I concur in the result.
I agree with the majority that we should affirm the judgment of the Court of Appeal, which affirmed the judgment of the superior court, because I do not believe that there was any reversible error at trial.
*1209I so conclude inasmuch as I am of the view that defendant failed to raise the question in the superior court whether a statement would be admissible against a criminal defendant, even solely to impeach his credibility as a witness, if it had been obtained by an officer of a law enforcement agency pursuant to a policy to violate Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974] (hereafter sometimes Miranda). Had he raised the question, I believe that we would have to answer it in the negative.
The Fifth Amendment to the United States Constitution establishes a privilege against self-incrimination: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” In and of itself, the provision applies against the United States. (Barron v. Baltimore (1833) 32 U.S. (7 Pet.) 243, 247-250 [8 L.Ed. 672, 674-675].) Through the Fourteenth Amendment’s due process clause, it applies as well against the several states. (Malloy v. Hogan (1964) 378 U.S. 1, 8 [84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653].) Among its underlying policies are the prevention of overreaching by the government and the consequent mistreatment of the individual, whether by physical torture or psychological pressure, by blatant measures or subtle devices (see, e.g., Ullmann v. United States (1956) 350 U.S. 422, 428 [76 S.Ct. 497, 501, 100 L.Ed. 511, 53 A.L.R.2d 1008]); the exclusion of evidence that is regarded as inherently unreliable (see, e.g., Murphy v. Waterfront Comm’n (1964) 378 U.S. 52, 55 [84 S.Ct. 1594, 1596-1597, 12 L.Ed.2d 678]); and, perhaps most fundamentally, the striking and maintaining of a fair balance between the government and the individual as the former proceeds against the latter with threat of criminal sanction (see, e.g., Malloy v. Hogan, supra, 378 U.S. at pp. 7-8 [84 S.Ct. at pp. 14931494]; Murphy v. Waterfront Comm’n, supra, 378 U.S. at p. 55 [84 S.Ct. at pp. 1596-1597]). By its very letter, it prohibits judges from compelling testimony from a witness in the courtroom. (U.S. Const., Amend. V.) In accordance with its spirit, it also forbids officers of law enforcement agencies from coercing statements, within their precincts, from a person suspected of crime. (E.g., Miranda v. Arizona, supra, 384 U.S. at pp. 458-466 [86 S.Ct. at pp. 1619-1624]; Bram v. United States (1897) 168 U.S. 532, 542 [18 S.Ct. 183, 186-187, 42 L.Ed. 568].)
In Miranda, the United States Supreme Court expressly declared what it had impliedly recognized in other decisions stretching back scores of years—namely, that custodial interrogation of a criminal suspect by an officer of a law enforcement agency is at least potentially coercive. (See Miranda v. Arizona, supra, 384 U.S. at pp. 457-458 [86 S.Ct. at pp. 1618-1619].)
Prior to Miranda, the court had attempted to cure the evil of coercion of criminal suspects during custodial interrogation by officers of law enforcement agencies, and to do so on a case-by-case basis through a post hoc *1210application of a fact-specific “totality of the circumstances” test of “voluntariness.” (See generally, 1 LaFave & Israel, Criminal Procedure (1984) §§ 6.1-6.2, pp. 434-451.) For federal prosecutions, it relied on either the Fifth Amendment privilege against self-incrimination or a preconstitutional common law rule. (See, e.g., United States v. Carignan (1951) 342 U.S. 36, 41 [72 S.Ct. 97, 100, 96 L.Ed. 48].) For state prosecutions, by contrast, it relied on the Fourteenth Amendment’s due process clause (see, e.g., Brown v. Mississippi (1936) 297 U.S. 278, 285-286 [56 S.Ct. 461, 464-465, 80 L.Ed. 682]), inasmuch it had not yet held the Fifth Amendment applicable against the several states, and had already construed the Fourteenth Amendment’s due process clause to embrace an expanded version of the preconstitutional common law rule. By taking this approach, however, it failed to provide agencies and their officers with standards for conduct; it also failed to furnish trial courts with principles for the admissibility of a suspect’s statement. (1 LaFave & Israel, Criminal Procedure, supra, § 6.2(d), p. 450.)
Apparently dissatisfied with the results, the court in Miranda undertook to prevent the evil of coercion of criminal suspects during custodial interrogation by officers of law enforcement agencies, and to do so systematically through the granting of rights to suspects and the imposition of obligations on agencies and their officers, and also through the declaration of a rule of evidence for trial courts (see 1 LaFave & Israel, Criminal Procedure, supra, § 6.2(d), pp. 449-451)—as follows:
“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. ... As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Miranda v. Arizona, supra, 384 U.S. at pp. 444-445 [86 S.Ct. at p. 1612].)
*1211By taking this approach, the court in Miranda intended to provide standards for law enforcement agencies and their officers and also to furnish principles for trial courts, and did in fact do so. (Miranda v. Arizona, supra, 384 U.S. at pp. 441-442 [86 S.Ct. at pp. 1610-1611].)
In order to govern proceedings in the courtroom, the court in Miranda declared the rule of evidence quoted above. It fashioned it as one of exclusion. It made admissibility depend on certain “prerequisites.” (Miranda v. Arizona, supra, 384 U.S. at p. 476 [86 S.Ct. at p. 1629].)
In order to control conduct outside the courtroom, the court in Miranda granted the quoted rights to criminal suspects and imposed the quoted obligations on law enforcement agencies and their officers. It established these rights and obligations as the “prerequisites” to admissibility under its rule of evidence. (Miranda v. Arizona, supra, 384 U.S. at p. 476 [86 S.Ct. at p. 1629].) Although “prerequisites,” they were not mere preconditions: They possessed independent force and effect, constituting a “fundamental with respect to the Fifth Amendment privilege and not simply [an evidentiary] preliminary . . . .” (Ibid.) It made plain that these specific rights and obligations were not themselves compelled by the Fifth Amendment (Miranda v. Arizona, supra, 384 U.S. at pp. 467, 490-491 [86 S.Ct. at pp. 1624, 1636-1637])—that these rights and obligations, to use the term that would become common, were “prophylactic” entitlements and constraints rather than substantive constitutional ones (e.g., Withrow v. Williams (1993) 507 U.S. 680, 690-692 [113 S.Ct. 1745, 1752-1753, 123 L.Ed.2d 407]). But it also made plain that some such rights and obligations were practically demanded. (Miranda v. Arizona, supra, 384 U.S. at pp. 458, 467 [86 S.Ct. at p. 1619, 1624].) For, in their absence, “no statement obtained from” a suspect “can truly be the product of his free choice.” (Id. at p. 458 [86 S.Ct. at p. 1619].) In words that it later spoke: “ ‘Prophylactic’ though” they “may be, in protecting a” suspect’s “Fifth Amendment privilege against self-incrimination,” they “safeguard[] ‘a fundamental . . . right.’ ” (Withrow v. Williams, supra, 507 U.S. at p. 691 [113 S.Ct. at p. 1753].)1
As the years have passed, the court has confirmed the rights that it granted in Miranda to criminal suspects and the obligations that it there imposed on law enforcement agencies and their officers. (See, e.g., Withrow v. Williams, supra, 507 U.S. at pp. 686-695 [113 S.Ct. at pp. 1750-1755].) Particularly, it has confirmed these rights and obligations to have force and effect independent of the rule of evidence for which they are “prerequisites.” (See, e.g., *1212Moran v. Burbine (1986) 475 U.S. 412, 420 [106 S.Ct. 1135, 1140, 89 L.Ed.2d 410].) It has not made the suspect’s rights variable. (Compare Berkemer v. McCarty (1984) 468 U.S. 420, 429 [104 S.Ct. 3138, 3144-3145, 82 L.Ed.2d 317] [declining to narrow Miranda], with Moran v. Burbine, supra, 475 U.S. at p. 427 [106 S.Ct. at p. 1144] [declining to broaden Miranda].) Although a suspect may effect a waiver of his entitlements, he may not suffer a deprivation thereof. Neither has it made the obligations of the agency and officer optional. (See Cooper v. Dupnik (9th Cir. 1992) 963 F.2d 1220, 1243 (in bank).) They are not free to conduct, or misconduct, themselves like Holmes’s “bad man, who cares only for the material consequences” of obeying or disobeying the law. (Holmes, The Path of the Law (1897) 10 Harv.L.Rev. 457, 459.) That is to say, they are not at liberty to take up or put down their constraints as they may choose, depending on whether, with an eye toward the related rule of evidence, they are eager to preserve, or are willing to sacrifice, the prosecution’s ability to use at trial any statement that they may happen to obtain. To allow such a license would eviscerate Miranda, which was intended to prevent coercion, not to tolerate its risk. It would also hit at the Fifth Amendment itself, which is concerned, in part, with government overreaching and mistreatment of the individual.
To be sure, the court has somewhat qualified the rule of evidence that it declared in Miranda.
For example, in Harris v. New York (1971) 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] (hereafter sometimes Harris), in which a law enforcement officer, prior to Miranda, failed to anticipate his obligation to advise a criminal suspect of his right to the presence of an appointed attorney, the court created an exception to Miranda’s rule of evidence, holding that the prosecution may use a Miranda- violative statement solely to impeach a criminal defendant’s credibility as a witness, but not to make its case-in-chief. (Harris v. New York, supra, 401 U.S. at pp. 224, 226 [91 S.Ct. at pp. 645, 646].) It explained: “The impeachment process . . . provide[s] valuable aid . . . in assessing [the defendant’s] credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” (Id. at p. 225 [91 S.Ct. at p. 645].)
Similarly, in Oregon v. Hass (1975) 420 U.S. 714 [95 S.Ct. 1215, 43 L.Ed.2d 570] (hereafter sometimes Hass), in which a law enforcement officer fulfilled his obligation under Miranda to advise a criminal suspect defendant of his rights, but apparently breached his obligation to cease *1213questioning when the suspect expressed a wish to consult with an attorney, the court adhered to the impeachment exception created in Harris. It stated that it saw “no valid distinction to be made in the application of the principles of Harris to that case and to Hass’ case.” (Id. at p. 722 [95 S.Ct. at p. 1221].) “The only possible factual distinction . . . lies in the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore defective, as in Harris, does not mean that they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of the defect the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to testify falsely free from the embarrassment of impeachment evidence from the defendant’s own mouth, [ft One might concede that when proper Miranda warnings have been given, and the officer then continues his interrogation after the suspect asks for an attorney, the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material. This speculative possibility, however, is even greater where the warnings are defective and the defect is not known to the officer. In any event, the balance was struck in Harris, and we are not disposed to change it now.” (Id. at p. 723 [95 S.Ct. at p. 1221].)
It is plain, however, that the court has not qualified the rule of evidence that it declared in Miranda, as it were, unqualifiedly.
Specifically, the court has not qualified Miranda's rule of evidence in the face of a policy of a law enforcement agency, in exploitation of the impeachment exception of Harris and Hass, to obtain statements from criminal suspects in violation of Miranda—“outside Miranda," to use the current law enforcement euphemism—for example, in the face of an agency’s policy requiring its officers to continue to attempt to get information by breaching their obligations after they have gotten all the information that they could get by fulfilling them initially. Rather, the court has acted only in the context of a default by an individual officer.
The absence of a qualification of Miranda's rule of evidence here should cause no surprise.
Any policy of a law enforcement agency to obtain statements from criminal suspects in violation of Miranda would strike through the suspect’s “prophylactic” rights toward his substantive Fifth Amendment privilege against self-incrimination itself. When, for example, the suspect invokes his *1214“prophylactic” right to remain silent, he thereby invokes his substantive Fifth Amendment privilege. (See Miranda v. Arizona, supra, 384 U.S. at p. 474 [86 S.Ct. at pp. 1627-1628].) Hence, an officer’s further questioning in spite of the invocation would threaten to dishonor the latter as well as the former. (See ibid.) Similarly, when the suspect invokes his “prophylactic” right to the presence of an attorney, he thereby invokes his substantive Fifth Amendment privilege. (See Fare v. Michael C. (1979) 442 U.S. 707, 719 [99 S.Ct. 2560, 2568-2569, 61 L.Ed.2d 197].) Again, an officer’s further questioning in spite of the invocation would threaten to dishonor the latter as well as the former. (See Miranda v. Arizona, supra, 384 U.S. at p. 474 [86 S.Ct. at pp. 1627-1628].)
Moreover, any policy of a law enforcement agency to obtain statements from criminal suspects in violation of Miranda would necessarily constitute proof that “sufficient deterrence” of “proscribed . . . conduct” does not, in fact, “flowG” from exclusion of such statements from the prosecution’s case-in-chief. (Harris v. New York, supra, 401 U.S. at p. 225 [91 S.Ct. at p. 645].) At the same time, it would necessarily constitute proof that a more than sufficient incentive to such conduct is given by their admissibility under the impeachment exception of Harris and Hass. For, in a situation of this sort, “proscribed . . . conduct” would not figure merely as a “speculative possibility.” (Harris v. New York, supra, 401 U.S. at p. 225 [91 S.Ct. at p. 645].) It would rather present itself as an actual fact. Any argument based on the Sixth Amendment decision of Michigan v. Harvey (1990) 494 U.S. 344, 351 [110 S.Ct. 1176, 1181, 108 L.Ed.2d 293], to the effect that “the ‘search for truth in a criminal case’ outweighs the ‘speculative possibility’ that exclusion of’ such statements, even for purposes of impeachment, “might deter future violations,” would prove not to be persuasive. The balance struck in favor of the “search for truth” over the “speculative possibility” of deterrence has been struck only in the context of a default by an individual officer. Here it is different. In one pan of the scale, of course, one must place the “search for truth.” But, in the other, one must place much more than a mere “speculative possibility” of deterrence. By definition, a policy of the kind described above would be designed to exploit the impeachment exception of Harris and Hass. Without the availability of such an exception, it would have no reason for existence and therefore, unless unreasonable, would not exist. It may indeed be true, as stated in Michigan v. Tucker (1974) 417 U.S. 433, 447 [94 S.Ct. 2357, 2365, 41 L.Ed.2d 182], that, “[w]here . . . official action [is] pursued in complete good faith, ... the deterrence rationale loses much of its force.” But if so, it must also be true that, where official action is pursued in utter bad faith, as in accordance with the type of .policy in question, the deterrence rationale retains its force without any diminution whatsoever.
*1215All this is not to deny that the impeachment exception of Harris and Hass could be extended, vi et armis, to circumstances in which there is a policy of a law enforcement agency to obtain statements from criminal suspects in violation of Miranda. Such an extension might buy the “benefits” of the “impeachment process” “in assessing” a criminal defendant’s “credibility” as a witness. (Harris v. New York, supra, 401 U.S. at p. 225 [91 S.Ct. at p. 645].) But it would exact a great cost from Miranda, and ultimately from the Fifth Amendment privilege against self-incrimination itself. For the agency would then be allowed to respect, or to dishonor, the suspect’s rights, and to fulfill, or to breach, its own obligations, and to do so as it should see fit. So long as Miranda remains vital—a determination that is fortunately not within the agency’s competence—such a result would be absurd.
In conclusion, because I do not believe that there was any reversible error at trial, I concur in affirming the judgment of the Court of Appeal.
Appellant’s petition for a rehearing was denied June 24, 1998.
See LaFave, Constitutional Rules for Police: A Matter of Style (1990) 41 Syracuse L.Rev. 849, 859 (commenting that “the fifth amendment at the stationhouse [would] be meaningless without the protections of Miranda”).