¶ 102. {concurring in part and dissenting in part). I join the majority opinion with respect to the discussion of the "Blum *204issue" at ¶¶ 91-94. I dissent from the rest of the opinion relating to the Miranda issue.
¶ 103. As the majority notes with regard to the Miranda issue, "[t]he present case is like a law school exam question." Majority op., ¶ 47. The case presents a fact situation not previously faced by this court or, as best I can determine, by any other court. The members of this court, like law students, have to reach a decision on the basis of past cases (not directly on point), constitutional principles, and pragmatic concerns.
¶ 104. Here are the basic facts: During an initial interrogation, after receiving the first Miranda warnings, Stevens invoked his Fifth Amendment right to counsel. The questioning stopped — as it should. Shortly thereafter, Stevens expressed interest in cancelling his invocation of the right to counsel and in resuming discussion with the detective. He had the right to do so. Stevens was placed in a cell. Several hours passed before a law enforcement officer returned to talk with Stevens. During this several-hour hiatus, Stevens' attorney arrived at the police station. The police officers failed to inform Stevens of his attorney's arrival and refused to allow the attorney to see Stevens. When the law enforcement officers returned to talk with Stevens, Stevens was given the Miranda warnings, waived his rights, and made statements that he now seeks to suppress.
¶ 105. This court must determine whether the law enforcement officers violated the Fifth Amendment when they failed to inform Stevens of his attorney's arrival after Stevens expressed interest in cancelling his invocation of his right to counsel but before he received a second Miranda warning and waived his right to counsel. In other words, does a suspect's initiation of conversation with law enforcement officers *205after the suspect invokes the right to counsel constitute a waiver of the right to counsel in the absence of a second Miranda warning?1
¶ 106. The facts of the present case differ from prior cases. As the majority acknowledges, this case is distinguishable from Moran v. Burbine, 475 U.S. 412 (1986), State v. Hanson, 136 Wis. 2d 195, 401 N.W.2d 771 (1987), and State v. Ward, 2009 WI 60, 318 Wis. 2d 301, 767 N.W.2d 236. In these cases, the suspects never explicitly invoked their right to counsel while in custody. Majority op., ¶ 70. For the same reason, the present case is distinguishable from State v. Middleton, 135 Wis. 2d 297, 399 N.W.2d 917 (Ct. App. 1986), which seems to play a major role in the majority opinion.
¶ 107. With regard to the fact situations presented by Moran, Hanson, Ward, and Middleton, I agree with the majority opinion that the United States Supreme Court and this court have held that a suspect who has not invoked the right to counsel does not have the right to be informed that counsel who intends to represent the suspect is available to speak with the suspect, and counsel need not be given the opportunity to speak with the suspect.
¶ 108. With regard to the different fact situation presented in the instant case, I disagree with the majority. Unlike the majority, I conclude that Stevens' Fifth Amendment rights were violated. My conclusion, like the majority's to the contrary, is driven by a synthesis of principles derived from federal and state case law. My conclusion is also driven by the federal and state consti*206tutional provisions enshrining the right against self-incrimination (including the right to counsel during custodial interrogation) and by the pragmatic need to minimize the grave personal and societal harms flowing from the impairment of these rights. The line between encouraging voluntary, true confessions and coercing confessions, whether true or false, is narrow. Today's majority is all too willing to ignore that line.2
I
¶ 109. The majority appears to acknowledge, and I agree, that once a suspect has invoked the right to counsel, not only must interrogation cease, but the suspect also has a right to be informed that an attorney has arrived at the station to speak with him. Majority op., ¶¶ 67-70. The United State Supreme Court declared in Miranda v. Arizona, 384 U.S. 436 (1966), that once a suspect invokes his or her right to counsel, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning."3 Miranda thus provides that a *207suspect has two rights to counsel: (1) The right to consult with counsel prior to questioning; and (2) the right to have counsel present during any questioning.4
¶ 110. According to the majority opinion, law enforcement did not have to inform Stevens that his attorney had arrived because Stevens "cancelled" his request for counsel. And how did Stevens cancel his invocation of his right to counsel? According to the majority opinion at ¶ 4, Stevens "cancelled his invocation of that right by initiating a dialogue in which he asked to continue the interrogation." See also majority op., ¶ 74. The majority explains that Stevens' "cancellation of the request for counsel was confirmed by the fact that Stevens made no effort to secure counsel while his interrogator was absent, by his recorded agreement that he initiated the conversation asking to resume questioning, and by his waiver of the right to counsel after receiving a second Miranda warning." Majority op., ¶ 4.
¶ 111. In the present case, counsel appeared at the police station before Stevens "confirmed" his cancellation of his invocation of the right to counsel. Stevens' counsel appeared at the police station asking to see Stevens before Stevens waived his right to counsel after the second Miranda warning. Majority op., ¶¶ 19, 73-74. As I explain below, the majority's conclusion that Stevens lost the rights he had gained by invoking the right to counsel merely by initiating conversation with the police, as opposed to both initiating conversation with the police *208and knowingly, intelligently, and voluntarily waiving the right to counsel, is not compelled by precedent.
¶ 112. I conclude that Stevens' invocation of his right to counsel during interrogation lasted until he knowingly, intelligently, and voluntarily waived that right. In this case, Stevens' only effective waiver came after the second Miranda warning. Stevens' waiver of counsel came after Stevens' counsel appeared at the police station to speak with Stevens. I therefore conclude that Stevens' Fifth Amendment right to counsel was violated when law enforcement failed to advise Stevens that counsel was available to speak with him.
¶ 113. My conclusion is supported by the United States Supreme Court's decision in Oregon v. Bradshaw, 462 U.S. 1039 (1983). In Bradshaw, eight justices (the four in the plurality and the four in dissent) agreed that in order for the interrogation of a suspect to continue without counsel once the suspect has invoked his or her right to counsel, two requirements must be met: (1) the suspect must, on his or her own accord, reopen dialogue with his interrogators; and (2) the suspect must again knowingly, intelligently, and voluntarily waive his Miranda rights.5
¶ 114. According to eight justices in Bradshaw, the suspect's mere initiation of conversation with law enforcement does not suffice to show a waiver of the previously asserted right to counsel. Rather, two steps *209must be analyzed before the suspect loses the rights he gained by invoking the right to counsel: the initiation step and the waiver step.6
¶ 115. I recognize that the present case is not governed precisely by Bradshaw. In Bradshaw, the Court did not address the right of a suspect to be informed of an attorney's arrival. I do not claim that Bradshaw is on all fours with the present case. Nevertheless, Bradshaw is instructive and supports my conclusion.
¶ 116. Bradshaw addressed one of the rights gained by invoking the right to counsel — the right not to be subjected to further interrogation — and held that the right stays with the suspect until the suspect initiates further conversation and the police obtain a *210knowing, intelligent, and voluntary waiver by giving the suspect a Miranda warning.7
¶ 117. The present case addresses another right gained by a suspect who invokes the right to counsel— the right to be informed of an attorney's arrival at the station. To be consistent with Bradshaw, this court should hold that this right, like the right not to be subjected to further interrogation, stays with the suspect until the suspect initiates further conversation and the police obtain a knowing, intelligent, and voluntary waiver.
¶ 118. Bradshaw teaches that a suspect does not automatically waive his Fifth Amendment right to counsel by simply initiating a conversation regarding the investigation.8 A suspect's cancellation of his Fifth Amendment right to counsel (after having invoked the right to counsel) requires a two-prong analysis. Separate inquires must be made and both prongs must be satisfied before the suspect loses the rights he gained by invoking the right to counsel.9
¶ 119. This court followed the Bradshaw two-prong analysis for continuation of interrogation of a suspect who has invoked his Fifth Amendment right to *211counsel. In State v. Hambly10 the court held that after a suspect effectively invokes his Fifth Amendment Miranda right to counsel, the State must meet two criteria to renew interrogation:
(A) The State has the burden to show that the suspect initiated further conversation with law enforcement.
(B) The State has the burden to show that the suspect waived the right to counsel voluntarily, knowingly and intelligently; that is, the waiver of counsel must be a knowing, intelligent, and voluntary waiver of a known right.11
¶ 120. In Hambly, as in the present case, the first criteria was satisfied. The Hambly court then examined the facts to determine whether Hambly's waiver of his right to counsel after the second Miranda warnings were given was knowing, intelligent, and voluntary.12
¶ 121. In the present case, when Stevens initiated conversation with the detective shortly after invoking his right to counsel, according to the law enforcement officer, Stevens said that "it was his [Stevens'] intention once again to waive his right to an attorney." See majority op., ¶¶ 18, 71. Stevens is not quoted as, or treated as, knowingly, intelligently, and voluntarily waiving his right to counsel at the moment when he initiated conversation with law enforcement officers.
¶ 122. The majority opinion does not assert that Stevens' initiation of conversation with the law enforcement officer was a valid waiver of his right to counsel. The majority opinion does not claim that Stevens *212waived his right to counsel before he was given the second Miranda warning. Nothing in the record establishes that Stevens knowingly, intelligently, and voluntarily waived his right to counsel before he was given the second Miranda warning.
¶ 123. Thus when Stevens' attorney arrived at the police station before the second Miranda warnings were given, Stevens had not yet effectively cancelled his invocation of the right to counsel.
¶ 124. The majority opinion incorrectly treats Stevens' initiating communications with law enforcement as a per se cancellation of his earlier invocation of the right to counsel. Stevens' initiating communications with law enforcement did not, in and of itself, constitute a knowing, intelligent, and voluntary waiver of the previously invoked right to counsel. Initiating conversation with law enforcement simply made it possible for there to be a subsequent knowing, intelligent, and voluntary waiver of the right to counsel.
¶ 125. The record demonstrates that the police did not obtain a knowing, intelligent, and voluntary waiver of the right to counsel until after Stevens' counsel appeared at the police station. Therefore, during the interval between Stevens' initiating conversation with the police and the second Miranda warning, Stevens' invocation of the right to counsel was still in existence and he had a right to be informed that his attorney had arrived and to consult with his attorney if he wished to do so. This right was violated in the present case.
¶ 126. The majority does not apply the principles of Bradshaw and Hambly to the present case. The majority treats a suspect's initial invocation of the Fifth Amendment right to counsel as a nullity once the suspect initiates conversation with law enforcement. The majority has no authority to support this thesis. The majority *213pieces together snippets from case law not addressing the issue presented in the instant case to support its conclusion that we may treat the invocation of the right to counsel as if it never occurred because the defendant merely initiated conversation with law enforcement.
¶ 127. The majority complains that my dissent "transform [s] Bradshaw into a rule that an accused's invocation of the Fifth Amendment right to counsel remains completely intact, no matter what the accused says to withdraw or cancel that invocation, until he is given and waives a second Miranda warning." Majority op., ¶ 52 n.9. The majority misstates my position.
¶ 128. My position is that a suspect's invocation of the Fifth Amendment right to counsel remains intact until (1) the suspect, on his or her own accord, reopens dialogue with the interrogators, and (2) the suspect knowingly, intelligently, and voluntarily waives his or her Miranda rights. See ¶¶ 112-117, supra. This interpretation of Bradshaw and application of Bradshaw to the present case properly recognizes the sanctity of a suspect's invocation of the right to counsel and the crucial importance of a knowing, intelligent, and voluntary waiver of that right.
¶ 129. It seems likely that a suspect's initiation of conversation will usually be followed almost immediately by the interrogators' obtaining a knowing, intelligent, and voluntary waiver of the right to counsel from the suspect (typically by administering Miranda warnings). In the present case, however, there was a significant gap between the suspect initiating conversation and the suspect knowingly, intelligently, and voluntarily waiving the right to counsel. The waiver did not occur until hours later (after counsel had arrived at the station) when the second Miranda warnings were given.
*214¶ 130. Thus, I conclude that Stevens' statements during the second custodial interrogation were obtained in violation of Miranda, Edwards, and Bradshaw, and should have been suppressed. As I see it, precedent more strongly commands the outcome I urge than the outcome the majority reaches.
II
¶ 131. In addition to precedent, my conclusion is supported by the historical importance of the protections offered by the Fifth Amendment and the longstanding tradition of protecting the Fifth Amendment right to counsel, once invoked, with particular vigilance.
¶ 132. The Fifth Amendment embodies the privilege against self-incrimination, which is "the essential mainstay of our adversary system."13 "[0]ur accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth."14 Because of its fundamental importance, "the privilege has consistently been accorded a liberal construction."15
¶ 133. In order to honor fully the privilege against self-incrimination, Miranda requires police to inform suspects of both the right to silence and the right to counsel, among other things, before custodial interrogation may occur. Miranda, 384 U.S. at 479. Although the right to silence is a crucial element of the privilege against self-incrimination, the Supreme Court has con*215firmed that "additional safeguards are necessary when the accused asks for counsel."16
¶ 134. This court should interpret and apply the Fifth Amendment and the relevant precedent with the goal of maintaining, rather than shrinking, the Fifth Amendment right to counsel. Consistent with the United States Supreme Court's declaration in Miranda, this court should construe precedent in favor of protecting the right to counsel. The majority fails at this task.
Ill
¶ 135. The third reason for my conclusion is the pragmatic concern that underlies the right to counsel *216and justifies treating an invocation of the right to counsel with great respect.
¶ 136. Although the United States Supreme Court has stated that voluntary confessions are " 'an unmitigated good,' essential to society's compelling interest in finding, convicting, and punishing those who violate the law,"17 the Court has also recognized that "the pressure of custodial interrogation is so immense that it 'can induce a frighteningly high percentage of people to confess to crimes they never committed.' "18 The presence of counsel is a safeguard against the possibility of false confessions.
¶ 137. When a false confession leads to a wrongful conviction, not only is the wrongfully convicted person harmed, but so is society. A wrongful conviction enables the guilty person to evade capture and commit more crimes. A wrongfully imprisoned individual costs the taxpayers substantial sums of money for trial, incarceration, and later exoneration in some cases.
¶ 138. False confessions are, unfortunately, unexceptional. Almost a quarter of the approximately 2,000 exonerations studied in a 2012 report involved a defendant who either falsely confessed or was falsely accused by a co-defendant who confessed.19 According to recent data from the Innocence Project, approxi*217mately 25 percent of wrongful convictions overturned by DNA evidence in the United States have involved some form of false confession.20 Wisconsin is not immune to the risk of false confessions and false convictions.21
¶ 139. For the reasons discussed above, I conclude that the majority errs in its application of the Fifth Amendment in the present case.
IV
¶ 140. In any event, even if I agreed with the majority's Fifth Amendment analysis, which I do not, I would rely on the Wisconsin Constitution to reach a different result. As I noted in my dissent in Hanson, the United States Supreme Court in Moran v. Burbine, 475 U.S. at 428, expressly invited the states to promulgate their own rules governing the conduct of their police officers to protect the individual rights of citizens.22 Wisconsin should accept that invitation.
¶ 141. As Justice Crooks noted in his dissent in Ward and as I noted in Hanson, we have serious concerns about the United States Supreme Court's *218decision in Moran. The majority decisions in Hanson and Ward unfortunately provide an opportunity, and perhaps even an incentive, for law enforcement officers to prevent individuals from meaningfully exercising the Fifth Amendment right against self-incrimination and the Fifth Amendment right to counsel during custodial interrogation.
¶ 142. Like United States Supreme Court Justice John Paul Stevens' dissenting opinion in Moran, I conclude that allowing law enforcement officers to withhold from a suspect the fact that an attorney has arrived or to deceive a suspect's attorney places the choice of whether an attorney will be present during questioning in the hands of the law enforcement officers, not the individual being questioned. This outcome flies in the face of the Fifth Amendment protections that Miranda was meant to enforce.23
¶ 143. This court should reconsider its prior decisions regarding the obligation that law enforcement officers have to keep suspects informed of an attorney's availability. This court should join the many state courts that have rejected the United States Supreme Court's Moran decision and granted more robust constitutional protections to their people under their state constitutions or laws.24
*219¶ 144. For the reasons stated, I write separately.
The majority states the issue as follows: "[T]he critical issue is whether Stevens' invocation of the right to counsel. . . survived his almost immediate initiation of conversation with his interrogator in which he emphatically asked to resume the questioning. ..." Majority op., ¶ 58.
As I explain in Part iy below, even if I agreed with the majority's Fifth Amendment analysis, I would conclude that the Wisconsin Constitution warrants a different result.
Miranda v. Arizona, 384 U.S. 436, 474 (1966).
The Seventh Circuit's decision in Middleton v. Murphy, No. 92-1498, unpublished slip op. (7th Cir. June 21, 1993) also indirectly supports the proposition that a suspect who has invoked the right to counsel must be informed that an attorney has arrived. The district court (whose opinion was attached to the Seventh Circuit's decision) stated that "[b]ecause petitioner did not invoke his right to counsel when he called his wife, and then waived the right when he was given his Miranda warnings, the interrogating officers were not required to inform him when the lawyer arrived at the station." Middleton, No. *20792-1498, unpublished slip op. at 7 (7th Cir. June 21, 1993) (emphases added). The converse is also true: If the petitioner did invoke his right to counsel and had not yet waived that right, the interrogating officers were required to inform him that his lawyer had arrived.
Miranda, 384 U.S. at 470; Florida v. Powell, 130 S. Ct. 1195, 1206 (2010).
See Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality opinion); Bradshaw, 462 U.S. at 1054 n.2 (Marshall, J., dissenting).
"The only dispute between the plurality and the dissent in this case concerns the meaning of 'initiation' for purposes of Edwards' per se rule." Bradshaw, 462 U.S. at 1054 n.2 (Marshall, J., dissenting).
The plurality and dissenting justices agreed on this point.
As the plurality in Bradshaw stated, the lower court "was wrong in thinking that an 'initiation' of a conversation or discussion by an accused not only satisfied the Edwards rule, but ex proprio vigore suffices to show a waiver of a previously asserted right to counsel. The inquiries are separate, and clarity of application is not gained by melding them together." Bradshaw, 462 U.S. at 1045.
The dissenting justices in Bradshaw agreed, stating: "If an accused has himself initiated further communication with the police, it is still necessary to establish as a separate matter the existence of a knowing and intelligent waiver under Johnson v. Zerbst, 304 U.S. 458, 464 (1938)." Bradshaw, 462 U.S. at 1054 n.2 (Marshall, J., dissenting).
The majority opinion refers to Oregon v. Bradshaw, 462 U.S. 1039 (1983) in ¶ 52. The majority explains Bradshaw as follows: "When the accused initiates communication with police, the paradigm is reset and police may explore whether the accused is willing to answer questions. They may proceed with custodial interrogation if the accused again is given a Miranda warning and again waives his Miranda rights."
"[T]he question would be whether a valid waiver of the right to counsel... had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Bradshaw, 462 U.S. at 1045 (quoting Edwards v. Arizona, 451 U.S. 477, 486 n.9 (1981).
Bradshaw, 462 U.S. at 1044.
The majority alludes to the two required steps under Bradshaw and Hanson at ¶¶ 52 and 74.
See State v. Hambly, 2008 WI 10, ¶¶ 69-70, 307 Wis. 2d 98, 745 N.W.2d 48.
Hambly, 307 Wis. 2d 98, ¶¶ 68-70.
Id., ¶¶ 98, 99.
Miranda, 384 U.S. at 460.
Id.
Id. at 461.
Edwards v. Arizona, 451 U.S. 477, 484 (1981).
See also Fare v. Michael C., 442 U.S. 707, 719 (1979):
Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.
At least one state has held that once a suspect invokes the right to counsel, he is incapable of waiving that right outside the presence of counsel. See People v. Cunningham, 400 N.E.2d 360 (N.Y. 1980).
The importance of the right to counsel in Wisconsin is evidenced by our legislature's criminalizing the denial of access to an attorney for a person in custody in certain situations. See Wis. Stat. § 946.75 ("Whoever, while holding another person in custody and if that person requests a named attorney, denies that other person the right to consult and be advised by an attorney at law at personal expense, whether or not such person is charged with a crime, is guilty of a Class A misdemeanor."). Wisconsin Stat. § 946.75 is not implicated by the facts of record in the present case.
Maryland v. Shatzer, 130 S. Ct. 1213, 1222 (2010) (quoting McNeil v. Wisconsin, 501 U.S. 171, 181 (1991)).
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2401 (2011) (quoting Corley v. United States, 556 U.S. 303, 321 (2009) (citing Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 906-07 (2004))) (citing Miranda, 384 U.S. at 455 n.23).
See Saumel R. Gross & Michael Shaffer, National Registry of Exonerations, Exonerations in the United States, 1989-2012 41 (2012).
See Innocence Project, False Confessions & Recording of Custodial Interrogations, available at http://www.innocence project.org/Content/False_ Confessions_Recording_Of_Custodial_Interrogations.php (last visited June 29, 2012).
Of 891 individual exonerations listed by the 2012 study, Wisconsin had the eighth highest number of any state, with 21 exonerations. Saumel R. Gross & Michael Shaffer, National Registry of Exonerations, Exonerations in the United States, 1989-2012 35 (2012).
State v. Hanson, 136 Wis. 2d 195, 220, 401 N.W.2d 771 (1987) (Abrahamson, J., dissenting) (citing Moran v. Burbine, 475 U.S. 412, 428 (1986)).
Moran, 475 U.S. at 453 (Stevens, J., dissenting).
See, e.g., State v. Stoddard, 537 A.2d 446, 452 (Conn. 1988) ("[A] suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance."); Bryan v. State, 571 A.2d 170, 176 (Del. 1990) ("[A] purported waiver can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice."); People v. McCauley, 645 N.E.2d 923, 930 (Ill. 1994) ("[W]hen police, prior to or during custodial interrogation, refuse an attorney appointed or retained to assist a *219suspect access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has not been informed that the attorney was present and seeking to consult with him." (quoted source omitted)); State v. Reed, 627 A.2d 630, 643 (1993) ("[Wjhen, to the knowledge of the police, such an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue." (quoted source omitted)); West v. Commonwealth, 887 S.W.2d 338, 343 (Ky. 1994) ("[T]here is no logical basis for distinguishing between an attorney requested by an accused and an attorney requested, as in this case, by a family member on behalf of the accused .. .."); People v. Bender, 551 N.W.2d 71, 79 (Mich. 1996) ("[I]n order for a defendant to fully comprehend the nature of the right being abandoned and the consequences of his decision to abandon it, he must first be informed that counsel, who could explain the consequences of a waiver decision, has been retained to represent him."); Dennis v. State, 990 P.2d 277, 286 (Okla. Crim. App. 2001) ("[C]ommon sense and fundamental fairness suggest the fact of the attorney's presence is important information a suspect would use in determining whether to waive or invoke his rights."); Commonwealth v. Mavredakis, 725 N.E.2d 169, 179 (Mass. 2000) ("When an attorney identifies himself or herself to the police as counsel acting on a suspect's behalf, the police have a duty to stop questioning and to inform the suspect of the attorney's request immediately."); State v. Roache, 803 A.2d 572, 579 (N.H. 2002) ("[I]nterrogating officers have a duty to stop questioning the suspect and inform the suspect that the attorney is attempting to contact him or her.").