testify on the issue of retardation. Reliance on such witnesses is a perfectly sufficient and less intrusive means of fulfilling the statutory purposes.
Appellant should not have been compelled to be a witness against himself at a proceeding designed to deprive him of his freedom.
[150]III
While holding that appellant could not refuse to testify altogether, the majority recognize that he did have a right not to incriminate himself, once he was called as a witness. The trial judge violated this right by requiring appellant to answer all questions. Yet the majority dismiss this error, which led to appellant's dramatic and damaging testimony, as “harmless beyond a reasonable doubt.” I disagree.
The actual standard for measuring the harm caused by federal constitutional error is whether the benefiting party can show beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 23-24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal.Rptr. 163, 571 P.2d 620].) In Chapman, the Supreme Court expressed concern that in finding constitutional errors harmless, California courts might be giving too much emphasis to what they considered “overwhelming evidence” in support of the verdict. (386 U.S. at p. 23 [17 L.Ed.2d at p. 710].) The Supreme Court sought to correct this problem by focusing the inquiry on whether the error may have contributed to the verdict.
In the present case, respondent simply cannot establish beyond a reasonable doubt that the error in compelling appellant’s incriminating testimony did not contribute to his being found a dangerous mentally retarded person. It is difficult to imagine an error leading to more harmful testimony. The assaults which appellant said he had committed showed his dangerousness. His child-like dramatizations of those assaults, complete with sound effects, demonstrated his retardation. In effect, appellant was compelled to give testimony which proved both elements of the district attorney’s case. It simply cannot be said to a moral certainty that appellant’s performance did not contribute to the verdict against him.
I would reverse the judgment.
Unless otherwise specified, all statutory references hereinafter are to the Welfare and Institutions Code.
Today’s decision holds that under section 6509, a trial judge has no choice but to commit dangerous mentally retarded persons to state hospitals. This ruling is contrary to legislative intent. Section 6509 provides that the trial court “may” commit these persons to a state hospital. It is an extraordinary construction which transforms the permissive “may” into the mandatory “shall.” The fact that the commitment petition under section 6502 seeks placement in a state hospital does not justify the removal from the trial court of all discretion to order a more suitable disposition if one is available in a particular case.
“All too often the ‘promise of treatment has served only to bring an illusion of benevolence to what is essentially a warehousing operation for social misfits.’ [Citation.]’’ (United States ex rel. Stachulak v. Coughlin (7th Cir. 1975) 520 F.2d 931, 936; see also People v. Burnick, supra, 14 Cal.3d at pp. 319-320.)
In addition to the “limited duration” and “nonpunitive” nature of confinement under section 6509, the majority cite two other features as evidence of the noncriminal character of these proceedings for Fifth Amendment purposes. The majority emphasize that commitment is not necessarily related to criminal acts or initiated by a public prosecutor. In this case, commitment was in fact related to criminal acts and initiated by a prosecutor. Although the majority’s statement is theoretically accurate, it is not dispositive of appellant’s right not to testify. In Thurston v. Clark, supra, 107 Cal. 285, a private individual brought a statutory action to remove a public official from office. Under the statute, removal was not necessarily related to criminal acts, since neglect of duty (as well as ordinary criminal conduct) was actionable. (Id., at p. 287.) Yet neither of these features of the action deterred the court from holding that defendant Clark had been improperly required to be a witness in the removal action against him. Thus, the majority’s analysis of the “civil” nature of section 6500 proceedings, premised on four “civil” features of the action, fails on its own terms.
The majority also fail to emphasize that the state itself has recognized the serious consequences of these proceedings by affording indigent defendants a right to appointed counsel. (§ 6500.1.) Indigent civil defendants ordinarily have no such right. (Hunt v. Hackett (1973) 36 CaI.App.3d 134, 138 [111 Cal.Rptr. 456].) In addition, the trial court properly held that appellant was entitled to be proven dangerous and mentally retarded by proof beyond a reasonable doubt to the satisfaction of a unanimous jury. Finally, appellant received a free transcript on appeal, a right ordinarily reserved for criminal defendants. (See Gordiana v. Small Claims Court (1976) 59 Cal.App.3d 412, 424 [130 CaLRptr. 675].)
It is well known, after all, that some governments have resorted to civil commitment as a means of silencing individuals who dissent, in the same way the criminal justice system was used in Lilburne’s day to accomplish the same end. The Fifth Amendment is directly traceable to such abuses. (See generally, Levy, Origins of the Fifth Amendment (1971) ch. 9.)
I agree with the courts which have rejected the view that statements elicited from a defendant to determine his mental state are analogous to blood tests or voice identifications. (E.g., Commonwealth v. Pomponi (1971) 447 Pa. 154, 159 [284 A.2d 708, 710]; Lee v. County Court of Erie County (1970) 27 N.Y.2d 432, 439 [318 N.Y.S.2d 705, 267 N.E.2d 452,456].)
Further, today’s ruling creates a substantial risk that unreliable testimony will be placed before the jury. If the defendant is in fact retarded, he is unlikely to comprehend either the nature of the proceedings or the consequences to himself. Such a person lacks a self-protective sense that would keep him from exaggerating his actions in order to convey an image of being “tough.” Thus, in determining the defendant’s dangerousness, a jury might be easily misled by unsolicited statements made more out of false bravado than out of an obligation to tell the truth.
The present case illustrates the potential dangers since the jury may well have been influenced by appellant’s courtroom effort to demonstrate his prowess as a fighter.