People v. Cahill

5 Cal.4th 478 (1993)

853 P.2d 1037

20 Cal. Rptr.2d 582

THE PEOPLE, Plaintiff and Respondent,

v.

MARK STEVEN CAHILL, Defendant and Appellant.

Docket No. S020126.

Supreme Court of California.

June 28, 1993.

*481 COUNSEL

Janice M. Lagerlof, under appointment by the Supreme Court, for Defendant and Appellant.

Fern M. Laethem, State Public Defender, Robert D. Bacon, Deputy State Public Defender, Wilbur F. Littlefield, Public Defender (Los Angeles), Laurence M. Sarnoff and Douglas J. Goldstein, Deputy Public Defenders, and John M. Sink as Amici Curiae on behalf of Defendant and Appellant.

John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Arnold O. Overoye and Robert R. Anderson, Assistant Attorneys General, *482 W. Scott Thorpe, Edgar A. Kerry, and Shirley A. Nelson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GEORGE, J.

For a number of years, decisions of both the United States Supreme Court and this court have held that whenever a "coerced" or "involuntary" confession has been received in evidence at a criminal trial, "automatic reversal" of the conviction is required, without regard to the strength of the additional evidence received, unrelated to the confession, that tends to establish the defendant's guilt. (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 568 [ 2 L.Ed.2d 975, 981 , 78 S.Ct. 844 ]; People v. Berve (1958) 51 Cal.2d 286, 290 [ 332 P.2d 97 ]; People v. Trout (1960) 54 Cal.2d 576, 585 [ 6 Cal. Rptr. 795 , 354 P.2d 231 , 80 A.L.R.2d 1418 ].) (1)(See fn. 1.) In Arizona v. Fulminante (1991) 499 U.S. 279 [ 113 L.Ed.2d 302 , 111 S.Ct. 1246 ] (hereafter Fulminante ), however, a majority of the United States Supreme Court, in reconsidering the soundness of applying a reversible-per-se rule to the erroneous admission of an involuntary confession [1] as a matter of federal constitutional law, concluded that the prejudice caused by the erroneous admission of such a confession properly could and should be evaluated, for purposes of the federal Constitution, under the harmless-beyond-a-reasonable-doubt test (see Chapman v. California (1967) 386 U.S. 18, 23 [ 17 L.Ed.2d 705, 710 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]) that is applied to virtually all other types of federal constitutional "trial error." (See Fulminante, supra, 499 U.S. at pp. 306-312 [113 L.Ed.2d at pp. 329-333, 111 S.Ct. at pp. 1263-1266] [opn. of Rehnquist, C.J., speaking for a majority of the court on this issue].) Thus, under Fulminante , a state court, without violating the federal Constitution, now may affirm a conviction despite the erroneous admission of an involuntary confession, when the trial record establishes that the admission of the confession was harmless beyond a reasonable doubt. ( Ibid. )

In this case, we must determine whether, notwithstanding this recent change in federal law, California law compels the automatic reversal of a *483 conviction whenever an involuntary confession has been admitted at trial, or whether, under appropriate circumstances, such error may be considered harmless under state law.

I

At trial, a jury convicted defendant Mark Steven Cahill of numerous offenses, including one count of first degree murder (Pen. Code, §§ 187, 189), [2] one count of robbery (§ 211), one count of rape (§ 261, subd. (a)(2)), three counts of first degree burglary (§ 460, subd. (a)), one count of second degree burglary (§ 460, subd. (b)), and two counts of unlawful taking of a motor vehicle (Veh. Code, § 10851). In conjunction with the first degree murder conviction, the jury found true three special-circumstance allegations — robbery-murder (§ 190.2, subd. (a)(17)(i)), rape-murder (§ 190.2, subd. (a)(17)(iii)), and burglary-murder (§ 190.2, subd. (a)(17)(vii)) — and also found that defendant used a deadly weapon in the commission of the murder (§ 12022). At the conclusion of the guilt phase of the proceedings, the prosecution declined to seek the death penalty, and the trial court sentenced defendant to life imprisonment without possibility of parole, consecutive to an aggregate determinate sentence of 14 years.

On appeal, the Court of Appeal reversed all of the murder-related convictions, [3] while affirming the remaining convictions. In reaching its conclusion with regard to the murder-related offenses, the Court of Appeal determined that defendant's confession, obtained during questioning by the police shortly after defendant's arrest and received in evidence as part of the prosecution's case-in-chief, was involuntary or coerced. The Court of Appeal found in this regard that the confession had been elicited by the police through an implied promise of benefit or leniency, arising, in substantial part, from the interrogating officers' inaccurate and misleading statements concerning the legal definition of first degree murder, which omitted any reference to felony murder. [4]

After concluding that the confession was involuntary and thus should not have been admitted at trial, the Court of Appeal went on to hold that the *484 admission of the involuntary confession required automatic reversal of the murder-related convictions, without regard to the nature or strength of any other evidence, unrelated to the tainted confession, that had been introduced at trial. In support of this conclusion, the Court of Appeal, in its initial opinion, cited decisions of both this court ( People v. Jimenez (1978) 21 Cal.3d 595, 605 [ 147 Cal. Rptr. 172 , 580 P.2d 672 ]) and the United States Supreme Court ( Rose v. Clark (1986) 478 U.S. 570, 577 [ 92 L.Ed.2d 460, 470 , 106 S.Ct. 3101 ]).

The Attorney General, on behalf of the People, sought review, and, while the petition for review was pending, the United States Supreme Court rendered its decision in Fulminante, supra, 499 U.S. 279 . As noted, in Fulminante a majority of the United States Supreme Court overruled a line of that court's decisions that had applied a reversible-per-se or automatic-reversal rule to cases in which an involuntary confession had been admitted at trial, and concluded instead that the erroneous admission of an involuntary confession should be evaluated under the federal "harmless-beyond-a-reasonable-doubt" standard that, in a substantial number of recent United States Supreme Court decisions, had been held applicable to other constitutional "trial errors." (See id., 499 U.S. at pp. 306-314 [113 L.Ed.2d at pp. 329-334, 111 S.Ct. at pp. 1263-1266] (opn. of Rehnquist, C.J.).) After the Fulminante decision, we granted review and retransferred this matter to the Court of Appeal for reconsideration in light of Fulminante .

After reconsideration, the Court of Appeal reiterated its conclusion that, in view of the trial court's erroneous admission of an involuntary or coerced confession, automatic reversal of the murder-related convictions was required. From its reading of the relevant California precedents, the Court of Appeal concluded that the existing California rule, compelling automatic reversal of a conviction whenever an involuntary or coerced confession is improperly admitted at trial, was grounded on the independent provisions of the California Constitution and not solely on the federal constitutional decisions overruled in Fulminante . As a consequence, the Court of Appeal held it was compelled, under the governing California decisions interpreting and applying state law, to reverse the murder-related convictions without undertaking any harmless-error analysis.

Thereafter, we granted the People's subsequent petition for review, specifically limiting the issue to be argued before our court "to whether the state *485 Constitution compels automatic reversal where a trial court erroneously admits defendant's coerced confession."

II

At the outset, it may be helpful to clarify the issues that we shall not address in this opinion, in light of the contentions of the parties and the limiting order accompanying our grant of review.

First, we do not redetermine whether the circumstances under which defendant's confession was elicited rendered it involuntary or coerced under California law. Past cases establish that the category of involuntary or coerced confessions encompasses a wide range of circumstances and includes not only the most familiar example of confessions extracted from a suspect by means of actual or threatened physical violence or torture (see, e.g., People v. Jones (1944) 24 Cal.2d 601, 604-611 [ 150 P.2d 801 ]), but also confessions elicited by those psychological ploys and interrogation techniques whose use, although less egregious than the resort to physical violence or torture, nonetheless have been deemed to be inconsistent with a defendant's right to be free from compelled self-incrimination. (See, e.g., People v. Quinn (1964) 61 Cal.2d 551, 552-554 [ 39 Cal. Rptr. 393 , 393 P.2d 705 ], and cases cited.) The Court of Appeal concluded that the interrogation technique employed during the police questioning of defendant in this case rendered defendant's resulting confession "involuntary" under a long line of cases that have held confessions inadmissible when obtained as a result of express or implied promises, on the part of law enforcement officials, of "leniency" or "benefit" in the event the defendant confesses. (See, e.g., People v. McClary (1977) 20 Cal.3d 218, 227-230 [ 142 Cal. Rptr. 163 , 571 P.2d 620 ]; People v. Rogers (1943) 22 Cal.2d 787, 805-806 [ 141 P.2d 722 ]; People v. Barric (1874) 49 Cal. 342, 345 ; People v. Johnson (1871) 41 Cal. 452, 454-455 .) As our limiting order suggests, for purposes of our decision in this case we shall assume that the Court of Appeal was correct in finding defendant's confession involuntary.

Second, the Attorney General does not contend in this case that an involuntary or coerced confession is admissible in a criminal trial under current California law, but rather specifically acknowledges "California's strong, longstanding and absolute rule prohibiting the admission into evidence of a confession by a defendant which has been coerced by law enforcement." Accordingly, we have no occasion in this case to decide *486 whether the "Truth-in-Evidence" provision of Proposition 8 — article I, section 28, subdivision (d), of the California Constitution — has altered California law with regard to the inadmissibility of coerced confessions. [5] (Coerced confessions, of course, unquestionably remain inadmissible under federal constitutional principles.) We note, however, that unlike the exclusionary rule applied to evidence obtained as a result of an unconstitutional search or seizure — which in California traditionally has been viewed as a judicially created remedy for the violation of constitutionally protected privacy rights (see, e.g., People v. Cahan (1955) 44 Cal.2d 434, 439-451 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]; In re Lance W. (1985) 37 Cal.3d 873, 883-884, 887 [ 210 Cal. Rptr. 631 , 694 P.2d 744 ]) — the rule barring the admission of an involuntary confession long has been viewed by the California courts as part and parcel of the substance of the California constitutional privilege against self-incrimination (Cal. Const., art. I, § 15), which, by its terms, specifically provides that "[p]ersons may not ... be compelled in a criminal cause to be a witness against themselves...." (See, e.g, People v. Loper (1910) 159 Cal. 6, 18-20 [ 112 P. 720 ]. See also 1 LaFave, Search and Seizure (2d ed. 1987) § 1.1(a), p. 5 [" [U]nlike the self-incrimination protection in the Fifth Amendment, no mention is made [in the text of the Fourth Amendment] of barring from evidence the fruits of a violation of [its] proscription." (Italics added.].) Thus, although we do not decide the issue, because it has not been litigated in this case, there clearly is a plausible explanation for the Attorney General's decision to refrain from arguing that California law no longer bars the admission of a coerced confession in a criminal trial.

(2a) Accordingly, the sole issue we face is whether, under California law, the erroneous admission of a coerced confession in a criminal trial compels automatic reversal of a conviction on appeal, or whether, under some circumstances, a conviction properly may be upheld on appeal despite the erroneous admission of such a confession at trial.

III

As noted at the outset, this issue is of practical significance at this time because of the United States Supreme Court's recent decision in Fulminante, supra, 499 U.S. 279 . Prior to Fulminante , a series of decisions by that court — stretching over at least 25 years — had indicated that, under federal constitutional principles, the admission of a coerced confession in a state criminal trial never could be considered harmless error. (See, e.g., Chapman v. California, supra, 386 U.S. 18 , 23 & fn. 8 [ 17 L.Ed.2d 705, 710 ]; *487 Rose v. Clark, supra, 478 U.S. 570 , 577-578 & fn. 6 [ 92 L.Ed.2d 460, 470-471 ].) [6] In view of this line of authority, for the past quarter-century California courts have been compelled by federal constitutional principles automatically to reverse a criminal conviction whenever a coerced confession has been admitted at trial, and thus there has been no need, in recent years, to determine whether a similar result was compelled or authorized under California law.

As a result of the Fulminante decision, supra, 499 U.S. 279 , however, the governing federal constitutional rule now has changed. (3) In Fulminante , Chief Justice Rehnquist's opinion noted the numerous, recent federal Supreme Court decisions that have applied the federal constitutional harmless-error rule in a great variety of contexts ( id. at pp. 306-307 [113 L.Ed.2d at pp. 329-330, 111 S.Ct. at p. 1263 ] [citing 16 decisions]), and concluded that, as in those cases, the erroneous admission of a coerced confession properly should be treated as a "trial error," subject to the ordinary federal harmless-error test of Chapman v. California, supra, 386 U.S. 18 , rather than as a "structural defect" that affects the framework within which the trial proceeds, and that — as not properly subject to federal harmless-error analysis — is considered reversible per se. (499 U.S. at pp. 306-312 [113 L.Ed.2d at pp. 329-333, 111 S.Ct. at pp. 1263-1266].) Accordingly, under Fulminante , a state appellate court, without violating the federal Constitution, now may affirm a conviction despite the erroneous admission of a coerced confession, if the court determines that the admission of the confession was harmless beyond a reasonable doubt.

(2b) The question before us is whether California law, independent of federal constitutional requirements, compels the automatic reversal of a conviction whenever a coerced confession erroneously has been admitted at a criminal trial.

IV

In resolving the issue of the proper prejudicial error standard under California law, we begin with the governing California constitutional provision. Unlike the United States Constitution, which includes no provision *488 relating to reversible error, the California Constitution contains a specific provision addressed to this subject, article VI, section 13.

This constitutional provision states in full: "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."

Article VI, section 13, derives directly from former article VI, section 4 1/2 (hereafter, former section 4 1/2), a provision initially added to the California Constitution in 1911. [7] Shortly after the enactment of former section 4 1/2, the meaning and proper application of the provision were considered by this court in People v. O'Bryan (1913) 165 Cal. 55 [ 130 P. 1042 ]. Because of the significance of the O'Bryan decision, we review its facts and the analysis of the lead opinion in that case in some detail. [8]

The defendant in O'Bryan , a union member, had been charged with murdering a nonunion employee during a strike. At trial, O'Bryan testified in his own behalf, admitting firing the fatal shot but maintaining that he had intended only to frighten, not shoot, the victim. Both in its case-in-chief and in cross-examination of the defendant, the prosecution was permitted to introduce statements that O'Bryan had made to the grand jury shortly after his arrest. When taken before that body, O'Bryan was not represented by counsel and was not informed of his right to decline to be a witness against himself or that his statements might be used against him at trial. The jury convicted him of murder, and he appealed.

*489 On appeal, the lead opinion initially concluded that O'Bryan's testimony before the grand jury should not have been admitted at his trial because "[t]he 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.)" ( 165 Cal. at p. 61 .) The opinion explained: "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.)

After finding it was constitutional error to admit such statements — statements that "did not amount to a confession, but were admissible in evidence against the defendant as declarations against interest" ( 165 Cal. at p. 61 ) — the opinion went on to decide "whether the character and effect of the error were such as to require a reversal," noting that "[t]his question must be answered with due regard to the terms of section 4 1/2 of article VI, added to the constitution by amendment adopted in 1911." ( Id. at p. 63.)

In addressing this issue, the lead opinion in O'Bryan first described the background and purpose of the then-recently adopted constitutional provision. The opinion explained that even prior to the adoption of former section 4 1/2, appellate courts in California had recognized their authority to affirm a criminal conviction, despite the existence of error, when the error complained of was "trivial" or did not affect a "substantial right" of the defendant. ( 165 Cal. at p. 63 .) [9] When, however, the error was of a kind "which might or might not have turned the scale against the defendant" ( 165 Cal. at p. 64 ), depending upon the facts of the specific case, the appellate courts, prior to the adoption of former section 4 1/2, had interpreted the provisions of former article VI, section 4 (limiting the jurisdiction of appellate courts in criminal cases "to questions of law alone") as precluding "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." ( 165 Cal. at p. 64 .) The lead opinion in O'Bryan noted that this limitation on appellate courts had produced "[i]n not a few instances" unsatisfactory results that hampered the effective and prompt enforcement of *490 the criminal law, requiring the appellate courts "to grant new trials to defendants on account of technical errors or omissions, even though a review of the evidence ... would have shown that the guilt of the accused had been established beyond question and by means of a procedure which was substantially fair and just." ( Ibid. )

In light of this background, the lead opinion in O'Bryan found that "[t]he general purpose of the [proposal and enactment of former section 4 1/2] is plain" ( 165 Cal. at p. 63 ), namely, "to avoid the necessity for such [unsatisfactory] results.... By the new constitutional provision 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.'" ( Id. at p. 64, original italics.)

While acknowledging that the "miscarriage of justice" phrase "is a general one and has not as yet acquired a precise meaning" ( 165 Cal. at p. 64 ), the opinion declared that "[t]his much, however, we think may be safely said. Section 4 1/2 of article VI of our constitution 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." ( Id. at p. 65.)

At the same time, however, the lead opinion in O'Bryan made clear that, at least in some contexts, an error might result in a "miscarriage of justice" even when the defendant's guilt was apparent from a review of the evidence. The opinion explained in this regard: "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. For example, 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. Or, if a defendant, after having been once acquitted, should again be 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." (165 Cal. at pp. 65-66.)

Nonetheless, the opinion was careful to emphasize that "it does not follow that every invasion of even a constitutional right necessarily requires a *491 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." ( 165 Cal. at p. 66 .)

Finally, applying former section 4 1/2 to the facts of the O'Bryan case itself, the lead opinion concluded that despite the trial court's constitutional error in permitting the defendant's statements to the grand jury to be considered by the jury, the judgment should be affirmed. In reaching this conclusion, the court reviewed the evidence as a whole, finding that all the facts disclosed in the defendant's grand jury statements had been established at trial by other, admissible evidence. The court held that, under such circumstances, "we should certainly not be justified in forming or expressing the opinion that the admission of this testimony had resulted in a miscarriage of justice." ( 165 Cal. at p. 67 .)

(4) The seminal decision in O' Bryan, supra, 165 Cal. 55 , holds significance for the present case in a number of respects. First, O'Bryan made it clear that the California constitutional provision governing reversible error — now article VI, section 13 — applies to constitutional as well as to nonconstitutional errors. Second, O'Bryan also explained that although, as a general rule, the determination whether an error has resulted in a "miscarriage of justice" within the meaning of the constitutional provision will depend upon an appellate court's evaluation of the effect of the error in light of the evidence at trial, in some contexts — for example, the erroneous denial of a defendant's right to jury trial — an error may result in a miscarriage of justice, and require reversal, regardless of the strength of the evidence properly received at trial.

The Attorney General, while acknowledging the passage in O' Bryan, supra, 165 Cal. at pages 65-66, that indicates that some errors, like the denial of a jury trial, may result in a miscarriage of justice without regard to the state of the evidence introduced at trial, contends that this court's subsequent decision in People v. Watson, supra, 46 Cal.2d 818 , vitiated this aspect of the O'Bryan analysis by "crystallizing" the various definitions of the phrase "miscarriage of justice" into what generally is referred to as the "reasonable probability" test.

We believe this portion of the Attorney General's argument rests upon a misreading of the Watson decision. In Watson, this court reviewed and summarized the general principles relating to the constitutional harmless-error provision established in the O'Bryan decision. We then explained that *492 a number of decisions following O'Bryan — decisions that generally involved ordinary error and a need to evaluate the evidence in order to determine whether a miscarriage of justice had resulted — had employed varying language in attempting to articulate a general standard or test for determining when such an error, viewed in light of the evidence introduced at trial, would be serious enough to amount to a miscarriage of justice under the constitutional provision. In this regard, the court noted in Watson that several decisions had resorted to a double negative in formulating a test (stating, for example, that reversal would be required if the appellate court "is of the opinion that `a different result would not have been improbable had the error not occurred' ... or `if it cannot be said that, in the absence of the error complained of, a different verdict would have been improbable ...'"), whereas other decisions had utilized alternative, affirmative linguistic formulations (such as "that `it must affirmatively appear to the satisfaction of this court ... that the accused may well have been substantially injured by the error of which he complains' ... [or] that there should be no reversal where `it appears that a different verdict would not otherwise have been probable'"). (See 46 Cal.2d at p. 836 , citations omitted.)

(5) In order to eliminate the confusion wrought by this variety of differently worded tests, this court in Watson proceeded to articulate a single standard to be employed in this context, holding that "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 .) This, of course, is the familiar "reasonably probable" standard that represents the harmless-error test generally applicable under current California law.

In setting forth this statement of the "generally applicable" harmless error test, however, the Watson decision did not purport to overrule or disapprove that portion of the O'Bryan decision recognizing that with regard to some errors — such as a denial of the right to jury trial — a "miscarriage of justice" would result from the denial of the right itself, without regard to the state of the evidence. Indeed, the Watson decision, in restating the principles declared by the O'Bryan case, specifically recognized that under O'Bryan "certain fundamental rights ... 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 .) Nothing in the Watson decision suggests the court contemplated that its "reasonable probability" test should or would apply to this limited category of error.

*493 Furthermore, in the 37 years since Watson, supra, 46 Cal.2d 818 , California cases have continued to follow the latter aspect of O' Bryan, supra, 165 Cal. 55 , in a number of contexts, finding that certain errors, by their nature, result in a "miscarriage of justice" within the meaning of the California harmless-error provision requiring reversal without regard to the strength of the evidence received at trial. (See, e.g., People v. Douglas (1964) 61 Cal.2d 430, 436-439 [ 38 Cal. Rptr. 884 , 392 P.2d 964 ] [improper denial of right to separate counsel]; People v. Mroczko (1983) 35 Cal.3d 86, 104-105 [ 197 Cal. Rptr. 52 , 672 P.2d 835 ] [improper representation by counsel with potential conflict of interest]; People v. Holmes (1960) 54 Cal.2d 442 [ 5 Cal. Rptr. 871 , 353 P.2d 583 ] [ineffectual waiver of right to jury trial]; People v. Wheeler (1978) 22 Cal.3d 258, 283 [ 148 Cal. Rptr. 890 , 583 P.2d 748 ] [discrimination in selection of jury]. See generally 6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Reversible Error, §§ 3303-3311, pp. 4084-4095.) As these decisions demonstrate, just as the United States Supreme Court recognized in its recent Fulminante decision that certain federal constitutional errors representing "structural defects in the constitution of the trial mechanism" are not amenable to harmless error analysis ( Fulminante, supra, 499 U.S. 279, 309-310 [ 113 L.Ed.2d 302, 331-332 , 111 S.Ct. 1246, 1265 ] (opn. by Rehnquist, C.J.)), under the California constitutional harmless-error provision some errors similarly are not susceptible to the "ordinary" or "generally applicable" harmless-error analysis — i.e., the Watson "reasonably probable" standard — and may require reversal of the judgment notwithstanding the strength of the evidence contained in the record in a particular case.

(2c) Accordingly, the issue presented by this case is whether, under California law, the admission at trial of a coerced confession is the kind of error, such as the denial of a jury trial, that results in a "miscarriage of justice" under article VI, section 13, without regard to the nature and strength of the additional evidence presented at trial, or whether, like most trial errors (including constitutional errors), the question whether the erroneous admission of such a confession warrants reversal under article VI, section 13, properly must be determined with due regard to all of the evidence received at trial.

V

Defendant argues that, as an historical matter, coerced confessions always have been considered by the California cases as the type of error that is subject to a reversible-per-se rule. The Attorney General, however, challenges defendant's reading of the past California case law.

*494 A review of the relevant California decisions — i.e., those rendered since 1911 [10] — reveals that from the enactment of former section 4 1/2 in 1911 until the late 1950's, each of the California decisions that addressed the question whether a trial court had erred in admitting a coerced confession, or in instructing the jury with regard to the determination of the voluntariness of a confession, assessed the prejudicial effect of such potential error in light of all the evidence that had been introduced at trial, and did not hold or suggest that the erroneous admission or improper consideration of such a confession, in itself, automatically amounted to a "miscarriage of justice" under former section 4 1/2. (See, e.g., People v. Stroble (1951) 36 Cal.2d 615, 623-624, 631 [ 226 P.2d 330 ]; People v. Gonzales (1944) 24 Cal.2d 870, 877-878 [ 151 P.2d 251 ]; People v. Jones, supra, 24 Cal.2d 601, 604 ; People v. Rogers, supra, 22 Cal.2d 787, 803-807 ; People v. Ferdinand (1924) 194 Cal. 555, 565-570 [ 229 P. 341 ]; People v. Sourisseau (1944) 62 Cal. App.2d 917, 930-931 [ 145 P.2d 916 ]; People v. Mellus (1933) 134 Cal. App. 219, 220-226 [ 25 P.2d 237 ]; People v. Day (1932) 125 Cal. App. 106, 110-111 [ 13 P.2d 855 ]; People v. Dye (1931) 119 Cal. App. 262, 271-273 [ 6 P.2d 313 ]; People v. Reed (1924) 68 Cal. App. 19, 20 [ 228 P. 361 ].)

Beginning in the late 1950's, however, California decisions took a different view of the matter and, thereafter, a host of cases from this court consistently declared that whenever a coerced confession had been admitted in a criminal trial, reversal of the conviction was required without regard to the strength of the other evidence revealed by the record. (See, e.g., People v. Berve, supra, 51 Cal.2d 286, 290 ; People v. Trout, supra, 54 Cal.2d 576, 585 ; People v. Brommel (1961) 56 Cal.2d 629, 634 [ 15 Cal. Rptr. 909 , 364 P.2d 845 ]; People v. Matteson (1964) 61 Cal.2d 466, 469-470 [ 39 Cal. Rptr. 1 , 393 P.2d 161 ]; People v. Dorado (1965) 62 Cal.2d 338, 356-357 [ 42 Cal. Rptr. 169 , 398 P.2d 361 ]; People v. Schader (1965) 62 Cal.2d 716, 728-731 [ 44 Cal. Rptr. 193 , 401 P.2d 665 ]; People v. Sears (1965) 62 Cal.2d 737, 743 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]; People v. Fioritto (1968) 68 Cal.2d 714, 720 [ 68 Cal. Rptr. 817 , 441 P.2d 625 ]; People v. Randall (1970) 1 Cal.3d 948, 958 [ 83 Cal. Rptr. 658 , 464 P.2d 114 ]; People v. McClary, supra, 20 Cal.3d 218, 230 ; People v. Jimenez, supra, 21 Cal.3d 595, 605-606 .) The court's statement in Matteson of the applicable legal rule is typical of this line of cases: "In cases involving involuntary statements of the accused ... the weight of other evidence of guilt is not considered. *495 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." ( People v. Matteson, supra, 61 Cal.2d at p. 470.)

The Attorney General, although acknowledging the body of California case law set forth in the preceding paragraph, contends that the reversible-per-se rule embodied in these numerous California decisions did not emanate from the application of an independent, California standard for coerced confessions, but instead simply reflected the California courts' application of a federal reversible-per-se standard, consistent with the prejudicial error analysis applied by the United States Supreme Court in a number of its prior decisions. In advancing this claim, the Attorney General relies, in part, upon a passage contained in a footnote in one of our recent decisions, suggesting that the California reversible-per-se rule for confessions was "never expressly divorced from federal law." ( People v. Boyer (1989) 48 Cal.3d 247, 279-280, fn. 23 [ 256 Cal. Rptr. 96 , 768 P.2d 610 ].) Based upon this premise — i.e., that the California reversible-per-se rule always has been inextricably linked to federal law — the Attorney General maintains that now that the Fulminante decision has modified the governing federal prejudicial-error standard applicable to coerced confessions, it follows that the California reversible-per-se rule no longer is viable. Defendant contends, by contrast, that the prior California cases embody a California prejudicial error rule that was based upon state, rather than federal, law.

Upon a close review of the California cases in question, we conclude that although the decisions consistently cited both state and federal authorities, [11] and occasionally included language suggesting that the reversible-per-se rule *496 was applicable only by virtue of federal law, [12] the decisions reveal that, at least by the mid-1960's, this court had adopted the position that a reversible-per-se rule applied to the erroneous admission of confessions as a matter of state law, independent of any federal compulsion.

The analysis in People v. Schader, supra, 62 Cal.2d 716, 728-731 , illustrates the point. In Schader , after concluding that a confession that was admitted at trial should have been excluded because it had been obtained in violation of the defendant's right to counsel, the court observed: "Once we have determined that an admission of an incriminating statement constitutes error, we must decide whether or not the error caused prejudice to defendant under article VI, section 4 1/2 of the Constitution. (See People v. Watson (1956) 46 Cal.2d 818, 836-837 [ 299 P.2d 243 ].) The statements involved in the instant case, however, are confessions to murder in the first degree under the felony murder rule [citation] and to robbery in the first degree [citations] and we have held that the erroneous admission of a confession is prejudicial per se and therefore compels reversal. [Citing seven California decisions without specifying whether their holdings were premised upon federal or state law.]" ( Schader, supra, at pp. 728-729 , italics added.)

Although the Schader court thereafter noted the then-applicable United States Supreme Court decisions holding that "the introduction of an involuntary confession automatically requires reversal" (62 Cal.2d at p. 729, italics added), the Schader court went on to hold that automatic reversal was required under the California prejudicial-error rule whenever an illegally obtained confession was admitted into evidence, regardless whether the confession was "voluntary" or "involuntary. " The Schader court explained its conclusion as follows: "In determining the prejudicial effect of the illegally obtained confession at trial we are not concerned with the nature of the error that caused the illegality. The reason that the confession should not have been introduced into evidence is no longer material. As to its impact upon the jury and the prejudicial effect, the confession obtained in violation of defendant's right to counsel cannot be distinguished from the confession obtained in violation of defendant's right to be free of coercion. [¶] In this inquiry we cannot logically distinguish between the different bases for the exclusion of the confession.... After holding that the confession should not have been admitted, we can only be concerned with the effect of the confession upon the jury's deliberation, regardless of the type of error *497 involved. It is because of the effect of the confession that reversal is compelled. [¶] ... In either case [i.e., whether the confession is "voluntary" or "involuntary"] the confession operates as a kind of evidentiary bombshell which shatters the defense." ( Id. at pp. 729-731.)

Thus, although the Schader court drew upon analogous federal decisions for support, the court's holding in Schader went beyond the then-existing federal authority in applying a reversible-per-se rule to confessions that were not involuntary but were inadmissible because obtained, for example, in violation of the precepts of the Massiah or Escobedo decisions (see Massiah v. United States (1964) 377 U.S. 201 [ 12 L.Ed.2d 246 , 84 S.Ct. 1199 ]; Escobedo v. Illinois (1964) 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ]). Schader appears clearly to have been based upon the view that the erroneous admission of any confession was prejudicial per se as a matter of California law. And, as the language and reasoning of the Schader opinion demonstrate, the decision clearly indicated that this reversible-per-se rule of state law was applicable to involuntary confessions.

In the subsequent decision in People v. Jacobson (1965) 63 Cal.2d 319, 329-331 [ 46 Cal. Rptr. 515 , 405 P.2d 555 ], this court explicitly reconfirmed the independent state basis of the general reversible-per-se rule applied by the California decisions of that period. The question presented in Jacobson was whether the reversible-per-se rule should be applied when, although two confessions of the defendant obtained in violation of his right to counsel had been introduced at trial, eight valid confessions, obtained from the defendant prior to the invalid confessions and thus untainted by those confessions, also had been introduced at trial and had disclosed all of the material facts contained in the invalid confessions.

In analyzing the issue, the court in Jacobson explained that two distinct reasons had been advanced in support of the application of a reversible-per-se rule to invalidly obtained confessions. "One view holds that when a confession is obtained by methods which violate constitutional rights, law enforcement officials must suffer the penalty of reversal if such a confession is used at trial. This harsh result, contend the advocates of this view, is the only means by which illegal police activity can be successfully checked. The United States Supreme Court has expressed this view in exercising its supervisory power over the administration of criminal justice in the federal courts. [Citation.]" (63 Cal.2d at pp. 329-330, italics added.)

The Jacobson court continued: " In California, however, we have taken a somewhat different view, while recognizing the beneficial effect that results when police investigations are conducted within the constitutional framework. This court has been more concerned with the fairness of the trial, and *498 we are of the opinion that `courts cannot inquire into the prejudicial nature of the introduction of an illegally obtained confession for the reasons stated in People v. Parham (1963) 60 Cal.2d 378, 385 [ 33 Cal. Rptr. 497 , 384 P.2d 1001 ]: " 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. [Citation omitted.] 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."' [Citation.]" ( 63 Cal.2d at p. 330 , italics added.)

Because the California reversible-per-se rule applicable to confessions was premised upon the significant role that the introduction of a defendant's confession was presumed to play in any criminal trial, the court in Jacobson concluded that in the unusual factual setting presented by that case, involving eight valid and two invalid confessions, "a refusal to inquire into the impact, if any, of the confession on the verdict would result in complete abandonment of article VI, section 4 1/2 of the California Constitution." ( 63 Cal.2d at p. 330 .) After reviewing the contents of the confessions and determining that "[t]he two improperly obtained statements were ... merely cumulative," the court concluded: "It is not plausible, having reviewed this record, to conclude that 10 statements were sufficiently more persuasive than only eight and that the elimination of two would have altered the outcome." ( Id. at p. 331.) On this basis, the court ultimately determined that the error in admitting the confessions did not warrant reversal under article VI, section 4 1/2, of the California Constitution.

The Jacobson decision is significant in a number of respects in our evaluation of the issue presently before us. As we shall discuss below, the opinion in Jacobson not only provides a clear explanation of the rationale underlying the California courts' application of a reversible-per-se rule to erroneously admitted confessions, but at the same time reveals a telling flaw in that rationale. For present purposes, however, the Jacobson opinion is instructive in demonstrating rather clearly that, at least by 1965, the reversible-per-se rule applied by California decisions to improperly admitted confessions represented an application of state law under the pertinent state constitutional prejudicial-error provision, rather than simply an application of federal law.

As a jurisprudential matter, it is not surprising to find that the California decisions of that time, such as Schader, supra, 62 Cal.2d 716 , and Jacobson, supra, 63 Cal.2d 319 , relied upon state law, and not solely upon federal law, in determining whether an error committed at trial, even an error of federal *499 constitutional magnitude, warranted reversal of a state court judgment. Although numerous federal decisions previously had held that the admission of an involuntary confession was reversible per se, prior to the United States Supreme Court's 1967 decision in Chapman v. California, supra, 386 U.S. 18 , the federal high court never had held that state courts were compelled, by virtue of the federal Constitution, to apply a general, federal harmless-error standard in evaluating whether a federal constitutional error that occurred in a state trial required reversal of the conviction. As Justice Harlan's dissenting opinion in Chapman makes clear, the majority opinion in Chapman broke new ground in adopting a general, federal constitutional harmless-error standard in that case. ( Id. at pp. 46-51 [17 L.Ed.2d at pp. 723-726].) Justice Harlan's dissent in Chapman also reveals that, prior to Chapman, California courts regularly applied the California prejudicial-error standard prescribed by the state Constitution to other types of federal constitutional error occurring in California trials. ( Id. at pp. 51-53 [17 L.Ed.2d at pp. 725-727]; see also People v. Bostick (1965) 62 Cal.2d 820, 823-827 [ 44 Cal. Rptr. 649 , 402 P.2d 529 ].)

Accordingly, in light of the specific language of the California cases decided in the 1960's, and the then-prevailing understanding of the reach of state prejudicial-error principles, we determine it was as a matter of state law that the California decisions in question characterized as reversible per se the erroneous receipt in evidence of a confession. (See also People v. Powell (1967) 67 Cal.2d 32, 56 [ 59 Cal. Rptr. 817 , 429 P.2d 137 ] ["[S]ince the decision in Chapman v. California (1967) supra, 386 U.S. 18, 23 [ 17 L.Ed.2d 705, 710 ], our inquiry may not be limited to that consideration [i.e., the strength of the admissible evidence of defendant's guilt] when a federal constitutional error is in issue, and we may no longer rely on article VI, section 13 of our Constitution to save a judgment infected with such an error."].)

VI

(6) The Attorney General argues, however, that even if past California decisions (at least those rendered since the mid-1960's) applied a reversible-per-se rule to confessions as a matter of state law, the Truth-in-Evidence provision of Proposition 8 (Cal. Const., art, I, § 28, subd. (d)), enacted in 1982, mandates application of federal rather than state law, insofar as state law now imposes a more stringent test of prejudicial error than that embodied in federal law under Fulminante, supra, 499 U.S. 279 . In support of this argument, the Attorney General relies upon this court's decisions in People v. May (1988) 44 Cal.3d 309 [ 243 Cal. Rptr. 369 , 748 P.2d 307 ] and People v. Markham (1989) 49 Cal.3d 63 [ 260 Cal. Rptr. 273 , 775 P.2d 1042 ], *500 which held that more stringent, judicially created state rules, relating to the admission of statements allegedly obtained in violation of the privilege against self-incrimination, have been abrogated by Proposition 8.

The provision of Proposition 8 in question, however, does not support the Attorney General's argument. By its terms, the Truth-in-Evidence provision affects only the admissibility of evidence, [13] largely eliminating state law rules that restricted the admissibility of relevant evidence more narrowly than was required by the federal Constitution. (See, e.g., In re Lance W., supra, 37 Cal.3d 873, 884-890 ; People v. Wheeler (1992) 4 Cal.4th 284, 290-295 [ 14 Cal. Rptr.2d 418 , 841 P.2d 938 ].) There is nothing in the Truth-in-Evidence provision that purports to affect the standard for determining the prejudicial effect, under state law, of the introduction at trial of evidence that remains inadmissible under California law. (See, e.g., People v. Porter (1990) 221 Cal. App.3d 1213, 1222 [ 270 Cal. Rptr. 773 ].) As noted at the outset of this opinion (see, ante, pp. 485-486), the Attorney General has not argued that Proposition 8 renders coerced confessions admissible under California law, and we conclude that the provisions of that initiative measure have no direct application to the issues presented by this case.

VII

Although we have determined that the reversible-per-se rule applied by a substantial number of California decisions in the 1960's to the erroneous admission of confessions was grounded in state law, and that this state prejudicial-error rule has not been abrogated by the Truth-in-Evidence provision of Proposition 8, these conclusions are not dispositive of the issue before us. Even though it follows, from the foregoing determinations, that the United States Supreme Court's recent decision in Fulminante, supra, 499 U.S. 279 , does not, of its own force, modify the existing California rule requiring automatic reversal of a conviction based upon proceedings in which a confession erroneously has been received, the Fulminante decision does provide us with an appropriate opportunity to reconsider the validity of the reversible-per-se rule as a matter of California law. Although, as we have seen, the past California decisions applied a rule of automatic reversal as a matter of state law, those California decisions did not adopt such a state rule in the face of a contrary federal harmless error rule, but rather embraced that rule on the understanding that such a rule was consistent with the governing federal rule. (2d) Now that the federal high court has established *501 in Fulminante that a rule of automatic reversal is not compelled by the federal Constitution, we consider it appropriate to reconsider whether such automatic reversal is mandated under the state Constitution.

As we have discussed above, the California Constitution, unlike its federal counterpart, contains an explicit provision that directly addresses the issue of reversible error — a section added by the electorate of this state for the specific purpose of abrogating the preexisting rule that had treated any substantial error as reversible per se. In its current form, the provision reads in pertinent part: "No judgment shall be set aside, ... in any cause, on the ground ... of the improper admission or rejection of evidence, ... 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." (Cal. Const., art. VI, § 13.) On its face, this language would appear to apply as fully to the improper admission of an involuntary confession as to the improper admission of any other type of evidence, and to require that, in determining whether a judgment should be set aside because of such an improper admission of evidence, a court examine all of the evidence received at trial in order to ascertain whether the error resulted in a miscarriage of justice. Because, as we have seen, it has been clear from the time of its enactment that the California reversible-error provision applies to constitutional as well as to nonconstitutional errors (see People v. O' Bryan, supra, 165 Cal. 55, 66 ), the language and background of the applicable state constitutional provision do not appear to support a rule that treats the improper admission of an involuntary confession (uniquely, among evidentiary errors) as reversible per se.

Of course, as the O'Bryan decision recognized, in some instances an error may result in a "miscarriage of justice" within the meaning of the California provision without regard to the strength of the evidence presented at trial, because, as the court explained in O'Bryan , "[w]hen 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." ( 165 Cal. at p. 65 , italics added.) But the kinds of errors that, regardless of the evidence, may result in a "miscarriage of justice" because they operate to deny a criminal defendant the constitutionally required "orderly legal procedure" (or, in other words, a fair trial) — for example, the denial of the defendant's right to a jury trial or to an impartial trial judge (see, e.g., People v. Mahoney (1927) 201 Cal. 618, 626-627 [ 258 P. 607 ]) — all involve fundamental "structural defects" in the judicial proceedings, analogous to those to *502 which the United States Supreme Court referred in its Fulminante decision ( Fulminante, supra, 499 U.S. 279, 309-310 [ 113 L.Ed.2d 302, 331-332 , 111 S.Ct. 1246, 1265 ]), rather than the improper admission of a particular item of evidence.

As Chief Justice Rehnquist explained in Fulminante , in contrast to fundamental "structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards" ( 499 U.S. at p. 309 [113 L.Ed.2d at pp. 331-332, 111 S.Ct. at p. 1265 ]), the improper admission of an involuntary confession is a type of "trial error" — that is, "[an] error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was [prejudicial or harmless]." ( Id. at pp. 307-308 [ 113 L.Ed.2d at p. 330 , 111 S.Ct. at p. 1264 ].) As we have seen, the California reversible-error provision, by its terms, directs that the prejudicial nature of such an evidentiary error be determined "after an examination of the entire cause, including the evidence." (Cal. Const., art. VI, § 13.)

As discussed above, for more than 40 years after the adoption in 1911 of the California constitutional reversible-error provision, California courts applied ordinary prejudicial-error analysis in determining whether the admission of an involuntary confession in a criminal trial warranted reversal of the judgment. (See, ante, pp. 493-494.) [14] It was only in the late 1950's that California decisions began to hold that the erroneous admission of an involuntary confession was reversible per se. (See, ante, pp. 494-495.)

In explaining the basis for their application of a reversible-per-se rule in this context, the California decisions of the 1950's and 1960's did not suggest that the erroneous admission of a confession constituted a structural defect in the trial proceedings that deprived the defendant of the "orderly legal process" constituting a fair trial. Instead, the decisions reasoned that a rule of automatic reversal was justified in light of the significant role a defendant's confession "almost invariably" plays in any criminal trial in which it is introduced. Thus, as we have seen, the Jacobson decision, supra, 63 Cal.2d 319 , in explaining the differences between the rationales offered by the federal and California courts for the adoption of a reversible-per-se rule with regard to improperly admitted confessions, observed that the *503 California decisions rested upon the proposition that "`courts cannot inquire into the prejudicial nature of the introduction of an illegally obtained confession for the reasons stated in People v. Parham (1963) 60 Cal.2d 378, 385 [ 33 Cal. Rptr. 497 , 384 P.2d 1001 ]: "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. [Citation omitted.] 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."' [Citation.]" ( 63 Cal.2d at p. 330 .) And the Schader decision, supra, 62 Cal.2d 716 , relied upon that same rationale in concluding that the California reversible-per-se rule applied whenever a confession erroneously was received at trial, without regard to whether the confession was "voluntary" or "involuntary," or whether it had been elicited in violation of the right to counsel or the privilege against self-incrimination, or was inadmissible for some other reason. Schader explained that, in any event, "the confession operates as a kind of evidentiary bombshell which shatters the defense." (62 Cal.2d at p. 731. See also People v. Quicke (1969) 71 Cal.2d 502, 516 [ 78 Cal. Rptr. 683 , 455 P.2d 787 ].)

In relying upon this rationale as a basis for embracing a rule of automatic reversal whenever a confession is improperly admitted at trial, however, the California decisions in question lost sight of the principal purpose and significance of the 1911 enactment of California's constitutional provision explicitly addressing the matter of reversible error. The recognition that confessions, "as a class," "[a]lmost invariably" will provide persuasive evidence of a defendant's guilt ( People v. Parham, supra, 60 Cal.2d 378, 385 ), and that such confessions often operate "as a kind of evidentiary bombshell which shatters the defense" ( People v. Schader, supra, 62 Cal.2d 716, 731 ), simply means that the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial under the traditional harmless-error standard. But, although the improper admission of a confession is likely to be prejudicial in many cases, that consequence does not, in our view, justify the judicial adoption of a state-law rule that automatically and monolithically treats all improperly admitted confessions as requiring reversal of the defendant's conviction; the California constitutional reversible-error provision was adopted for the specific purpose of eliminating just such a prophylactic approach to reversible error. [15]

Indeed, although this court's 1965 decision in People v. Jacobson, supra, 63 Cal.2d 319 , did not purport to question or modify the general reversible-per-se rule applicable to confessions, the reasoning and holding of Jacobson *504 in fact reveals that the reversible-per-se rule is basically incompatible with the precepts of the California constitutional provision that addresses the matter of reversible error. In Jacobson , the court initially noted that the cases that had adopted the reversible-per-se rule had reasoned that the considerations that (1) a confession will "`[a]lmost invariably ... constitute persuasive evidence of guilt, and [(2)] it is usually extremely difficult to determine what part [the confession] played in securing the conviction[,] ... 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.' [Citation]." ( Id. at p. 330.) The court then went on to declare: "Nevertheless, on this record we do have a `rare case' in which a refusal to inquire into the impact, if any, of the confession on the verdict would result in complete abandonment of article VI, section 4 1/2, of the California Constitution. " ( Ibid., italics added.) Because the two invalidly obtained confessions that erroneously had been admitted in Jacobson simply were cumulative of the eight valid confessions that also had been introduced at trial, the court in Jacobson concluded it was not plausible to suggest that the exclusion of the invalid confessions would have altered the outcome in that case, and, on that basis, held that reversal was not warranted under former article VI, section 4 1/2. Jacobson 's reasoning and holding in this regard were followed shortly thereafter in People v. Cotter (1965) 63 Cal.2d 386, 398 [ 46 Cal. Rptr. 622 , 405 P.2d 862 ]. (See also People v. Quicke, supra, 71 Cal.2d 502, 516-518 [applying Jacobson ].) [16]

*505 As noted, the Jacobson decision ( supra, 63 Cal.2d 319 ) did not purport to question the continued viability of the general reversible-per-se rule applicable to confessions, but simply established an exception to that general rule permitting an appellate court to review the entire trial record in order to determine the prejudicial effect of an erroneously admitted confession when valid as well as invalid confessions had been received at trial. The reasoning underlying the Jacobson decision, however, logically cannot be confined to the multiple-confession setting. Although the multiple-confession scenario provides one of the clearest examples of an instance in which it is possible for an appellate court to determine that an erroneously admitted confession did not affect the outcome of the trial, other examples are not difficult to imagine.

The erroneous admission of an involuntary confession properly might be found harmless, for example, (1) when the defendant was apprehended by the police in the course of committing the crime, (2) when there are numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence, or (3) in a case in which the prosecution introduced, in addition to the confession, a videotape of the commission of the crime (cf. Fulminante, supra, 499 U.S. 279, 312-314 [ 113 L.Ed.2d 302, 333-334 , 111 S.Ct. 1246, 1266-1267 ] (conc. opn. by Kennedy, J.)). As these examples suggest, although in some cases a defendant's confession will be the centerpiece of the prosecution's case in support of a conviction, in many instances it will be possible for an appellate court to determine with confidence that there is no reasonable probability that the exclusion of the confession would have affected the result. We believe that in such cases, as in the multiple-confession setting involved in Jacobson , "a refusal to inquire into the impact, if any, of the confession on the verdict would result in complete abandonment of article VI, [section 13], of the California Constitution." ( People v. Jacobson, supra, 63 Cal.2d 319, 330 .)

(7) Defendant argues, however, that even if it is possible to determine in a particular case that the erroneous admission of an involuntary confession *506 did not affect the verdict, the admission of such a confession at trial nonetheless should be viewed as a "miscarriage of justice" warranting automatic reversal under article VI, section 13, in light of the egregious nature of the official misconduct involved in eliciting such a confession. Defendant maintains that abandonment of a reversible-per-se rule in this context would represent a retreat from this state's long-standing condemnation of such improper practices.

We believe defendant's argument suffers from two basic flaws. First, as explained at the outset of this opinion, the category of "involuntary confessions" encompasses a broad spectrum of circumstances, ranging from confessions elicited by violence or threats of violence to the much more common situation in which a confession is obtained as a result of an improper promise of benefit or leniency. Although in all such cases the law enforcement conduct in question is unconstitutional and renders any resulting statement inadmissible at trial, from a realistic perspective the official misconduct involved in obtaining an "involuntary" or "coerced" confession frequently is no more egregious (or even less egregious) than that involved in obtaining evidence by means of unreasonable searches or seizures or other constitutional violations — violations that have not been viewed as requiring the automatic reversal of any conviction based upon proceedings in which the fruit of the constitutional transgression has been received. (See, e.g., People v. Parham, supra, 60 Cal.2d 378, 384-386 [physical evidence unlawfully seized from defendant by use of force].) Furthermore, the category of involuntary confessions with which we are here concerned is, by definition, limited to those confessions that a trial court has found are voluntary and, on that basis, has admitted into evidence. Although the question of prejudice arises, of course, only when an appellate court subsequently holds that the trial court erred in its determination of voluntariness, in most instances the confessions at issue are likely to fall close to the dividing line between voluntary and involuntary confessions. In cases involving the most egregious police conduct, it is likely the confessions either will not be offered into evidence or will be excluded by the trial court.

Second, as we also have seen, the Jacobson decision makes it clear that, unlike the former federal automatic-reversal rule that was believed justified as a necessary means of deterring illegal police conduct, the California reversible-per-se rule never was grounded on a deterrence rationale. ( People v. Jacobson, supra, 63 Cal.2d 319, 329-330 .) Indeed, this court's seminal decision in People v. O' Bryan, supra, 165 Cal. 55 , demonstrates that point quite clearly. As noted previously, the court in O'Bryan , although finding that the defendant's statements before the grand jury erroneously had been admitted at his trial (because the statements were not "voluntary," having *507 been elicited in violation of the defendant's privilege against self-incrimination), did not conclude that automatic reversal was required — or even authorized — under the California reversible-error provision in order to deter such improper law enforcement conduct in the future. Instead, the court in O'Bryan examined the improperly admitted statements in the context of the entire trial record and, on that basis, concluded that the constitutional error was not prejudicial and did not warrant reversal.

The point is further demonstrated by the line of California decisions holding that the introduction of an involuntary admission (as distinguished from a confession ) is not reversible per se, no matter how flagrant the misconduct in obtaining the admission, but rather is subject to ordinary harmless-error analysis. (See, e.g., People v. Hillery (1965) 62 Cal.2d 692, 712 [ 44 Cal. Rptr. 30 , 401 P.2d 382 ].) Were automatic reversal justified under the California Constitution as a means of deterring coercive police conduct, a reversible-per-se rule logically would apply to the introduction of an unconstitutionally elicited admission as well as to the introduction of an involuntary confession. Accordingly, it is clear that, under established California principles, a reversible-per-se rule is not justified on a deterrence rationale. (See also People v. Stroble, supra, 36 Cal.2d 615, 617-618 .)

Defendant further suggests that a rule requiring automatic reversal is warranted in the case of coerced or involuntary confessions, as distinguished from other categories of inadmissible evidence, because of the unreliability of such confessions. It is now well established, however, that a confession properly may be classified as an involuntary or coerced confession without regard to its reliability (see, e.g., People v. Ditson (1962) 57 Cal.2d 415, 437-439 [ 20 Cal. Rptr. 165 , 369 P.2d 714 ]), and in many instances there may be corroborating evidence that demonstrates that such a confession, although inadmissible because obtained by unconstitutional means, is in fact reliable. Furthermore, even though in numerous circumstances there may be good reason to question the reliability of a confession improperly obtained by police coercion (see, e.g., People v. Hogan (1982) 31 Cal.3d 815, 834-844 [ 183 Cal. Rptr. 817 , 647 P.2d 93 ]), a defendant may, of course, rely upon the evidence of such coercion to challenge the truth of the confession at trial, and an appellate court, in determining whether the erroneous admission of a confession warrants reversal, can and will take into account the circumstances leading to the confession and the risk that the confession may be unreliable, as it examines the entire record under a traditional prejudicial-error analysis. Accordingly, the potential unreliability of an involuntary confession does not support the application of a reversible-per-se rule under the California Constitution.

*508 Finally, defendant argues that even if this court now is of the view that application of a reversible-per-se rule to the admission of coerced confessions is not warranted under article VI, section 13, of the California Constitution, such a rule nonetheless should be retained as a matter of stare decisis. Emphasizing that such a rule has been applied in numerous California decisions for the past 35 years, defendant argues that there is no reason to alter the rule at the present time.

For a number of reasons, we do not believe that principles of stare decisis should be conclusive as to the issue at hand. First, although the reversible-per-se rule has been applied in California decisions since 1958, for virtually all of the period in question — until the United States Supreme Court's 1991 decision in Fulminante, supra, 499 U.S. 279 — a reversible-per-se rule applicable to coerced confessions was understood to be mandated by the federal Constitution, and during that time there has been no reason for our court to scrutinize closely the validity of the rule as a matter of state law.

Second, as we have seen, for the major portion of the period following California's adoption of the constitutional reversible-error provision in 1911 — i.e., from 1911 until 1958 — California decisions applied the ordinary prejudicial-error analysis mandated by that provision to the erroneous admission of coerced confessions. In adopting and applying a different state rule beginning in the late 1950's and mid-1960's, the California decisions did not discuss the prior California case law or attempt to explain how a rule requiring automatic reversal for such error was compatible with the purpose of the applicable state constitutional provision.

Third, as we also have explained, the 1965 decision in Jacobson ( People v. Jacobson, supra, 63 Cal.2d 319 ), in fashioning an exception to the reversible-per-se rule for cases involving multiple confessions, implicitly revealed the fundamental incompatibility of a reversible-per-se rule with the basic premise of the governing state constitutional provision. The existence and rationale of the long-standing Jacobson exception diminishes the force of defendant's stare decisis claim.

Finally, we believe that retention of a reversible-per-se rule, solely on the basis of stare decisis, would fail to give proper recognition to the important public policies underlying the reversible error provision set forth in California's Constitution — policies that remain of vital significance today. As the proponents of the 1911 measure recognized, an overly broad rule of reversible error that compels the reversal of judgments rendered in fairly tried criminal proceedings on the basis of errors that are unlikely to have affected *509 the outcome, often will have the detrimental effect of eroding the public's confidence in the criminal justice system. (See Proposed Amends. to the Const. of the State of Cal. with Legis. Reasons for and Against the Adoption Thereof (Special Statewide Elec. of Oct. 10, 1911), Sen. Const. Amend. No. 26, statements by Sens. Boynton & Birdsall.) When a defendant has received a fair trial, and a review of the record reveals that, although some evidence improperly was admitted at trial, there also was an overwhelming amount of additional, properly admitted evidence clearly establishing the defendant's guilt, reversal of the judgment will result either in a superfluous retrial in which the outcome is a foregone conclusion or, even more unfortunately, in a new trial whose result is altered by the loss of essential witnesses or testimony through the passage of time. In either event, public confidence in the operation of the criminal justice system is diminished.

Furthermore, an overly broad reversible-error rule, mandating reversal even in circumstances in which it is clear the error did not affect the judgment, may in practice operate to weaken or diminish the basic constitutional right that is sought to be protected by the rule. As then-Justice Traynor explained for this court in People v. Parham, supra, 60 Cal.2d 378, 386 , in rejecting the adoption of a reversible-per-se rule with regard to the erroneous admission of evidence obtained as a result of an unconstitutional search or seizure: "A reversal for the admission of illegally obtained evidence without regard for prejudice when there is compelling legally obtained evidence of guilt constitutes nothing more than a penalty, not for the officer's illegal conduct in securing the evidence, but solely for the prosecutor's blunder in offering it and the trial court's error in admitting it. To require automatic reversal for such harmless error could not help but to generate pressure to find that the [improper] police conduct was lawful after all and thereby to undermine constitutional standards of police conduct to avoid needless retrial. [Citations.] An exclusionary rule so rigidly administered could thereby defeat itself." In our view, this reasoning applies equally in the context of coerced confessions, and affords an additional persuasive basis for us to decline to perpetuate the application of a reversible-per-se rule in the present setting.

(2e) Accordingly, for the reasons discussed above, we overrule the line of California decisions holding that the erroneous admission of a coerced confession is reversible per se under California law. [17] The prejudicial effect of such error is to be determined, for purposes of California law, under the *510 generally applicable reasonable-probability test embodied in article VI, section 13, of the California Constitution. ( People v. Watson, supra, 46 Cal.2d 818, 836 .) Of course, because the Watson standard is less demanding than the harmless-beyond-a-reasonable-doubt standard mandated by the applicable federal constitutional authorities (see Arizona v. Fulminante, supra, 499 U.S. 279, 306-312 [ 113 L.Ed.2d 302, 329-333 , 111 S.Ct. 1246, 1263-1266 ]; Chapman v. California, supra, 386 U.S. 18, 23 [ 17 L.Ed.2d 705, 710 ]), whenever a confession admitted in a California trial has been obtained by means that render the confession inadmissible under the federal Constitution, the prejudicial effect of the confession must be determined under the federal standard.

VIII

As discussed above, the Court of Appeal in the present case did not attempt to evaluate the prejudicial effect of defendant's involuntary confession in light of the other evidence received at trial, but rather followed the line of prior California decisions in concluding that the erroneous admission of such a confession required automatic reversal of defendant's murder-related convictions. Because we have overruled the line of decisions upon which the Court of Appeal relied, we consider it appropriate to remand this matter to the Court of Appeal to permit that court to determine the question of prejudice under the principles established herein. If the Court of Appeal determines, from its evaluation of the entire record, that the admission of defendant's confession does not compel reversal, it should proceed to address the additional claims of error raised on this appeal.

IX

To avoid any misunderstanding as to the nature or scope of our decision in this case, we add a few brief concluding remarks.

Nothing in this opinion should be misinterpreted to suggest that California law permits or tolerates the coercion of a confession from a suspect in a criminal case. The California Constitution clearly provides that persons may not "be compelled in a criminal cause to be a witness against themselves" (Cal. Const., art. I, § 15), and coercive conduct by any law enforcement officer that results in an involuntary confession is unquestionably intolerable and unconstitutional. An individual who is subjected to such unconstitutional *511 conduct may invoke a variety of remedies (see, e.g., Cooper v. Dupnik (9th Cir.1992) 963 F.2d 1220 [civil rights action for damages]), and a law enforcement officer who engages in such conduct may be subjected to severe administrative discipline and even criminal prosecution. Furthermore, the rule remains clear that when a trial court finds a confession has been obtained by improper means that render it "involuntary" or "coerced," the confession must be excluded from evidence at trial.

The issue we decide today thus does not turn on the question whether the California Constitution condones the obtaining of coerced confessions; it is plain that our state Constitution emphatically prohibits such conduct. The question before us involves a different and much narrower issue: namely whether, when an appellate court determines that a trial court has erred in finding that a defendant's confession is voluntary and concludes that the confession should not have been admitted in evidence at a defendant's trial, California law requires that the appellate court automatically reverse the defendant's conviction without regard to the nature and strength of the other evidence of guilt introduced at the trial, or instead requires that the appellate court consider all the evidence properly admitted at trial in determining whether reversal is warranted. As we have explained, in view of the language and history of the specific provision of the California Constitution governing the question of reversible error (Cal. Const., art. VI, § 13), we conclude that a rule of automatic reversal is not warranted under California law.

The judgment of the Court of Appeal is reversed insofar as it holds that the erroneous admission of defendant's involuntary confession automatically required reversal of his murder-related convictions, and the matter is remanded to the Court of Appeal for further proceedings consistent with the views expressed in this opinion.

Lucas, C.J., Panelli, J., Arabian, J., and Baxter, J., concurred.

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: "[O]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 *525 1258, 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 Brotherton ), 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 4 1/2 to article VI of the California Constitution (hereafter sometimes former section 4 1/2): "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 4 1/2 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 the 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 4 1/2 — 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 (conc. 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 4 1/2 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 4 1/2 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 "[e]very 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 1/2, 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 4 1/2, 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 1/2 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 1/2 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 4 1/2 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, J.).)

"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 4 1/2 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 4 1/2 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 4 1/2: "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 ...." "[W]hatever 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 4 1/2 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 4 1/2. 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 4 1/2 precluded automatic reversal for certain errors, but merely stated the "test" that was "generally applicable" when harmless-error analysis was appropriate. "[C]ertain 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 4 1/2 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 4 1/2 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 4 1/2. 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 4 1/2 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 4 1/2 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 4 1/2 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 n

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