THE PEOPLE, Plaintiff and Respondent, v. MARK STEVEN CAHILL, Defendant and Appellant, 5 Cal. 4th 478

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].) 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 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 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), 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, 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.

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 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 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 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. (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 [“[UJnlike 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.

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. Ill 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]; Rose v.

Clark, supra, 478 U.S. 570, 577-578 & fn. 6 [92 L.Ed.2d 460, 470-471].) 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.

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.

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 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 41/2 (hereafter, former

section 4y2>, a provision initially added to the California Constitution in 1911. Shortly after the enactment of former

section 4V2, 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. 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.

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 “[tjhis question must be answered with due regard to the terms of

section 4lA 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 Vi, 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.) 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 4Vz, 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 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 4Vi] 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 41/2 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 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 41/2 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.) 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 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.) 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.

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. 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. A review of the relevant California decisions—i.e., those rendered since 1911—reveals that from the enactment of former

section 4V2 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 4V2. (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. Incriminating statements from defendant’s own tongue are most persuasive evidence of Ms 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 Califorma 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 tMs 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 tMs 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 Califorma 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, and occasionally included language suggesting that the reversible-per-se rule was applicable only by virtue of federal law, 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 4V.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. [j[] 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 involved. It is because of the effect of the confession that reversal is compelled. [ft]. . .

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 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

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section A1 A 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 AlA, 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 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 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], 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, 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. Now that the federal high court has established 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, “[wjhen 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 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.) 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 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. 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 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%, 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 4VI 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].) 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.) Defendant argues, however, that even if it is possible to determine in a particular case that the erroneous admission of an involuntary confession 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

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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 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. 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 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.

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. The prejudicial effect of such error is to be determined, for purposes of California law, under the 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 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. Consistently with past usage, we employ the terms “coerced” and “involuntary” confessions interchangeably to refer to confessions obtained by physical or psychological coercion, by promises of leniency or benefit, or when the “totality of circumstances” indicates the confession was not a product of the defendant’s “free and rational choice.” (See generally 1 LaFave & Israel, Criminal Procedure (1984) § 6.2, pp. 439-451; 1 Witkin, Cal.

Evidence (3d ed. 1986) The Hearsay Rule, §§ 614-623, pp. 588-604 [involuntary confessions].) This category does not include confessions that are inadmissible for other reasons—for example, because they have been obtained in violation of the defendant’s constitutional right to counsel or by exploitation of an illegal detention or arrest.

As we shall see, however, past California decisions have applied a rule of “automatic reversal” to all erroneously admitted confessions and have not drawn any distinctions based upon the reason a particular confession was held inadmissible. (See post, pp. 496-497, 502-503) Unless otherwise noted, all

section references are to the Penal Code. The murder-related convictions include the first degree murder conviction and the related special circumstance allegations, the convictions of rape and robbery, and one of the first degree burglary convictions. All of these offenses were committed in the course of the same incident and against the same victim, and were the subject of the challenged portion of defendant’s confession.

The Court of Appeal specifically found that “the trial court erred in admitting evidence of defendant’s statements in response to interrogation after [Officer] Bell introduced the topic of ‘cold blooded premeditated murder,’ ” and noted that the officer’s objectionable statement in this regard occurred after a substantial period of questioning. We do address below the question whether Proposition 8 affects the application of California’s harmless-error analysis in cases in which a coerced confession is received in evidence. (See, post, pp. 499-500.) In Chapman v.

California, supra, 386 U.S. 18, the court stated that “our 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” and cited, as one example, “Payne v. Arkansas, 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844] (coerced confession).” (386 U.S. at p. 23 & fn. 8 [17 L.Ed.2d at p. 710].) And in Rose v. Clark, supra, 478 U.S. 570, 578, fn. 6 [92 L.Ed.2d 705, 470-471], the court observed that “[e]ach of the examples Chapman cited of errors that could never be harmless either aborted the basic trial process, Payne v.

Arkansas, 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844] (1958) (use of coerced confession), or denied it altogether, Gideon v. Wainwright, 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733] (1963) (denial of counsel); Tumey v. Ohio, 273 U.S. 510 [71 L.Ed. 749, 47

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