{concurring). While I concur in the opinion of the majority of this court that Dona Hoyt is entitled to a new trial because an alternative verdict of manslaughter should have been submitted to the jury and because her involuntary confession was admitted into evidence against her, I must note my disagreement, in part, with the majority’s reasoning upon which this result is predicated.
THE MANSLAUGHTER VERDICT.
The majority retains the “objective,” provocation-sufficient-to-enrage-the-ordinarily-constituted-man test, to determine whether conduct ordinarily deemed first or second-degree murder could properly be regarded as manslaughter within the meaning of sec. 940.05 (1), Stats.1
Applying the test to the circumstances of this case, the court concludes that a manslaughter verdict should have been submitted to the jury.
In my view, the traditional test creates many problems which lead to the conclusion that the ordinarily constituted man formula does not deal with the issue posed by the re*299quest to submit a manslaughter verdict in a prosecution for first or second-degree murder. I would reject the traditional test and replace it with another formula which gives effect to the legislative gradation of homicide set forth in ch. 940, Stats.
Sec. 940.05 (1), Stats., provides that homicide, which would otherwise be first or second-degree murder, shall be deemed manslaughter if committed “without intent to kill and while in the heat of passion.” What is the meaning of “intent to kill” within this section? Generally, an intention to kill means that a person has consciously chosen to destroy another, and has purposively directed his conduct to that end.2
However, as the assistant attorney general has noted in argument, a finding that a defendant was adequately provoked, irrespective of the test applied, is legally equivalent to a finding of no intention to kill within the meaning of sec. 940.05 (1), Stats. Therefore, even though in fact a defendant consciously chose to kill another, and purposively directed his conduct to that end, if the victim’s conduct would have provoked the ordinarily constituted man to follow the same course of action, the defendant is guilty of manslaughter and not murder.
That this analysis of the meaning of “without intent to kill” expresses the legislative purpose of this section, can be determined by reference to a law-review article in the Wisconsin Law Review, written by Assistant Attorney General William A. Platz, a member of the advisory committee which participated in the drafting of the Criminal Code. This court has held that an article in a scholarly publication by a member of a bar advisory committee which participated in the formulation of a broad comprehensive piece of legislation, *300may be treated as an authoritative statement of legislative intention.3
In this article relating to the substantive portions of the 1956 Criminal Code, Platz noted:
“Manslaughter (which covers only ‘voluntary’ killings) may be committed under four circumstances set forth in section 940.05. The first, ‘heat of passion,’ was fully codified in 1953, but this was changed in the 1955 draft so that it will be necessary to consult the case law for the definition of the term. The fiction that ‘heat of passion’ negates an intent to kill was abandoned in the 1953 code (which treated manslaughter as murder mitigated by circumstance) but has been written back into the law. Distinctions based on the manner of the killing are abolished.” (Emphasis added.) 4
Therefore, the legislature intended a finding of adequate provocation to be legally coextensive with a finding of no intention to kill, even though factually the defendant consciously and purposively took the life of another.
In the legislative scheme of gradation of homicide, manslaughter is a mitigated verdict, following upon a demonstration that the defendant is less blameworthy than others who commit murder.
The issue before the court in this litigation is: What test of provocation gives effect to the legislative gradation of homicide, on the basis of the moral blameworthiness of the defendant ?
The majority would retain the “ordinarily constituted man” or the “reasonable man” test of provocation. Yet critical issues in the administration of even this test remain *301unanswered. The “reasonable man” concept in the law generally has two distinct meanings. There is the statistical concept under which the reasonable man does what most people do in fact under the circumstances. Yet if this is the meaning of the test, it is clear that as a matter of fact a great majority of people will never commit murder no matter how violently provoked by another. A consistent application of this test, viewing the reasonable man as the statistical factual norm would, in effect, read sec. 940.05 (1), Stats., out of existence.
However, in other contexts, there is the ethical concept under which the reasonable man functions as the person the law expects everyone to be, regardless of whether a majority, in fact, fall short of the moral norm in actual conduct. To take this view of the reasonable man for the purposes of the provocation test would propel courts and juries into the strange task of deciding when a person, taken as the ethical ideal, would commit murder. This may well result in reading sec. 940.05 (1), Stats., out of existence. The person we expect people to be like would not likely solve his problems by murder. If we conclude that an ethical ideal — that person whom all others aspire to emulate — would be driven to kill under the circumstances of a given case, logically the verdict should be not guilty, not morally blameworthy to any degree. Again, manslaughter, as conduct less blameworthy than nonprovoked intentional killing but not guiltless, is practically eliminated from the code.
This analysis brings me to the heart of my disagreement with the majority. The objective, the “ordinarily constituted man” or the “reasonable man” test leads juries and courts into inquiries which are not relevant to the issue at hand. In assessing the manslaughter defense to a charge of a more serious homicide, we are not concerned with how most people would act under the circumstances of the case, nor *302are we concerned with what the defendant “ought” to have done comparing him with the morally ideal response under the circumstances. The “ought” question is answered by the presence of sec. 940.0S (1), Stats. The manslaughter defense assumes that the defendant is morally blameworthy to some degree. The basic question is whether he is as culpable as a person who kills solely for self-aggrandizement or out of sheer malevolence. To answer this question, we must place ourselves empathetically in the actual situation in which the defendant was placed, a situation which may be relatively unique. Therefore, an inquiry into what most people would do in such circumstances cannot be completely determinative of the issue. The test cannot be wholly objective or wholly subjective. A person may become filled with murderous hate for another which can be discharged only by acting out the feeling and killing that person. The victim’s conduct, in relation to the defendant, from the point of view of most people, may have been neutral if not benign. The sheer intensity of the defendant’s hostile feeling cannot alone justify the manslaughter verdict. The victim’s conduct must be such that we conclude that the feeling and conduct of the defendant can be understood sympathetically, albeit not condoned. The trier of fact must be able to say, “although I would have acted differently, and I believe most persons would have acted differently, I can understand why this person gave way to the impulse to kill. He is different from the person who kills for personal gain alone.”
To come to this judgment, the trier of fact must focus upon the defendant’s total life experience in relation to the victim, and attempt to understand, in emotional as well as cognitive terms, the defendant’s feelings toward the victim. Under the wholly objective test, the defendant’s state of mind immediately before the act of homicide, and the victim’s conduct at this precise moment, are the crucial objects of inquiry. Although the majority notes that the prior ex*303perience of the defendant and victim m relation to one another is relevant to the state of mind of the defendant at the moment of the homicide, the objective test shifts the focus of inquiry in a manner which is misleading. The total life experience of the defendant in relation to the victim determines the justification of the lesser verdict. As the. majority notes, the act of homicide may be the culmination of a pattern of pressures of long duration. That the defendant may have been less angry with the victim at the moment of murder than at some time in the past (when he checked the impulse to kill) is irrelevant, if the trier of fact can conclude that, given the total experience of the defendant with the victim, the act of violence can be understood in terms which lessen the defendant’s blameworthiness.
The instances in which the issue of manslaughter or a more serious offense is sharply posed, are relatively predictable. Outside of murder for personal gain or murder by organized criminals, most homicides involve one family member killing another, against a background of personal insult, humiliation, and bullying, such as is present in the instant case. It is important that the legal standards defining the dimensions of the crime and defenses and thereby determining the relevancy and probative worth of lines of evidence and modes of argument, focus the attention of the trier of fact upon the basic issues. By providing gradations of intentional homicide, the legislature has announced that not all persons who consciously and purposively kill another are equally blameworthy. Some person’s act of homicide can be understood as a very human response to a desperate condition.
The wholly objective ordinarily constituted man test, by failing to take account of the emotional dimensions of a concrete individual’s specific situation, fails, in my view, to define sharply the issue posed by the legislatively provided manslaughter defense.
*304The provocation test formulated in the Model Penal Code of the American Law Institute, I believe, gives proper weight to all relevant factors. It is neither wholly objective or wholly subjective. Under the Model Penal Code, a homicide which would be ordinarily first or second-degree murder will be deemed manslaughter if “committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” 5
This test would enable the trier of fact to evaluate the defendant’s conduct in a specific situation. The trier of fact is called upon to determine a degree of blameworthiness. This task cannot be accomplished by means of either a wholly objective or wholly subjective test. The Model Penal Code formulation permits the trier of fact to decide “whether the actor’s loss of self-control can be understood in terms that arouse sympathy enough to call for mitigation in the sentence.” 6 This is the critical issue surrounding the manslaughter defense. I would adopt the Model Penal Code formulation as the test of provocation under sec. 940.05 (1), Stats.
Although I would prefer the adoption of the test set forth herein in connection with the submission of an alternative manslaughter verdict, even with the rejection of this suggested test I concur with the opinion of the majority that it was error not to submit the alternative verdict of manslaughter and that this error constitutes one reason for granting a new trial.
*305THE CONFESSION.
Scope of Review and Role of Judge and Jury.
The majority’s disposition of this issue implicitly raises certain procedural and administrative issues dealing with the relationship between jury, trial court, and appellate court, which should be explicitly resolved. Specifically, what is the scope of review by this court of a trial court’s determination that a given confession was made voluntarily, and in what respect does a jury’s evaluation of a confession differ from that of a trial court ?
As to the first question, as the majority states, in determining whether a confession was coerced, and its admission into evidence against a defendant was therefore a denial of the Fourteenth amendment due process, this court must apply federal constitutional law. Under federal law the resolution of this question is a three-stage process involving a variable scope of review on at least two of the stages.7
1. The historical physical facts surrounding the interrogation must be determined. On these matters, the appellate court is bound by the trial court’s findings if supported by credible evidence. Direct conflicts in testimony must be resolved in favor of the view which supports the trial court’s determination of voluntariness or involuntariness.
2. The defendant’s psychological response to these physical facts must be determined. To be admissible, the confession must be the product of a “free and unconstrained will.” 8 Whether the defendant voluntarily made the confession is a matter of fact. However, it is a question of “constitutional” fact which must be independently deter*306mined by this court.9 A finding of voluntariness is a necessary condition of the use of a confession as evidence by the state, as a matter of federal constitutional law.
The scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court, or from jury to jury. Reasonable men can differ as to whether a given confession was voluntary. Whatever the ultimate substantive dimension of these rights might be, they must be uniform throughout the jurisdiction. This can be accomplished only if one decision maker has the final power of independent determination. It is the task of this court to determine the voluntariness of a confession by applying certain standards articulated by the United States supreme court to the facts of the given case.
3. The application of these standards, outlined in the cases cited by the majority, to the given facts is the third stage of the process.
This three-stage process is implicit in the majority’s disposition of this case. For the sake of future guidance to trial courts, I would simply urge that the analysis be made express.
The trial court and the jury have distinctly different tasks in evaluating a confession. The trial court must determine competency, the jury determines probative value. The trial court determines voluntariness (not trustworthiness) in terms of the Fourteenth amendment standards defined by the United States supreme court. This determination is a precondition of admissibility. Its conclusion is a determination of law appealable by either party.
The jury, on the other hand, must assign probative value to the confession as evidence. A voluntarily given confes*307sion may be wholly false. The emotionally disturbed person who “confesses” to a crime he did not commit is an illustration. Although those factors affecting the voluntariness do also affect weight, the two concepts are not coextensive. The probative weight of the confession has no bearing on its voluntariness under the standards articulated by the supreme court. Conversely, as noted above, voluntariness though relevant is not determinative of weight. Therefore, the trial court- should instruct the jury that their only task is to consider weight, and they may consider voluntariness only as it affects probative value.
What Determines Voluntariness of Confession?
What then are the standards by which the voluntariness of a confession may be assessed? The United States supreme court has identified certain factors, which while not in themselves determinative, in combination lead to the ultimate conclusion of coercion or voluntariness. What is needed is a consistent rationale for confession cases which demonstrates the relevance, possible weight, and interrelationship of various factors, and provides a systematic basis for reasoned application of these standards to concrete fact situations. The majority offers a manifestly reasonable and perceptive analysis of United States supreme court decisions, suggesting that the highest court has approached the concept of extending the Fifth amendment privilege against self-incrimination at trial to certain proceedings in advance of trial, including confessions. While this analysis can reasonably account for many United States supreme court decisions, I feel an alternative and broader approach is more consistent with the articulated basis of decision in many of these cases. Choosing an alternative approach necessarily means that I emphasize different factors than the majority in coming to the same conclusion that Dona Hoyt’s confession was coerced.
*308The essence of the United States supreme court’s approach to confession cases, in my view, lies in the following statement:
“Our decisions under that Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — » a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.” 10
If a confession is to be the product of the free and unconstrained will of the defendant it is important that under the totality of circumstances in which the confession is obtained, the defendant is not the victim of a conspicuously unequal confrontation in which the pressures brought to bear on him by representatives of the state exceed the defendant’s ability to resist.
On the resistance side of the equation, the following factors become relevant: the defendant’s age,11 mental ability,12 education, and emotional condition at the time of interrogation,13 and prior experience with the police.14 On the pressure side, the length of interrogation,15 use of *309extreme psychological or physical pressure,16 e.g.., depriving the defendant of sleep,17 have been deemed relevant. In any given case, the final result involves a comparison of pressure with resistance.
In the instant case, the fact that Dona Hoyt was interrogated throughout the night, without being given an opportunity to rest though she requested it, when she was clearly emotionally vulnerable as a result of her recent violent experience (and where the state already had admissions from her on every important point concerning her offense), leads me to the conclusion that the confession was not the product of a free and unconstrained will.
My reason for concluding that her confession was coerced under the totality of circumstances surrounding her confession is well described by the United States supreme court in holding a confession involuntary in the case of Haynes v. Washington, supra, at page 519:
“Official overzealousness of the type which vitiates the petitioner’s conviction below has only deleterious effects. Here it has put the State to the substantial additional expense of prosecuting the case through the appellate courts and, now, will require even a greater expenditure in the event of retrial, as is likely. But it is the deprivation of the protected rights themselves which is fundamental and the most regrettable, not only because of the effect on the individual defendant, but because of the effect on our system of law and justice. Whether there is involved the brutal ‘third degree,’ or the more subtle, but no less offensive, methods here obtaining, official misconduct cannot but breed disrespect for law, as well as for those charged with its enforcement.”
*310My objection to the majority analysis is that it looks to the pressure side of the equation alone, and suggests that interrogation after counsel has urged silence in and of itself may be sufficient to exclude a resulting confession. I do not agree with the majority’s conclusion that Dona Hoyt was denied a federal constitutional right in this respect, especially since the United States supreme court has expressly held that total denial of any contact by the defendant with counsel by the police during interrogation does not in and of itself render a confession coerced, if the defendant had sufficient ability to resist pressure without aid of counsel at this point.18
“940.05 Manslaughter. Whoever causes the death of another human being under any of the following circumstances may be imprisoned not more than 10 years: (1) Without intent to kill and while in the heat of passion; or . . .”
Sec. 940.01 (2), Stats.
Judiciary Committee Report on the Criminal Code (1953), 58.
Wisconsin Valley Improvement Co. v. Public Service Comm. (1959), 7 Wis. (2d) 120, 95 N. W. (2d) 767; Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N. W. (2d) 514, 55 N. W. (2d) 40.
Platz, The Criminal Code, 1956 Wisconsin Law Review, 350, at page 370.
Model Penal Code, p. 126 sec. 210.3(1) (b) (Official Draft, 1962).
Model Penal Code, Comment, p. 48 (Tentative Draft No. 9, 1959).
Culombe v. Connecticut (1961), 367 U. S. 568, 81 Sup. Ct. 1860, 6 L. Ed. (2d) 1037.
Haynes v. Washington (1963), 373 U. S. 503, 514, 83 Sup. Ct. 1336, 10 L. Ed. (2d) 513.
Culombe v. Connecticut, supra. See also Manual Enterprises, Inc., v. Day (1962), 370 U. S. 478, 488, 82 Sup. Ct. 1432, 8 L. Ed. (2d) 639: “That issue [whether a publication is ‘obscene’], involving factual matters entangled in a constitutional claim . . . is . . . one for this Court. The relevant materials being before us, we determine the issue for ourselves.”
Rogers v. Richmond (1961), 365 U. S. 534, 540, 81 Sup. Ct 735, 5 L. Ed. (2d) 760.
Gallegos v. Colorado (1962), 370 U. S. 49, 82 Sup. Ct. 1209, 8 L. Ed. (2d) 325.
Culombe v. Connecticut, supra. See also Crooker v. California (1958), 357 U. S. 433, 78 Sup. Ct. 1287, 2 L. Ed. (2d) 1448.
Blackburn v. Alabama (1960), 361 U. S. 199, 80 Sup. Ct. 274, 4 L. Ed. (2d) 242.
Lynumn v. Illinois (1963), 372 U. S. 528, 83 Sup. Ct. 917, 9 L. Ed. (2d) 922.
Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.
Brown v. Mississippi (1936), 297 U. S. 278, 56 Sup. Ct. 461, 80 L. Ed. 682. Leyra v. Denno (1954), 347 U. S. 556, 74 Sup. Ct. 716, 98 L. Ed. 948.
Chambers v. Florida (1940), 309 U. S. 227, 60 Sup. Ct. 472. 84 L. Ed. 716.
Crooker v. California, supra.