dissenting.
I would affirm the trial court’s determination that defendant did not intentionally waive his right to counsel before he made the incriminating statements in dispute here. Accordingly, I dissent.
Our nation’s debate regarding the decision in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), is now over thirty years old.1 Miranda is not a *343state law decision but this court has relied on that case to determine the content of state law regarding police interrogations. For example, in determining what procedural safeguards are necessary to protect the right of a person suspected of crime, under Article I, section 12, of the Oregon Constitution, not to be compelled to testify against himself in a criminal prosecution, this court has held repeatedly that Miranda warnings are the procedural mechanism by which police officers must effectuate that state constitutional provision. See, e.g., State v. Sparklin, 296 Or 85, 88, 672 P2d 1182 (1983); State v. Mains, 295 Or 640, 645, 669 P2d 1112 (1983). As a result, settled state law requires police officers to deliver familiar warnings to a suspect at the commencement of an interrogation, and to scrupulously honor that person’s request for a lawyer, expressed at any time during the interrogation. “[W]e require the police to inform a detained person that he may terminate questioning at any time and that he may have an attorney to advise him before he speaks.” Sparklin, 296 Or at 89 (emphasis added).
In State v. Kell, 303 Or 89, 96, 734 P2d 334 (1987), this court, quoting the following passage of Miranda with *344approval, confirmed that a suspect may request a lawyer in any manner during a police interrogation. Miranda, 384 US at 444-45, states:
“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.” (Emphasis added.)
The suspect’s right to request a lawyer’s assistance in any manner during an interrogation is the starting point in the analysis of the issue posed by this case. Despite the clarity of that requirement, courts still face several difficult problems in resolving disputes arising from equivocal requests for counsel asserted during police interrogations. First, under current court interpretations of the right to counsel, police must honor that right only if the suspect invokes it. In the absence of a legally sufficient invocation, police may secure a suspect’s uncounseled incriminating statements even though the suspect has a lawyer, refers to the lawyer or a need for legal advice, and it is obvious to every police interrogator that the suspect needs to speak with a lawyer before speaking to the police.
Second, the courts have developed no simple, clear test for determining whether a suspect’s oral reference to a need for legal advice during a police interview amounts to an invocation of the right to counsel. The majority’s2 conclusion that the suspect must make an unequivocal request for a lawyer rests the effectuation of the suspect’s constitutional right *345on his or her ability to speak to police interrogators in assertive, definite terms and without pauses, questions, or conditions. Some suspects, and particularly those familiar with police interrogations, are familiar with those requirements and follow them without difficulty.3 Others, and especially women, members of some racial minority groups and the poorer, less-educated social classes, more often speak with authority figures in nonassertive, hedged speech patterns. Those groups commonly incorporate questions and other qualifications and conditions into their speech in order to avoid rudeness and to maintain respectful or friendly relationships with police officers.4 For many suspects in those groups, as well as other suspects who, because of their ignorance or fear, are unfamiliar with the procedures and pressures that sometimes accompany police interrogation, ambivalent invocations of the right to counsel seem to be the rule, not the exception.
Exacerbating the difficulty in determining whether a suspect’s reference to a lawyer matches the majority’s adjectival legal standard (i.e., an “unequivocal” invocation) is the fact that invocations, such as they are, commonly occur in isolated, unrecorded settings that require courts to reconstruct the suspect’s statements after-the-fact, most often *346from the recollections of police officers. Sophisticated interview strategies usually permit or encourage officers, in reacting to an ambivalent invocation, to solicit clarification of a suspect’s statements at length or to restate Miranda warnings and the consequences, some of which are negative, of an invocation of constitutional rights.5 If the suspect, in responding, conditions or qualifies the request for counsel, the interview continues uninterrupted because the suspect’s answer shows that the invocation was equivocal.6
The courts have taken three different approaches in addressing these problems surrounding a suspect’s ambiguous invocation of the right to counsel.7 The identified *347approaches are the “per se approach,” the “threshold of clarity approach,” and the “clarification approach.” Under the per se approach, followed in a minority of jurisdictions, police must cease questioning a suspect even though the suspect’s invocation of the right to counsel is ambiguous. The flaw in that approach is that it terminates police interviews needlessly, even though the suspect desires to continue.
Under the threshold of clarity approach, the police may disregard a request for counsel during an interview unless the request meets the court’s minimum standard of clarity or certainty. That standard treats the suspect’s ambiguous reference to a need for a lawyer during the interview as if it did not exist. Police operating under the threshold of clarity standard may disregard as a nullity a request for counsel that is accompanied by any question, condition, or qualification that renders the request ambiguous or equivocal.8
Finally, under the clarification approach that is the majority rule in most American jurisdictions, police must obtain clarification of an ambiguous invocation of the right to counsel before proceeding with an interview.9 That approach *348permits police to use simple questions to clarify the suspect’s true intention regarding continuing the interview without counsel and, thus, produces a more accurate understanding of whether the suspect’s statement was an invocation of the right to counsel.
“The majority of courts that have decided the question of the appropriate standard to use in assessing ambiguous or equivocal invocations of the right to counsel have chosen to take a third approach, adopting a rule that permits clarification of unclear assertions. This third approach charts a middle course between the other two standards, instructing police to respond to ambiguous assertions of the right to counsel by clarifying the suspect’s request. In contrast to the threshold-of-clarity standard, this clarification approach gives some legal effect to ambiguous or equivocal assertions of the right to counsel. Specifically, under the clarification standard, hedged assertions of the right to counsel that would be accorded no significance under the threshold-of-clarity standard may be given legally operative effect, limiting further police interrogation. On the other hand, unlike the per se invocation rule, which absolutely bars further police interrogation upon any assertion of the right to counsel, the clarification approach permits police to continue the interrogative exchange with the suspect after a less than clear invocation of the right to counsel. The ensuing police questioning is, at least in theory, limited solely to questions designed to clarify whether the suspect intended her ambiguous statements to invoke the Fifth Amendment right to assistance of counsel.”
Ainsworth, 103 Yale L J at 308-09 (footnotes omitted).
The majority begins its analysis by adopting the view of the Court of Appeals that defendant made an “equivocal” request for counsel when he announced, during the police interview, that if he needed a lawyer, he wanted one. I agree with that assumption. Whether defendant’s statement is labeled as “equivocal” or “ambiguous,” the court may construe it plausibly as an invocation of the right to counsel, but need not necessarily so construe it.10 What remained in doubt *349about defendant’s statement after he uttered it was not whether an objective listener reasonably could take the statement as an invocation, but whether defendant intended his imperfect expression to constitute an invocation of his rights.
The majority acknowledges, and I agree, that this court’s case law recognizes “the interrogating officers’ obligation * * * to clarify an equivocal invocation of the right to counsel * * 327 Or at 340 (citing State v. Charboneau, 323 Or 38, 55, 913 P2d 308 (1996); State v. Montez, 309 Or 564, 572-73, 789 P2d 1352 (1990)). That obligation aligns Oregon with the majority rule, discussed earlier, that requires use of the clarification approach by police in responding to ambiguous invocations of the right to counsel.
The majority next asks whether certain circumstances may obviate the officers’ duty to clarify the suspect’s intention, and answers that such circumstances may exist. Again, I agree.
The duty to clarify the suspect’s intention is rooted in common sense, not ceremony. The right to request counsel is personal to the suspect and may be invoked at any time and in any manner during interrogation. The objective of asking a clarifying question is to determine with certainty whether the suspect, by his ambiguous reference to counsel, actually intended to exercise his personal right to seek legal advice before proceeding with the interview. In the face of an ambiguous invocation, asking a clarifying question provides assurance that the “ ‘right to choose between speech and silence remains unfettered throughout the interrogation process.’ ” Connecticut v. Barrett, 479 US 523, 528, 107 S Ct 828, 93 L Ed 2d 920 (1987) (quoting Miranda, 384 US at 469). A helpful secondary effect of the duty is that it relieves police officers of the difficult burden of guessing whether a suspect’s statement was an unequivocal or merely ambiguous invocation and, thus, protects the admissibility of subsequent *350incriminating statements should the suspect choose to make them.
In view of the practical justifications for the clarification approach, not every invocation will require subsequent clarification through questions by the police. For example, no clarifying question is necessary if the suspect accompanies an ambiguous invocation with other statements, not prompted by police interrogation, that make it clear that the suspect did not intend to invoke the right to counsel, or that the suspect, despite the ambiguous invocation, desires to continue to interview without the assistance of counsel. In those circumstances, the suspect’s actual intention is not in doubt. If the suspect removes the doubt about his intention and asks to continue the interview without counsel present, it matters little that he does so spontaneously rather than in response to clarifying questions from the police.
The majority concludes that two aspects of defendant’s conduct during his interrogation clarified his ambiguous invocation of the right to counsel or, at least, obviated the need for clarifying questions. The first is defendant’s physical gesture with his hands that, according to the majority, “cut off further questions by the officers” and enabled defendant' to “assert[ ] control over the conversation * * 327 Or at 341.
That analysis, while dramatic, is not accurate. I agree that the officers have no duty to interrupt a suspect who desires, during an interview, to make a statement of the kind portrayed here. Notwithstanding defendant’s gesture with his hands and his brief oration, the officers had ample opportunity immediately after those actions to seek clarification of defendant’s earlier ambiguous reference to his desire for a lawyer. Defendant’s gestures and his assertion of a desire to say a few things to the officers do not make clear his intention in expressing a need for a lawyer.
The second aspect of defendant’s conduct concerns the substance of defendant’s statement to the police. The majority states that clarifying questions are unnecessary if the state can show “that the suspect had the requisite state of mind, viz., was willing to enter into a generalized discussion *351of the substance of the charges without the assistance of counsel.” 327 Or at 340. As I discuss above, I have no objection to that general legal standard. However, the majority concludes that defendant’s statement here satisfies that standard, because defendant “evinced a willingness and a desire for a generalized discussion about the investigation” and “chose to reopen the topic of the investigation.” 327 Or at 341.
It is important to keep in mind what defendant actually said to the officers. He said that he was losing his relationship with his girlfriend and that he was not guilty of the criminal actions that the officers had discussed with him. Contrary to the majority’s view, those statements do not express, either expressly or by implication, a willingness and a desire for a general discussion about the criminal charges. I agree that defendant’s assertion of his innocence pertained to the investigation of possible criminal activity, but his statement expressed no desire to extend the police interrogation.
Significantly, defendant’s statement to the officers also did not clarify his earlier ambiguous invocation of the right to counsel. Defendant never mentioned, let alone made clear, his imperfectly expressed desire for a lawyer’s assistance. To use the test that the majority articulates, defendant’s statement did not answer the question whether he was “willing to enter into a generalized discussion of the substance of the charges without the assistance of counsel.” Id. (emphasis supplied). As a result, defendant’s statement did not obviate the officers’ fulfillment of their obligation to seek clarification of defendant’s ambiguous request for a lawyer.
The majority’s rationale, that defendant “evinced a willingness and a desire” to speak about the investigation and that he “chose to reopen the topic of the investigation,” (emphasis added) suggests that the majority seeks to rely on a body of law that the United States Supreme Court uses in analyzing whether an incarcerated suspect has “initiated” an interrogation with the police. Oregon v. Bradshaw, 462 US 1039, 103 S Ct 2830, 77 L Ed 2d 405 (1983) (plurality decision); Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981). Edwards states the initiation rule as follows:
*352“[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”
451 US at 484-85 (footnote omitted).
The majority’s attempt to make the law of initiation apply here produces a bad fit. That law is designed to assist police officers in determining whether they can speak again with a suspect after he has invoked his rights, the interrogation has ceased, and a period of time has elapsed. As Edwards confirms, a waiver of rights cannot be established in this context “by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.” 451 US at 484. That requirement demonstrates that the initiation rule is inapplicable to a suspect’s statements, like defendant’s brief oration here, that respond directly to police-initiated interrogation. The majority’s effort to bifurcate this single, police-initiated interview, and to suggest implicitly that defendant, having “initiated” the second phase of the interview, was not responding to interrogation by the police, produces a serious distortion of the relevant facts and the initiation rule.
The majority’s approach carries a potential for mischief. That approach will induce officers not to seek clarification of an ambiguous invocation of rights, but instead to wait until a suspect says something that relates, even indirectly, to the matters under discussion (including as little as an assertion of innocence), and then proceed with the interrogation. Correctly analyzed, the majority’s purported exception to the clarification approach likely will swallow it whole.
I see no reason to adopt such a sweeping exception in cases of this kind. Because defendant’s invocation of his rights was ambiguous, and his subsequent oration did not *353clarify the ambiguity, the policy reasons that support the clarification approach point to the correct legal answer. When defendant finished speaking, the officers had a clear opportunity to seek clarification of defendant’s ambiguous invocation of his right to counsel and should have done so. Instead, despite the reasonable import of defendant’s request, they presumed that he did not want a lawyer, never asked him what he meant, and pressed ahead with the interrogation. The trial court concluded, that during these events, defendant did not knowingly and intelligently waive his constitutional right to counsel. I would affirm that conclusion.
Accordingly, I dissent.
It cannot be gainsaid that Miranda has attracted its share of controversy. One author reports that the Miranda opinion “was assailed by police, prosecutors, politicians, and media,” was attacked by the administrations of two presidents, *343was cited in Congress as a justification for impeaching Chief Justice Earl Warren, and continues to receive calls for its reversal from academic and media sources. Richard A. Leo, The Impact of Miranda Revisited, 86 J Crim L & Criminology 621, 622-23 (1996); Paul G. Cassell and Bret S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L Rev 839, 840 (1996) (describing Miranda as “the Supreme Court’s most famous criminal law decision,” and citing a 1974 survey of the American Bar Association that ranked Miranda as “the third most notable decision of all time”). Miranda has its academic critics. Paul G. Cassell, Protecting the Innocent From False Confessions and Lost Confessions—and From Miranda, 88 J Crim L & Criminology 497, 538 (1998); Paul G. Cassell and Richard Fowles, Handcuffing the Cops ? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement, 50 Stan L Rev 1055 (1998); Joseph D. Grano, Miranda v. Arizona and the Legal Mind: Formalism’s Triumph over Substance and Reason, 24 Am Crim L Rev 243 (1986). Miranda also has its supporters. John J. Donohue III, Did Miranda Diminish Police Effectiveness?, 50 Stan L Rev 1147 (1998) (questioning data and statistical methodologies relied on by Miranda’s critics); Peter Arenella, Miranda Stories, 20 Harv J L & Pub Pol’y 375 (1997) (hereinafter Arenella); Stephen J. Schulhofer, Bashing Miranda is Unjustified —and Harmful, 20 Harv J L & Pub Pol’y 347 (1997); Yale Kamisar, Police Interrogation and Confessions 223 (1980); Richard A. Leo and Richard J. Ofshe, Using the Innocent to Scapegoat Miranda: Another Reply to Paul Cassell, 88 J Crim L & Criminology 557 (1998). That debate aside, I accept, for purposes of this opinion, that Miranda-type warnings are a procedural safeguard that this court has adopted and enforced to effectuate rights protected by Article I, section 12, of the Oregon Constitution.
The presence of at least four judges of the Oregon Supreme Court is necessary for the transaction of the court’s business. ORS 2.100. The four-judge quorum requirement is satisfied here. The concurrence of a majority of that quorum in the lead opinion permits entry of judgment in this case. For that reason, I refer to the lead opinion as the majority opinion. However, because the lead opinion has received the affirmative votes of less than a majority of this seven-member court, the lead opinion does not carry the precedential weight of a majority opinion of the entire Oregon Supreme Court.
“Repeat players in the criminal justice system not only know their ‘rights,’ some of them learn the hard way that they cannot talk themselves out of trouble in a police interrogation room. In short, some of these repeat suspects are not relying on their Miranda rights as much as their realization that talkingto the police in this setting is a lose-lose proposition. Repeat players who have learned this lesson will not talk to the police regardless of the legal regime controlling the interrogation process unless the length and pressures of the interrogation sap their will.”
Arenella, 20 Harv J L & Pub Pol’y at 378 (footnote omitted).
See Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale LJ 259, 315-19 (1993), which discusses recent social science research and concludes:
“Current legal doctrine, premised on the expectation that an invocation of rights should be direct and unequivocal in form, does not serve the interests of the many speech communities whose discourse patterns deviate from the implicit norms in standard, ‘male register’ English.” (Footnote omitted.)
See also Comment, Davis v. United States: Leaving Less Articulate Suspects to Fend for Themselves in the Face of Custodial Interrogation, 22 New Eng J on Crim & Civ Confinement 29 (1996); Comment, Hung Up On Semantics: A Critique of Davis v. United States, 23 Hastings Const LQ 313 (1995).
“Appellate courts have warned that the clarification standard does not sanction police attempts, whether by coercion or persuasion, to discourage suspects from invoking the right to counsel.”
Ainsworth, 103 Yale L J at 312, citing Thompson v. Wainwright, 601 F2d 768, 772 (5th Cir 1979):
“[T]he limited inquiry permissible after an equivocal request for legal counsel may not take the form of an argument between interrogators and suspect about whether having counsel would be in the suspect’s best interests or not. * * * Such measures are foreign to the purpose of clarification, which is not to persuade but to discern.”
My point is that police should incorporate into their interview procedures the routine use of a simple, straightforward question that seeks clarification of a suspect’s intention in referring ambiguously to a desire for a lawyer’s help, not that police should avoid that tactic. As long as a suspect, properly advised of his or her rights, voluntarily and intelligently waives his or her right to counsel and chooses to speak to the police alone, the success of the police in obtaining incriminating statements, and the foolishness of the suspect’s choice when viewed in retrospect, are not matters of constitutional concern.
‘TTlhe Constitution is not offended when criminal suspects make foolish decisions that do not promote their self-interest. Since Miranda does not bar the police from using deceit and trickery to gain suspects’ confidence once they have waived their rights, the police are free to play a confidence game in which their eventual betrayal of that trust generates non-coerced incriminating admissions.” Arenella, 20 Harv J L & Pub Pol’y at 382 (footnotes omitted) (emphasis in original).
For an assessment of the problems that surround modern pschological methods of police interrogation, despite police observance of Miranda warning requirements, see Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J Crim L & Criminology 429 (1998); Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in America, 18 Crime, L & Soc Change 35 (1992).
The three prevailing judicial standards for testing the adequacy of the invocation of the right to counsel during police interrogation are discussed, with citations to relevant authorities, in Ainsworth, 103 Yale L J at 301-15; Comment, Davis v. United States: “Maybe I Should Talk to a Lawyer” Means Maybe Miranda *347is Unraveling, 23 Pepp L Rev 607, 618-25 (1996); Comment, How Do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant’s Right to Counsel Under Miranda v. Arizona, 79 Marq L Rev 1041, 1049-57 (1996); Note, So You Kinda, Sorta, Think You Might Need a Lawyer?: Ambiguous Requests for Counsel After Davis v. United States, 49 Ark L Rev 275, 282-84 (1996); Comment, Ambiguous or Equivocal Requests for Counsel in Custodial Interrogations after Davis v. United States, 81 Iowa L Rev 161 (1995); Comment, Criminal Procedure: United States Supreme Court Adopts the Threshold of Clarity Standard for Ambiguous Requests for Counsel, 46 Fla L Rev 483, 486-93 (1994).
In Davis v. United States, 512 US 452, 114 S Ct 2350, 129 L Ed 2d 362 (1994), the United States Supreme Court approved the admission of a suspect’s statements to law enforcement officers in an interview after the officers clarified that, despite an ambiguous invocation of the right to counsel, the suspect desired to continue without a lawyer. A five-member majority indicated that the police were not required to ask clarifying questions in this context, because the suspect’s invocation was ambiguous. Davis, 512 US at 459-62. Because the officers had sought clarification of the suspect’s intention before continuing the interrogation, the latter view expressed by the Davis majority appears to be dictum.
See n 7 (listing reviews that cite pertinent authorities). The concurring opinion of Justice Souter in Davis reports that state court authority and pre-Davis federal court authority were “lopsided” in favor of the clarification approach, 512 US at 466 n 1, and that, in the Davis case, the clarification approach was supported by national organizations representing chiefs-of-police, district attorneys, and sheriffs, as well as the United States Department of Justice. 512 US at 467 n 2.
“Although the terms ‘ambiguous’ and ‘equivocal’ are generally used interchangeably in the case law addressing this issue, they should be distinguished. Properly speaking, a statement is ambiguous if the addressee is unsure which of two or more interpretations to adopt to understand the meaning of an utterance; the statement is equivocal if the speaker is uncertain or ambivalent *349about what he or she really means to say. Ambiguity is judged by the effect on the listener, whereas equivocality is assessed by the intent of the speaker.”
Ainsworth, 103 Yale L J at 299 n 203.1, too, use the terms “ambiguous” and “equivocal” interchangeably to refer to a statement that plausibly may invoke the right to silence or to counsel, but need not necessarily be construed in that manner.