In this death penalty case, shortly before trial was to begin, the prosecution gained access to a confidential tape recording that contained details of defense counsel’s trial strategy and references to privileged communications between defendant and his attorney. A member of the prosecution team then unlawfully destroyed the tape recording. This act of destruction prevented the defense from showing by expert testimony that the prosecution had listened to the tape. The majority holds that this invasion of the defense camp required no sanction whatsoever, and affirms defendant’s sentence of death.
I disagree. As I shall discuss, the precedents of the United States Supreme Court and of this court, as well as basic concepts of fair play, require that the judgment of conviction and sentence of death be reversed, and that the case be remanded for a new trial free of the taint of prosecutorial illegality and unfair advantage.
I
Defendant’s attorney, Assistant Public Defender Bill Davis, dictated a cassette tape recording in preparation for a strategy meeting with other attorneys in his office. The tape revealed his detailed perceptions of the strengths and weaknesses of the case as well as his complete trial strategy, and contained privileged information obtained from defendant. After the tape was transcribed, Davis inadvertently left it in a county car.
After jury selection in this capital case had begun, the prosecutor in this case, Deputy District Attorney Gary Van Camp, and Sergeant Harry Heidt of the Lompoc Police Department found a sealed envelope in a county car. The envelope showed the name of Assistant Public Defender Davis and the address of the public defender’s office. The envelope appeared to contain a cassette tape. According to Heidt, Van Camp expressed his belief that the *1007tape might relate to this case, and told Heidt to listen to the tape and “report” to him what was on the tape. Heidt testified that he did not do so and that, instead of complying with procedures regarding found property, threw the sealed envelope into a trash dumpster 15 minutes later. The envelope and its contents were never recovered.
Three weeks later, during which time the prosecution continued its investigation into this death penalty case, interviewing numerous witnesses and preparing its trial strategy, the chief of the Lompoc Police Department learned of Heidt’s destruction of the defense tape. The police chief notified the district attorney’s office, which in turn told defense counsel of the incident. District Attorney Thomas Sneddon then began an internal investigation of the misconduct. When the trial court ordered the prosecution to provide the defense complete discovery of information relating to the misconduct, District Attorney Sneddon immediately terminated his internal investigation of the deputy’s misconduct. District Attorney Sneddon removed Van Camp from the case, demoted him, and prosecuted the case personally.
Defendant moved for dismissal of the case, recusal of the county District Attorney’s office, and a continuance to conduct further research and investigation. The trial court reviewed in chambers a transcript of the defense tape that had been prepared before the tape’s destruction by the prosecution.
At the hearing on defendant’s motions, defendant argued that Sergeant Heidt’s destruction of the tape “deprived the defense of the only physical evidence it could use to impeach Heidt and Van Camp regarding whether they unsealed the envelope and listened to the tape.” Defendant presented the testimony of a forensic acoustics expert who stated he could, if he had the tape, determine whether it had been played. Moreover, according to another defense expert, if the tape had not been destroyed by Heidt, fingerprint evidence could determine whether Heidt or Van Camp had taken the tape from its sealed envelope and handled it.
In making his preliminary finding that Deputy District Attorney Van Camp and Sergeant Heidt had not listened to the tape, the trial judge expressly stated that he relied in part on his personal knowledge and opinion of Heidt, with whom he had worked as a deputy public defender and deputy district attorney in the county.1 The trial court denied all relief requested by the defense, and the case proceeded to trial.
*1008II
Defendant contends that because the prosecution’s destruction of the tape made it impossible to determine whether the prosecution had played the tape, the trial court should, as a sanction, have deemed it established that the prosecution had done so. This argument has merit.
The majority analyzes this contention under California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333] (Youngblood). Both of these cases concern the destruction of potentially exculpatory evidence, and, accordingly, they establish a test for determining whether to impose sanctions based in part on the exculpatory value of the evidence destroyed.
This case, however, does not involve the destruction of exculpatory evidence. What was destroyed here was evidence of possible prosecutorial misconduct, which, if it occurred, violated the work-product privilege, the attorney-client privilege, and defendant’s Sixth Amendment right to counsel. Although the destruction of such evidence is as much a violation of a defendant’s right to due process as is the destruction of exculpatory evidence, the test for determining whether to impose sanctions here cannot turn on the exculpatory value of the evidence destroyed. Were it to do so, no sanctions for the destruction of evidence of prosecutorial misconduct could ever be imposed, because such evidence has no direct bearing on a criminal defendant’s guilt or innocence, thus lacking any exculpatory value. The majority, by attempting to apply Trombetta and Youngblood to the facts of this case, tries to force a square peg into a round hole.
But even if one were to apply a test roughly analogous to that set forth in Trombetta and Youngblood to determine whether the trial court here should have imposed some sanction on the prosecution, application of such a test to the facts of this case compels the conclusion that severe sanctions were called for and that the trial court’s failure to impose sanctions requires reversal of the judgment against defendant.
Considered together, Trombetta and Youngblood establish three criteria that must be met to establish a violation of a defendant’s right to due process of law when exculpatory evidence has been destroyed by the prosecution. First, the evidence destroyed must possess “exculpatory value that was apparent before the evidence was destroyed.” (Trombetta, supra, 467 U.S. at *1009p. 489 [81 L.Ed.2d at p. 823].) Second, the defendant must show bad faith on the part of the prosecution. (Youngblood, supra, 488 U.S. at p. 58 [102 L.Ed.2d at p. 289].) Third, the evidence must be “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Trombetta, supra, 467 U.S. at p. 489 [81 L.Ed.2d at p. 823].) To the extent these requirements are applicable here, they were, in my view, satisfied.
With respect to the first criterion of the Trombetta!Youngblood test, the majority concludes that the “exculpatory value of the envelope and the cassette themselves was not apparent at the time Heidt threw them away.” (Maj. opn., ante, at p. 965.) The majority’s literal approach to this criterion fails to recognize that, as I noted earlier, the materials on the defense tape that was destroyed by the prosecution contained no evidence that might have exculpated defendant. Thus, it is meaningless to speak of “exculpatory evidence” in this case. In order to give this criterion significance in the context of this case, the concept of “exculpatory value” must be refocused and broadened. Rather than asking whether the “evidence” that was destroyed possessed “exculpatory value that was apparent [to the prosecution] before [it] was destroyed,” it is sensible to reframe the inquiry here in this way: Did the material that was destroyed possess importance to the case that was apparent to the prosecution before it was destroyed?
The importance of the defense tape that was destroyed by the prosecution cannot be disputed. Both Deputy District Attorney Van Camp and Sergeant Heidt had strong reason to suspect that the defense attorney’s tape or its contents contained important information relating to the case. Indeed, that appears to have been the reason that prompted Van Camp to order Heidt to listen to the tape. On this record, the potential value of the tape was certainly apparent to Van Camp and Heidt before the latter’s destruction of the tape.
As to the second criterion of the TrombettaJYoungblood test, here there is compelling evidence of bad faith by the prosecution. Instead of filling out a found-property report and returning the tape to defendant’s counsel through the proper channels, Sergeant Heidt, knowing the tape was important, intentionally destroyed the tape by throwing it away. This action violated Penal Code section 594 (it is a crime to maliciously destroy personal property of another). (See also Gov. Code, § 6200.)
With regard to the third and final requirement, that the destruction of the material prejudiced the defendant, the majority denies that the prosecution’s destruction of the defense attorney’s tape prejudiced defendant. According to the majority, “the destruction of the contents of the tape recording did not *1010lessen defendant’s ability to challenge Heidt’s testimony that the prosecution did not listen to the tape.” (Maj. opn., ante, at p. 965.) Although the destruction of the contents of the tape may not have prejudiced defendant, destruction of the tape itself did, as I shall explain.
At the hearing on defendant’s motion for sanctions based on the destruction of the tape, the defense presented undisputed testimony that if the envelope containing the tape had been recovered, the defense could have produced evidence indicating that the tape had been listened to by the prosecution. Such evidence would include the condition of the originally sealed envelope; the presence of fingerprints on the tape or its container; the position of the tape (wound or unwound); and the presence of other evidence of handling, such as dirt, smudges, rips, breaks or cracks on the tape or its container. Moreover, the defense presented undisputed testimony of a tape-recording expert, Michael Hecker, who said that if the tape had been recovered, it could have been analyzed to determine if it had been played on a machine other than the one used by the defense team, by searching for distinctive mechanical or magnetic characteristics on the tape. Under these circumstances, I am of the view that the prosecution’s destruction of the defense attorney’s tape prejudiced the defense by depriving it of any opportunity to show that the prosecution had indeed listened to the tape.
Therefore, to the extent the criteria set forth by the high court in Trombetta and Youngblood are applicable to this case, they require a finding that the prosecution’s intentional destruction of the defense attorney’s tape violated defendant’s right to due process. When a court finds that the prosecution has violated a defendant’s rights in this manner, “the court must choose between barring further prosecution or suppressing ... the State’s most probative evidence.” (Trombetta, supra, 467 U.S. at p. 487 [81 L.Ed.2d at p. 821].) Because the misconduct in this case did not concern evidence that might have been introduced at trial, there is no evidence to suppress. Thus, if Trombetta and Youngblood apply, the remedy is reversal of the judgment against defendant, with directions to the trial court to dismiss the case, and to bar further prosecution. Whether this is an appropriate remedy in this case is a question I shall explore below.
Ill
This case does not involve the suppression of exculpatory evidence because the defense tape that was destroyed by the prosecution was not itself, and did not contain, evidence of any sort that might have been introduced at defendant’s trial, much less evidence that might have exculpated defendant.
As I noted earlier, the destroyed tape contained defense counsel’s detailed trial strategy and his perceptions of the strengths and weaknesses of the case *1011against defendant. Defendant argues that the appropriate sanction for the destruction of the tape, which prevented him from showing that the prosecution had listened to it, is to deem it established that the prosecution did listen to the tape.
There is no case on point. But this court’s decision in People v. Zamora (1980) 28 Cal.3d 88 [167 Cal.Rptr. 573, 615 P.2d 1361] (Zamora) may provide some guidance. There, the defendant was charged with resisting arrest and with battery on a police officer. He sought discovery of past records of unsustained complaints made by citizens alleging excessive use of force by the officers involved. Except for the names of the complainants, all those records had been destroyed about two weeks before the defendant’s arrest, depriving him of the opportunity to locate witnesses who might testify about the officers’ past use of excessive force.
In Zamora, this court determined that the trial court erred in not imposing any sanction for the destruction of the police records. We rejected the remedy of dismissal, and held that the proper sanction was a jury instruction that the officers “used excessive or unnecessary force on each occasion when complaints were filed against [them], but that the complaint records later were destroyed.” (Zamora, supra, 28 Cal.3d at pp. 102-103.) We said, “We would thus tailor the sanction to compensate for the exact wrong done . . . .” (Id. at p. 103.) Our approach to remedial sanctions in Zamora remains good law. (See People v. Cooper (1991) 53 Cal.3d 771, 811 [281 Cal.Rptr. 90, 809 P.2d 865]; People v. Medina (1990) 51 Cal.3d 870, 894 [274 Cal.Rptr. 849, 799 P.2d 1282].)
In determining the proper sanction in Zamora, this court looked to three factors. First, the Zamora court considered “the particular circumstances attending [the] loss or destruction,” noting that lawful and proper destruction warranted no sanction, but that illegal and malicious destruction could result in dismissal. (Zamora, supra, 28 Cal.3d at p. 100.) Here, the prosecution’s destruction of the confidential tape belonging to the defense attorney was both illegal and done in bad faith, as discussed previously.
Second, the Zamora court noted that “the sanction depends on the materiality of the evidence suppressed.” (Zamora, supra, 28 Cal.3d at p. 100.) As I pointed out earlier, this case does not concern evidence that might have been introduced at trial; but taking “materiality” to be a synonym for importance, it cannot be denied that in this capital murder case the tape containing defense counsel’s distillation of his trial strategy was of great importance to the case.
Third, the court in Zamora stated that, in arriving at a proper sanction, “the courts must consider the impact of the sanction upon future cases and *1012future police conduct.” (Zamora, supra, 28 Cal.3d at p. 100.) Here, this factor weighs in favor of a substantial judicial sanction, to provide a disincentive to engage in similar misconduct in the future.2
In Zamora, the defense was prevented from showing that the records would have led to favorable evidence by the fact of their destruction; this deprivation required a sanction adverse to the prosecution on the issue of excessive force. Here, the defense was prevented from showing that the prosecution had played the tape by the fact of the tape’s destruction; this deprivation requires a finding adverse to the prosecution on the issue whether the prosecution had listened to the tape. As in Zamora, the sanction in this case should also be “tailor[ed]... to compensate for the exact wrong done . . . .” (Zamora, supra, 28 Cal.3d at p. 103.) In light of the applicable case law, the appropriate judicial sanction for the willful destruction of the tape is to deem it established that the prosecution team did in fact listen to it. This sanction parallels that in Zamora.3
IV
Based on my conclusion that the trial court should have deemed it established that members of the prosecution team had listened to the defense strategy tape, I turn to the consequences of that conclusion.
A defendant’s right to the assistance of counsel free from unreasonable government interference is protected by the Sixth Amendment. (See, e.g., Weatherford v. Bursey (1977) 429 U.S. 545, 558 [51 L.Ed.2d 30, 41-42, 97 S.Ct. 837].) When, as here, the prosecution has unlawfully gained access to confidential defense strategy materials, the prosecution has thereby unreasonably interfered with the defendant’s right to the assistance of counsel. In *1013United States v. Morrison (1981) 449 U.S. 361 [66 L.Ed.2d 564, 101 S.Ct. 665], which concerned government agents who met with a defendant without the knowledge or permission of her counsel, the court stated that cases “involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests,” (id. at p. 364 [66 L.Ed.2d at p. 568]) and that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” (Id. at p. 365 [66 L.Ed.2d at p. 569].) It is apparent from an examination of Morrison that the high court was referring to a dismissal that would preclude retrial. (Id. at p. 365, fn. 2 [66 L.Ed.2d at p. 569]; see 2 LaFave & Israel, Criminal Procedure (1984) § 11.8, pp. 75-76.)
In this case, did the prosecution’s intentional destruction of the defense tape result in prejudice “or substantial threat thereof’? (United States v. Morrison, supra, 449 U.S. at p. 365 [66 L.Ed.2d at p. 569].) This court’s decision in Barber v. Municipal Court (1979) 24 Cal.3d 742 [157 Cal.Rptr. 658, 598 P.2d 818] (Barber) is instructive. Although Barber was decided on state constitutional grounds, the facts are comparable to those in this case. In Barber, the defendants had participated in a sit-in at a nuclear power plant, and were charged with trespass. The defendants held meetings with their attorneys to plan trial strategy. Later they learned that a codefendant was an undercover police officer. Although there was no showing that the officer had passed information to the prosecution, this court held that, on the facts of that case, “[t]he only effective remedy is the dismissal of the underlying charges.” (Id. at p. 760.)
In Barber, we rejected the prosecution’s argument that an exclusionary remedy would suffice. We noted that “the enforcement of an exclusionary rule would involve exceedingly difficult problems of proof for the aggrieved client,” and that in such circumstances “[s]ubtle forms of prejudice are nearly impossible to isolate.” (Barber, supra, 24 Cal.3d at p. 757.)
The practical problems of showing actual prejudice when the prosecution has illegitimately invaded the defense camp and gained access to attorney-client privileged materials, as happened here, were explained in Briggs v. Goodwin (D.C. Cir. 1983) 698 F.2d 486, 494-495 [225 App.D.C. 3200]: “It would be virtually impossible for an appellant or court to sort out how any particular piece of information in the possession of the prosecution was consciously or subconsciously factored into each of those [prosecutorial] decisions. Mere possession by the prosecution of otherwise confidential knowledge about the defense’s strategy or position is sufficient in itself to *1014establish detriment to the criminal defendant. Such information is ‘inherently detrimental, . . . unfairly advantage[s] the prosecution, and threaten[s] to subvert the adversary system of criminal justice.’ ” (See also United States v. Levy (3d Cir. 1978) 577 F.2d 200, 209 [“We think that the inquiry into prejudice must stop at the point where attorney-client confidences are actually disclosed to the government enforcement agencies responsible for investigating and prosecuting the case.”]; accord, United States v. Costanzo (3d Cir. 1984) 740 F.2d 251, 257.)
I find additional guidance in the United States Supreme Court’s decision in Arizona v. Fulminante (1991) 499 U.S. _ [113 L.Ed.2d 302, 111 S.Ct. 1246]. There, Chief Justice Rehnquist, speaking for a majority of the court, distinguished between “trial error” and “structural error” for the purpose of determining whether a federal constitutional violation could be analyzed under the “harmless beyond a reasonable doubt” test enunciated in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065] to determine prejudice to the defendant, or whether such a violation instead required automatic reversal. “Trial error,” the high court explained, would be any constitutional 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 harmless beyond a reasonable doubt.” (499 U.S. at p.__[113 L.Ed.2d at p. 330, 111 S.Ct. at p. 1264].)
By contrast, the high court said, other errors are “structural defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” (Arizona v. Fulminante, supra, 499 U.S. at p._ [113 L.Ed.2d at p. 331, 111 S.Ct. at p. 1265].) Such structural defects include denial of the right to public trial, and denial of the right to self-representation. (Ibid.)
When the prosecution unlawfully gains access to defense trial strategy, that violation of the defendant’s rights is not curable by an exclusionary remedy, because the harm of the violation is not that it produced evidence that was unlawfully obtained, and there is nothing to exclude. Nor is it susceptible to a harmless error analysis, because the constitutional violation did not occur “during the presentation of the case to the jury,” and therefore may not be “quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” (Arizona v. Fulminante, supra, 499 U.S. at p._ [113 L.Ed.2d at p. 330, 111 S.Ct. at p. 1264].) In other words, such a violation of the attorney-client privilege and the Sixth Amendment right to counsel is more akin to a “structural defect” than to a “trial error,” to use the phraseology of the majority in Arizona v. Fulminante.
*1015When, as here, the prosecution has unlawfully invaded the defense camp and gained access to attorney-client privileged materials, there is a “substantial threat of prejudice” within the meaning of United States v. Morrison, supra, 449 U.S. at page 365 [66 L.Ed.2d at page 569], and a “structural defect affecting the framework within which the trial proceeds” within the meaning of Arizona v. Fulminante, supra, 499 U.S. at page_[113 L.Ed.2d at page 331, 111 S.Ct. at page 1265], In this circumstance, the only meaningful remedy at the trial court level is dismissal.
V
A prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629]; accord, e.g., ABA Model Rules of Prof. Conduct, rule 3.8.) “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” (Berger v. United States, supra, at p. 88 [79 L.Ed.2d at p. 1321].) This court has emphasized that “[i]t is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice.” (People v. Rhodes (1974) 12 Cal.3d 180, 185 [115 Cal.Rptr. 235, 524 P.2d 363].)
These considerations are always important, but they take on added importance when, as here, society’s ultimate sanction of capital punishment is at issue. In a death penalty trial, it is essential that the public have a high degree of confidence that its representatives in court seek conviction and punishment without obtaining any unfair advantage over the defendant.
The prosecution’s interference with defendant’s right to counsel in this case does not mean that defendant can never receive a fair trial on these charges under any circumstances. At a retrial, both the prosecution and the defense will have the advantage of knowledge of their adversary’s strategy, based on the record of the first trial. Thus, a retrial will occur on a “level playing field.” This will erase any appearance of impropriety and assure that no unfair advantage had been exploited.
*1016I would reverse the judgment with instructions to the trial court to dismiss the case and to permit refiling of the charges.
Appellant’s petition for a rehearing was denied April 29, 1993. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
In passing on the defense motions, it was improper for the trial judge to rely upon his personal opinion of Sergeant Heidt’s credibility based on facts not in the record. (See Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108-109 [285 Cal.Rptr. 570].) I *1008agree with the majority, however, that, by failing to object to the trial judge’s reliance on facts outside the record, the defense did not preserve the question for review. (Id. at p. 108.)
District Attorney Sneddon demoted Deputy District Attorney Van Camp from grade IV to grade I as a result of his actions in this case. This substantial sanction demonstrates a recognition by the district attorney of the seriousness of the issue, and a commendable willingness to address it within his office. The courts, however, have a broader responsibility to establish structural disincentives for egregious misconduct, and therefore this discretionary action by the district attorney, although warranted, cannot substitute for a judicial sanction that possesses general applicability to future cases and other prosecutorial agencies, and has the force of law as well.
This sanction also parallels sanctions imposed in civil cases in comparable situations. Under Code of Civil Procedure section 2023, subdivision (b)(2), “[t]he court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process.” (See, e.g., Kuhns v. State of California (1992) 8 Cal.App.4th 982, 987 [10 Cal.Rptr.2d 773]; Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 302, 305 [10 Cal.Rptr. 377].)
When the destruction of evidence or critical materials by an adverse party is at issue, a defendant on trial for his or her life, as is the case here, should be entitled to no less protection than a plaintiff or defendant in an ordinary civil case.