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The Warren Court's 1966 decision in Miranda v. Arizona was a lightning rod for conservative critics of the judiciary.   Miranda compelled law enforcement agents nationwide to warn those taken into custody, prior to questioning them, that they have a right to remain silent, a right to an attorney, and a right to cut off the questioning. As early as 1971, in Harris v. New York, the Burger Court established an exception to the rule.   Normally, if police fail to meet Miranda requirements, if, for example, they do not read all of the famed warnings about the right to counsel and silence, the suspect's statements, even a voluntary full confession, are inadmissible at trial as evidence of his guilt. Harris held that such statements are nevertheless admissible to impeach the defendant's testimony should he testify at his trial. That is, a defendant's incriminating statements, though obtained in violation of the Miranda rule, are admissible for the limited purpose of contradicting the defendant's testimony.   Chief Justice Burger, speaking for the Harris majority, explained that an impeachment exception is necessary to keep Miranda from becoming a "shield for perjury."

In People v. Disbrow, the California Supreme Court rejected the Harris rule for the state constitutional self-incrimination clause, Article 1, section 15. Four arguments were offered against Harris. First, it was said to hearken back to the pre-Miranda approach to confessions, which had been rejected (in Miranda) because of the difficulties in applying it. Second, a mere caution to juries from the trial judge to refrain from considering impeachment evidence as proof of guilt was said to be unlikely to be effective. Third, it was contended that Harris would reduce police incentives to comply with Miranda by creating an exception to the Miranda exclusionary rule. Finally, the Disbrow court reasoned that the integrity of the judiciary would be undermined by having to admit into a trial illegally obtained statements. Under the California Constitution, therefore, statements taken in violation of Miranda could not be used by the prosecutor at all, whether to prove guilt or to impeach the defendant's testimony.

Once again, as in the search and seizure and capital punishment areas, the California high court challenged the highest court in the land and, utilizing the state constitution, established expanded protections for the criminally accused. Once again, from a law enforcement perspective, the result was that the prosecution and conviction of criminals was rendered more difficult. A defendant could take the stand and lie, secure in the knowledge that the prosecutor could not rebut his testimony with any contradictory statements obtained by the police if they violated the Miranda rules.

The search and seizure and Miranda cases described above are illustrative but not exclusive. Indeed, they were part of a pattern of California Supreme Court cases that rejected U.S. Supreme Court doctrines on the basis of the state constitution.  And of course, all of the trial courts and all of the intermediate appeals courts throughout the state, in the many hundreds of thousands of cases before them, were duty-bound to follow the dictates of California's highest tribunal. Thus, the impact of these rulings on the criminal case law of the state can hardly be overestimated. In addition, the California Supreme Court made some lightning rod criminal law rulings that did not involve the state constitution.   One of the most controversial concerned the interpretation of a "use-a-gun, go-to-prison" law. In People v. Tanner the supreme court initially determined that the refusal of a trial judge to apply the law to an armed convenience store robber was a matter properly within the judge's discretion.   After a public outcry the court reconsidered the case and reversed its ruling.

As they did with the death penalty, conservatives mobilized public opposition to these decisions, and in 1982 they succeeded in obtaining voter approval of an amendment to the state constitution, effectively reversing most of the California Supreme Court's ultraprotective search and seizure and Miranda rulings.

The California Constitution empowers voters to amend the fundamental law of the state by initiative, that is, by popular vote.  In 1978 this vehicle proved spectacularly successful when the Jarvis-Gann Initiative, Proposition 13, rolled back property taxes. (The California Supreme Court upheld Proposition 13 over a dissent by Chief Justice Bird, who found it violative of the state constitutional equal protection clause.) The success of Proposition 13 gave great impetus to Proposition 8, the Victims' Bill of Rights. First developed by state prosecutors and Republican legislators, the criminal justice reform measure appeared on the June 1982 primary election ballot. This had been preceded by a failed attempt to enact the package by ordinary legislation, and a successful court fight to ensure the initiative's place on the ballot. On June 8, 1982, Proposition 8 was approved by 56.4 percent of those voting.

Proposition 8 contained several provisions, collectively titled the "Victims' Bill of Rights." The focus was entirely on criminal justice, covering such matters as the rights of victims, school safety, bail, and what was called "truth-in-evidence." The truth-in-evidence portion, which became Article 1, section 28(d), of the state constitution, is most relevant here. It reads as follows.

Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.

The operative words are "relevant evidence," for relevance here means relevance to the question of guilt or innocence. Evidence that was obtained illegally by the police is nonetheless "relevant" if it helps prove defendant's guilt. Thus, evidence excludable pursuant to the state constitution because of search and seizure or Miranda violations would be, as a result of this provision, admissible if relevant to guilt. (By contrast, evidence excludable under the federal Constitution would still be inadmissible because a state constitutional provision cannot subvert federal constitutional rules.) In one bold stroke, as the state supreme court itself recognized, state constitutional exclusionary rules broader than the federal constitutional exclusionary rules were all eliminated. Thus, although the California Constitution may impose greater restrictions than the U.S. Constitution on law enforcement personnel, the California courts may not enforce those restrictions by suppressing evidence beyond that required to be suppressed under the federal Constitution. Consequently, all of the search and seizure and Miranda cases discussed above -- Norman, Wimberly, Ruggles, and Disbrow -- are effectively nullified. Disbrow, which had rejected the Harris rule, presents a clearcut example. In 1988, in People v. May, which raised the identical legal issue resolved in Disbrow, the state high court declared Disbrow "abrogated" and noted that the probable aim of Proposition 8 was "to dispense with exclusionary rules derived solely from the state Constitution." Therefore, California now follows the federal rule and admits for impeachment purposes statements taken in violation of Miranda. . .

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