dissenting.
The majority interprets Article I, section 12, of the Oregon Constitution to permit the state to impeach defendant on cross-examination with statements that the police obtained from him in a custodial interrogation after he had received Miranda warnings and after he had requested counsel but had not initiated further discussion.1 Neither this court nor the Supreme Court has addressed this issue before under the Oregon Constitution. Because I believe that the majority has forsaken sound analysis and adopted a rule that is both undesirable and at odds with Oregon precedent, I dissent.
In determining the meaning of Article 1, section 12, we have stated, in words which the Oregon Supreme Court has adopted as its own, that
“a United States Supreme Court majority is no more binding * * * than a U.S. Supreme Court minority, a decision of the Supreme Courts of Hawaii, California, or Georgia, or a well-reasoned law review article. Judicial opinions from other jurisdictions are helpful in interpreting the Oregon Constitution to the extent that their reasoning is persuasive * * State v. Soriano, 68 Or App 642, 645-46, 684 P2d 1220, aff’d 298 Or 392 (1984).
Nevertheless, the majority interprets Article 1, section 12, in conformity with the United States Supreme Court opinions in *312Harris v. New York, 401 US 222, 91 S Ct 643, 28 L Ed 2d 1 (1971), and Oregon v. Hass, 420 US 714, 95 S Ct 1215, 43 L Ed 2d 570, (1975), that interpreted the Fifth Amendment. In Harris, the Supreme Court held that under the Fifth Amendment the state could impeach the defendant on cross-examination with statements which he made to the police during custodial interrogation after the police had failed to give correct Miranda warnings. In Oregon v. Hass the Supreme Court reversed the Oregon Supreme Court and held, under the Fifth Amendment, that the state could impeach the defendant on cross-examination with statements he made to the police during custodial interrogation after the police had given Miranda warnings to him and he had requested an attorney.
We should not adopt the Harris rule or the rule of Oregon v. Hass in interpreting our own constitution. Even if, in an appropriate case, we were to adopt the Harris rule, we should not adopt the rule of Oregon v. Hass.
Although the case before us is like Hass, the majority opinion focuses its discussion on Harris, which was decided 5 to 4. The reasoning of the dissenting opinion is persuasive. In dissent, Justice Brennan pointed out that the Harris rule was contrary to Miranda, which stated:
“ ‘The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner .... [Statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial.... These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. ’ 384 US, at 476-477, 16 L Ed 2d at 724, 725, 10 ALR 3d 974 (emphasis added).” 401 US 222 at 230.
Justice Brennan noted:
“The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The ‘essential mainstay’ of that system, Miranda v. Arizona, * * * is the privilege against self-incrimination, which for that reason has occupied a central place in our jurisprudence since before the Nation’s birth. * * *. The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it *313may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution.” 401 US 222 at 231.
Here the majority argues that to deny the state the opportunity to impeach defendant with his previous statements “simply licenses perjury.” 76 Or App at 311. Any exclusionary rule, however, bars the prosecution from using evidence to convict a defendant whose testimony at trial may be false. A rule excluding illegally obtained evidence for all purposes does not condone perjury but protects the integrity of the criminal justice system and deters police misconduct. To allow the state to use statements obtained illegally, however, does condone the illegal practices by which those statements were obtained. As the Oregon Supreme Court stated in State v. Brewton, 247 Or 241, 246, 422 P2d 581 (1967):
“The state should be free to impeach, but it ought to come by its impeachment as legally as it accumulates its other evidence.”
The majority adopts the United States Supreme Court’s assumption in Harris that “sufficient deterrence [to police misconduct] flows when the evidence in question is made unavailable to the prosecution in its case in chief.” 401 US at 225. In Brewton, our Supreme Court expressly rejected this argument:
“If we should today adopt a restrictive application of the exclusionary rule, the result could be a major step backward. This court would in effect be saying to the overzealous that police officers will be free in the fiiture to interrogate suspects secretly, at arms length, without counsel, and without advice, so long as they use means consistent with threat-or-promise voluntariness, and so long as they understand that they may file the information only for use to keep the defendant honest. Thus the police could, at their option, take a calculated risk: By giving up the possibility of using the suspect’s statements in the state’s case, they could obtain by unconstitutional means and store away evidence to use if the defendant should elect upon trial to take the stand. As commendable as it may be to prevent perjury, the price of such prevention could be to keep defendants off the stand entirely. In some cases, the temptation to silence a suspect of dubious probity might very well outweigh the desire to conduct a constitutionally valid interrogation. We have concluded that to introduce such a *314rule could undo much of the recent progress that has been made in upgrading police methods to preserve the rights guaranteed under the Fifth and Sixth Amendments, and would be inconsistent with the trend of our recent decisions.” State v. Brewton, 247 Or 241, 245. (Emphasis supplied.)
The majority speaks of the “clarity” of the Harris rule, but a virtue of the Harris rule is certainly not clarity. If a statement is inadmissible in the state’s case-in-chief, it is only admissible under Harris for impeachment if it was made voluntarily. Harris forces courts to grapple again with the murky question of voluntariness.2 Furthermore, a trial court would have to determine in each case whether the illegally obtained statement is probative on the issue of credibility and then instruct the jury to do the impossible, that is to ignore the statement for other purposes.3
The Harris rule deters a defendant who has been the subject of illegal police conduct from testifying in his own defense. It undermines a defendant’s right under Article 1, section 11, of the Oregon Constitution to testify in his own behalf. As the Oregon Supreme Court has said: “If the choice is to exclude all illegally obtained evidence or to silence the defendant as a witness, it is better to exclude the illegal evidence.” State v. Brewton, supra, 247 Or at 246.
Finally, with particular reference to the rule of Oregon v. Hass, to allow the police to continue custodial interrogation after the defendant has requested an attorney and has not initiated the interrogation belittles the constitutional right to'counsel’s assistance.
The majority mistakenly declares that Brewton is not a “particularly useful precedent,” (76 Or App at 306) *315because it does not explicitly rely on the Oregon Constitution. Although Brewton attempted to announce standards under the Fifth Amendment, that case is a clear statement of what our supreme court believed would be an appropriate rule for Oregon.4 Its reasoning shows why we should adopt an independent interpretation of Article 1, section 12, and reject Harris and Oregon v. Hass.
In Brewton, the Oregon Supreme Court held that the state may not impeach a defendant at trial, should he choose to testify, with incriminating statements that he gave to the police during custodial interrogation if the police fail to give him Miranda warnings. It rejected the rule that the United States Supreme Court subsequently adopted in Harris. The Oregon Supreme Court stated:
“While an argument can be made that ‘voluntary’ unconstitutional confessions can be distinguished from ‘involuntary’ unconstitutional confessions, solely for the purposes of impeachment, this dichotomy does not appeal to us as constitutionally meaningful.” State v. Brewton, 247 Or at 243. (Emphasis supplied.)
The court in Brewton rested its decision on Oregon precedents. Oregon law then and now requires exclusion of illegally obtained evidence for both substantive and impeachment purposes. In State of Oregon v. Goodwin, 207 Or 642, 645, 298 P2d 1024 (1956), the court had stated:
“To hold that a statement, which is in fact inadmissible as a confession, is, nevertheless, admissible as a contradictory *316statement effectively circumvents the rules governing confessions. It permits evidence to come in through the back door which would be excluded if it attempted to enter at any other place. Rather than create an effective by-pass for the exclusionary rule, the rule itself should be abandoned.”
The Brewton decision relied on Goodwin:
“As we have said before, circumvention of constitutional liberties is not to be encouraged by permitting illegally obtained evidence to come in ‘through the back door.’ State of Oregon v. Goodwin * * *.” State u. Brewton 247 Or at 246.
The majority holds that Brewton was displaced by Harris. Our Supreme Court, however, has resisted just such a step. In State v. Haas, 267 Or 489, 517 P2d 671 (1973), which was decided after Harris, the court was asked to overrule Brewton on facts analogous to the facts of this case. It chose not to do so.5
Even if we were to adopt the Harris rule for Article 1 section 12, we should not adopt the rule of Oregon v. Hass. The facts here are like those in Hass. Defendant requested counsel during custodial interrogation, but the police continued to question him, although defendant had not initiated further interrogation. The state used his subsequent statements to impeach him when he testified at trial on his own behalf. Unlike the situation in Harris, when the defendant was not given correct Miranda warnings, may not have felt the need for counsel and did not request counsel’s assistance at custodial interrogation, defendant recognized that he needed the assistance of counsel and attempted to exercise that constitutional right of which the police had advised him. A defendant who requests counsel at custodial interrogation is entitled to that assistance, and the police should not be allowed to frustrate that right by questioning him between the time he makes the request and the time he receives that assistance.
Furthermore, the argument that the police will be *317sufficiently deterred from violating the rights of an accused by the threat of losing evidence for their case-in-chief is much less convincing when applied to the facts of Hass and the case before us than to the facts of Harris. In Harris, the police misconduct was failure to give a defendant Miranda warnings before interrogation. Here, however, as in Hass, the police conduct was failure to cease questioning when defendant requested an attorney during custodial interrogation. See Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981); State v. Barmon, 67 Or App 369, 679 P2d 888, rev den, 297 Or 227 (1984). In State v. Haas, the Oregon Supreme Court found that the argument of adequate deterrence of the United States Supreme Court in Harris was not convincing when the defendant has requested the assistance of counsel:
“The defendant here was given proper warnings and took them at their word and asked for a lawyer. The police then knew they would most likely get nothing further from defendant if he consulted a lawyer. Therefore, they had nothing to lose and something to gain by violating Miranda if the State is permitted to use such information as was secured by continued interrogation for impeachment purposes. In such a situation, there is no pressure whatsoever to obtain compliance and the prophylactic exclusion of the evidence as dictated by Miranda, Escobedo, and Neely is still required.” State v. Haas, supra, 267 Or at 493. (Footnotes omitted).
The majority states that Harris has been overwhelmingly persuasive in the courts of our sister states. Although the majority cites 45 cases in its support (76 Or App at 308-309), its assertion does not withstand close scrutiny. The majority concedes that 35 of those 45 cases did not even consider a state constitutional provision and were decided solely on federal grounds. It is not surprising that Harris would be persuasive to state courts attempting to apply federal law. Here, however, we must decide what is the best rule of law under our state constitution. Of the 10 cases in which the majority claims courts adopted Harris as a construction of their state constitutions, six of them did not even mention their own constitutions and only two devote any more than a passing reference to them. Rooks v. State, 250 Ark 561, 466 SW 2d 478 (1971) (court misreads Harris to allow use of involuntary statements to impeach which restores vitality to its previous decisions); Commonwealth v. Harris, 364 Mass 236, 303 NE 2d 115 (1973) (because of technical nature of *318Miranda violation, court stated that “case would be a peculiarly unattractive vehicle for ruling contrary to Harris v. New York”). In neither of those cases does the court give any serious consideration to the merits or demerits of the Harris rule. Furthermore, three of the ten cases deal with the issue only in dicta. State v. Roberts, 223 Kan 49, 574 P2d 164 (1977) (conviction reversed, because statement used for impeachment was involuntary); Brewer v. State, 501 SW 2d 280 (Tenn 1973) (conviction reversed, because statement used for impeachment was not directly contradictory); State v. Iverson, 187 NW 2d 1 (ND), cert den 404 US 956 (1971) (conviction affirmed, because defendant not in custody at the time statements used for impeachment given). To summarize, the flood of state court decisions that follow Harris is really just a trickle. Furthermore, there is virtually no support in those cases for adopting the rule of Oregon v. Hass as an independent interpretation of our state constitution.
On the other hand, California, Hawaii, and Pennsylvania, after carefully considering the merits of the federal rule, have chosen not.to follow Harris in interpreting their own constitutions. People v. Disbrow, supra, (specifically rejecting the rule of Oregon v. Hass); State v. Santiago, 53 Haw 254, 492 P2d 657 (1971); Commonwealth v. Triplett, 462 Pa 244, 341 A2d 62 (1975).
The rule of Oregon v. Hass undervalues the importance of the assistance of counsel if the police may continue with custodial interrogation after a suspect requests counsel. It deters a defendant from testifying in his own defense. It reopens the issue of “voluntariness.” It requires the jury to do mental gymnastics — to consider defendant’s pretrial statements only for impeachment purposes and not as substantive evidence. It does not deter the police from engaging in illegal conduct; it encourages it and, thereby, weakens the integrity of the judicial system.
We should not adopt the rule of Oregon v. Hass in making an independent interpretation of Article 1, section 12. Rather we should hold that the state may not impeach defendant with a statement which the police obtained from him during custodial interrogation after he had requested counsel and during a time when interrogation should have ceased. We should reverse.
*319Buttler and Warden, JJ., join in this dissenting opinion.Like the majority, I take it as clear that Article I, section 12, requires the police to give Miranda warnings to suspects in custody. See State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983); State v. Mains, 295 Or 640, 669 P2d 1112 (1983); see also State o. Smith, 70 Or App 675, 691 P2d 484 (1984), rev allowed 298 Or 704 (1985). I also agree with the majority’s implicit assumption that, under the Oregon Constitution, the police must cease questioning a suspect who requests an attorney during custodial interrogation unless the suspect thereafter initiates the questioning.
The issue is not before us whether defendant’s statements were voluntary. See State v. Foster, 288 Or 649, 607 P2d 173 (1980). The question of whether the trial court must make explicit findings of voluntariness before allowing impeachment under these circumstances is also not raised.
“To instruct a jury that they are not to consider expressions of complicity in the charged crime as evidence that the speaker in fact committed the charged crime, but only for the purpose of demonstrating that he was probably lying when he denied committing the charged crime, would be to require, in the words of Learned Hand, ‘a mental gymnastic which is beyond, not only [the jury’s] power, but anybody else’s.’ (Nash v. United States (2d Cir 1932) 54 F 2d 1006,1007).” People v. Disbrow, 16 Cal 3d 101, 112, 545 P2d 272 (1976).
As the majority knows, the constitutional basis for decisions at the time of Brewton was often blurred. State v. Flores, 68 Or App 617, 622-623, 685 P2d 999, rev den 298 Or 151 (1984). In fact, it appears that our Supreme Court may have operated under the misconception that it could independently interpret the United States Constitution to provide broader protection for Oregon citizens than the interpretations of the United States Supreme Court provided. See Stat6e v. Florence, 270 Or 169, 182 527 P2d 1202 (1974). Although the Brewton court may have attempted to enunciate a standard under the federal constitution, it, nevertheless, also attempted to arrive at what it thought to be a sound rule of law for Oregon. Under similar circumstances, both this court and the Oregon Supreme Court have recognized an opinion’s precedential value in determining the meaning of the provisions of the Oregon constitution. See State v. O’Neal, 251 Or 163, 444 P2d 951 (1968), cited as state precedent in State v. Caraher, 293 Or 741, 757, 653 P2d 942 (1982) and State v. Lowry, 295 Or 337, 345, 667 P2d 996 (1983); see also State v. Cloman, 254 Or 1456 P2d 67 (1969) cited in State v. Caraher, 293 Or at 759; Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968) cited in State v. Soriano, supra, 68 Or App at 660.
In this court’s opinion in State u. Haas, we had also followed Brewton and said:
“In [Brewton] the Oregon Supreme Court held such evidence was not admissible for impeachment purposes. We are bound by the decision of our own Supreme Court in this area.” State v. Haas, 13 Or App 368, 374, 510 P2d 852 (1973).