People v. Bender

*624Boyle, J.

(dissenting). Today, without a single foundation in the language, historical context, or the jurisprudence of this Court, a majority of the Court1 engrafts its own “enlightened” view of the Constitution of 1963, art 1, § 17, on the citizens of the State of Michigan. With nothing more substantial than a disagreement with the United States Supreme Court as the basis for its conclusion, a majority of the Court ignores our obligation to find a principled basis for the creation of new rights and imposes a benefit on suspects that will eliminate voluntary and knowledgeable confessions from the arsenal of society’s weapons against crime. The obvious and immediate cost of today’s result will be the reversal of convictions. The hidden consequences — the cases that will not be brought because confessions that are wholly voluntary and made with full knowledge of Miranda2 cannot be admitted, and the cases brought and lost because the jury never hears the uncoerced words of the defendant on trial — are, if anything, more onerous.3

*625The lead opinion’s characterization of the “narrow and specific”4 duty to inform frustrates the constitutionally legitimate and societally beneficial purposes of custodial interrogation. It raises the specter of “virtual” lawyers, who call, FAX, or E-mail police stations with their desire to contact incarcerated suspects; of clerks, whose job it is to log the moment the communication was received and transmit it promptly; and of judicial hearings to determine whether a given statement was obtained before or after communication.

By cloaking its assumption that the criminal justice system exists for lawyers and their clients in constitutional garb, a majority of the Court has placed it beyond correction by the Legislature. The fact that this Court has no authority to make policy for the citizens of Michigan does not deter the conclusion. There is no principled basis for today’s decision, but there is a point: to make it more difficult to convict those who acknowledge their guilt with full knowledge of their rights. I respectfully dissent.

Contrary to the lead opinion’s conclusory assertion that “[t]he Fifth and Fourteenth Amendments of the United States Constitution protect a defendant’s federal rights to remain silent and to counsel,” ante at 602, these rights cannot be found in the actual text of either amendment. The Fifth Amendment in its entirety states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment *626of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment affords many rights, but not a right to counsel or a right to remain silent. The Fourteenth Amendment is equally barren soil in which to ground such rights, and its only purported function in this case is to serve as a conduit for applying the Fifth Amendment to the states. See Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964).

The genesis of the “right to remain silent” is found in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), not the Fifth Amendment. In 1966, three years after the current Michigan Constitution was ratified, the United States Supreme Court in Miranda created a prophylactic set of warnings to ensure protection of Fifth Amendment rights. Michigan v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L Ed 2d 182 (1974). If properly administered and validly waived, the Miranda warnings ensure protection of a defendant’s right against compulsory self-incrimination, while at the same time allowing the police to fulfill their duty in a constitutionally permissible manner. The warnings and rights delineated in Miranda, however, are not constitutionally required, and the rights to counsel and silence are only suggested as one possible formula for dispelling the coercive atmosphere the Court found present in custodial interrogation.

*627The Miranda Court developed its formulation as one possible method of informing a defendant that the state could not force him to incriminate himself.

The Fifth Amendment confers a right not to be compelled to answer questions; it does not confer a substantive or formal right of silence. Concededly, the former right does give rise to a right of silence in “the very weak sense” that a person has “a right to silence on every subject”: a person who cannot lawfully be coerced into speaking can, of course, remain silent. [Grano, Confessions, Truth, and the Law (Ann Arbor: The University of Michigan Press, 1993), pp 141-142.]

A right to remain silent is not the same as the right to be free from compelled self-incrimination. That difference goes beyond mere semantics. If there were a constitutional “right to remain silent,” a statement that was obtained in violation of Miranda, or before notice of such rights could be given, would be inadmissible not only in the prosecution’s case in chief, but in all phases of the trial. The United States Supreme Court has explicitly rejected this blanket limitation, however, and endorsed the use of both prearrest silence and statements taken in violation of Miranda for purposes of impeachment. Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971); Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980). See also People v Cetlinski, 435 Mich 742; 460 NW2d 534 (1990). If there were a constitutional “right to silence,” these statements could not be used to impeach in the case in chief. As Professor Grano notes, the Fifth Amendment precludes only compelled self-incrimination and does not guarantee a right to silence, and he comes to the fairly *628“unremarkable conclusion that the Fifth Amendment actually means what it says.” Id. at 143.

The corresponding guarantee against compelled self-incrimination found in art 1, § 17 of the Michigan Constitution provides no greater protection than the Fifth Amendment. In Sitz v Dep’t of State Police, 443 Mich 744; 506 NW2d 209 (1993), this Court reaffirmed that it is this Court’s duty to interpret the Michigan Constitution. Our review may lead us to conclude that our constitution provides greater, equal, or lesser protection than its federal counterpart. “[W]e may not disregard the guarantees that our constitution confers on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection.” Id. at 759.

That duty does not authorize the “unprincipled creation of state constitutional rights that exceed their federal counteiparts,” Sitz, supra at 763, nor does it mandate that we ignore the rich body of federal law the United States Supreme Court has created through analysis of corresponding provisions in the federal constitution. Although we have repeatedly concluded that our constitution should be interpreted differently only if there is a compelling reason for doing so, id. at 763; People v Nash, 418 Mich 196; 341 NW2d 439 (1983), the lead opinion is not hindered by traditional principles of constitutional interpretation.

The following factors are relevant in determining whether there is a compelling reason to interpret that our constitution affords protection different from the federal constitution:

1) the textual language of the state constitution, 2) significant textual differences between parallel provisions of the two constitutions, 3) state constitutional and common-law *629history, 4) state law preexisting adoption of the relevant constitutional provision, 5) structural differences between the state and federal constitutions, and 6) matters of peculiar state or local interest. [People v Collins, 438 Mich 8, 31, n 39; 475 NW2d 684 (1991), citing People v Catania, 427 Mich 447, 466, n 12; 398 NW2d 343 (1986); Sitz, supra at 763, n 14.]

Employing this methodology, analysis of the Fifth Amendment and art 1, § 17 of the Michigan Constitution indicates that there is no justification, compelling or otherwise, for construing these provisions differently. First, the relevant language in each provision is identical,5 and has been identical since the incorporation of a provision against compulsory self-incrimination in the Michigan Constitution in 1850. Const 1850, art 6, § 26. Moreover, there is nothing in the record of the 1961 Constitutional Convention that would indicate any intent to engraft a different interpretation than that embodied in the Fifth Amendment.6

Second, opinions of this Court have repeatedly indicated that the protection against compulsory self-incrimination found in our constitution is identical to its federal counteipart. Over ninety years ago, this *630Court first examined the federal and state provisions against compelled self-incrimination. In In re Moser, 138 Mich 302; 101 NW 588 (1904), a witness who was called before a grand jury was held in contempt for failing to turn over certain corporate records. The witness claimed that the protection against self-incrimination found in both the Fifth Amendment and the corresponding Michigan provision — at that time art 6, § 26 — guaranteed him the right to withhold the records. In concluding that the witness had no such right, this Court stated:

Under the Constitutions of Michigan and the United States, no witness can be compelled to give testimony ' which might tend to criminate himself or expose him to a criminal prosecution. The provision in each Constitution is the same. [Id. at 305 (emphasis added).]

More recently, in a case that is factually similar to Moser, this Court again squarely addressed the claim that the Michigan Constitution provides greater protection than the federal constitution. In Paramount Pictures Corp v Miskinis, 418 Mich 708; 344 NW2d 788 (1984), the defendants argued that compelled production of business records in a civil suit violated their privilege against self-incrimination because the records could be used against them in a subsequent criminal prosecution. This Court concluded that a corporate custodian of documents cannot assert a privilege against self-incrimination for documents that relate to the corporation. The privilege is personal, only applies to natural persons, and cannot be asserted on behalf of another. The defendants argued that, although production of the documents might not be “protected under the federal constitution, it is pro*631tected under the Michigan Constitution, Const 1963, art 1, § 17 Id. at 725. In rejecting that argument, this Court stated:

Having examined prior decisions of this Court, we find nothing which requires an interpretation of our constitutional privilege against self-incrimination different from that of the United States Constitution. [Id. at 726.]

Thus, previous decisions of this Court illustrate a solid and unwavering line of authority for inteipreting our protection against self-incrimination identically with the federal guarantee.7

We examined the relationship between the Michigan and federal provisions most recently in People v Wright, 441 Mich 140; 490 NW2d 351 (1992). The facts in that case presented the exact issue that we address in this case. In Wright, the defendant was taken into custody, and the police properly informed him of his Miranda rights. He agreed to waive these rights and make a statement. The police, however, did not immediately take his statement, but continued to investigate the case for approximately another four hours. During this four-hour period, the defendant was confined without food or water in a fairly small room. Eventually, the police took the defendant’s statement after he had been in custody for approximately nine hours.

When the defendant was apprised of his rights, he agreed that he understood them and told the officers that he did not have an attorney. Although the officers informed the defendant that an attorney would be appointed for him if he so desired, they did not tell *632him that his family had hired an attorney and that the attorney had been attempting to contact him.

Before trial, the defendant filed a motion to suppress his statement. At the suppression hearing, the trial judge found that the “defendant wanted to make a statement and never explicitly asked for a lawyer.” Id. at 145. Moreover, the trial judge concluded that the United States Supreme Court opinion in Moran v Burbine, 475 US 412, 430; 106 S Ct 1135; 89 L Ed 2d 410 (1986), was directly on point and that, although the police behavior may have been “reprehensible,” the law did not require suppression of the defendant’s statement. The Court of Appeals affirmed, and this Court granted leave to appeal.

The case resulted in a fragmented decision with four separate opinions. Justices Levin and Mallett would have found that the Michigan Constitution provided greater protection than that provided by the Fifth Amendment. Wright, supra at 154-155. Chief Justice Cavanagh agreed with Justices Levin and Mallett but went on to state that the police conduct violated the defendant’s right to counsel under Const 1963, art 1, § 20. Justice Brickley’s opinion focused on the defendant’s due process claim and found that the defendant’s confession was involuntary because of the coercive nature of his interrogation. Finally, Justices Riley, Griffin, and Boyle would have construed the scope of the protection afforded by the Michigan Constitution identically with that of the Fifth Amendment guarantee.

The lead opinion mischaracterizes what this Court “held” in Wright. Although the opinions of Justice Mallett and Justice Brickley can be manipulated to state “that the Michigan Constitution imposes a *633stricter requirement for a valid waiver of the rights to remain silent and to counsel than imposed by the federal constitution,” ante at 611, four justices could not agree on why the Michigan Constitution imposes a more stringent standard.

As the lead opinion acknowledges, determining whether a defendant properly waived the rights conveyed in the Miranda warnings involves a bifurcated inquiry: 1) was the waiver voluntary, and 2) was the waiver knowing and intelligent? Ante at 603. The United States Supreme Court explained in Moran v Burbine:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Id. at 421, quoting Fare v Michael C, 442 US 707, 725; 99 S Ct 2560; 61 L Ed 2d 197 (1979).]

The voluntary and knowing and intelligent prongs involve significantly different inquiries. Assuming, arguendo, that the Michigan Constitution provides a more stringent standard than its federal counterpart for determining whether a waiver was voluntary — a premise with which I wholeheartedly disagree — there is no justification for the proposition that the knowing and intelligent inquiry is also more exacting.

Close scrutiny of the opinions of Justice Mallett and Justice Brickley in Wright illustrate the fallacy in *634the lead opinion’s broad assertion regarding waiver in general without regard for the dual prongs of the inquiry. Both Justice Brickley and Justice Mallett concluded that Wright’s confession was improper because it was not voluntary. Wright, supra at 153 (Mallett, J.); id. at 164 (Brickley, J.). Justice Mallett also asserted that Wright’s confession was not “knowing and intelligent,” but he framed the issue: “whether defendant’s statements were voluntary under the totality of the circumstances.” Id. at 147. Justice Brickley’s opinion never mentions the terms “knowing and intelligent,” and even goes so far as to state:

In sum, voluntariness forms the touchstone of the inquiry concerning the validity of the waivers made while in police custody. [Id. at 168.]

Thus, if there is any support for the proposition that the Michigan Constitution requires a more demanding standard, the increased stringency has been engrafted only onto the voluntariness inquiry. This issue was not addressed in Moran, where the Court explicitly stated “[t]he voluntariness of the waiver is not at issue.” Id. at 421. There is no support for the conclusion that the United States Supreme Court or this Court has adopted a more stringent standard for the “knowing and intelligent” prong of the waiver analysis.8

*635The lead opinion admits that “[b]ecause there was no evidence of police coercion, we agree with the trial court that neither defendant’s statement was involuntary, and thus need not be suppressed for that reason.” Ante at 604. If the statements were not involuntary, and, if, as Justice Brickley concluded, volunta-riness is the “touchstone” for determining whether a waiver is valid, the confessions in this case are not constitutionally deficient under Justice Brickley’s opinion in Wright.

The opinion on which the lead opinion relies, Justice Mallett’s opinion in Wright, focused on the voluntary prong of the waiver requirement. Although there is language addressing the knowing and intelligent prong of the waiver, this opinion suffers the same infirmities that plague the majority opinion in the present case. The fact that there may be policy reasons to support informing a suspect that counsel would like to speak with him, and that other states may find such a requirement in their constitutions is irrelevant. The self-restraint imposed by limiting recognition of new rights through a principled analysis express this Court’s commitment to the organic instrument of state government. If there is no reasoned basis for concluding that art 1, § 17 imposes more stringent requirements than the Fifth Amendment, recognition of such a right is simply an unprincipled declaration by this Court of its power in the premises.9

*636The lead opinion, without constitutional analysis or judicial support, declares by judicial fiat that “we reiterate that our state constitution affords defendants a greater degree of protection in this regard than does the federal constitution.” Ante at 614-615. As Justice Cooley in his treatise explained over one hundred years ago:

A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. [Cooley, Constitutional Limitations (6th ed), pp 68-69.]

The restrictions the lead opinion attributes to art 1, § 17 rest only on its belief that a different interpretation is more “desirable” than that set forth in the constitution or in our previous decisions. A belief that the law as we would write it is more desirable than the law as written has no place in constitutional interpretation, or in the faithful adherence to our oath of office.

*637The two provisions guarantee the same level of protection because “[t]he provision in each Constitution is the same,”10 and there is no “compelling reason” for interpreting the identical provisions differently.

Having concluded that the protection against compelled self-incrimination in the Michigan Constitution should be construed the same as its federal counterpart, we now examine whether the Fifth Amendment would invalidate defendants’ Miranda waiver. It does not.

[I]t is . . . axiomatic that the [Fifth] Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials. “It does not preclude a witness from testifying voluntarily in matters which may incriminate him,” United States v Monia, 317 US 424, 427 [63 S Ct 409; 87 L Ed 376] (1943), for “those competent and freewilled to do so may give evidence against the whole world, themselves included.” [United States v Washington, 431 US 181, 186-187; 97 S Ct 1814; 52 L Ed 2d 238 (1977), quoting United States v Kimball, 117 F 156, 163 (CC SD NY, 1902).]

The lead opinion’s conclusion that defendants did not make a knowing and intelligent waiver of their Miranda rights because the police failed to inform them that attorneys hired for them by their parents attempted to contact them before making their statements is not required by the federal constitution. Moran v Burbine. In fact, the majority’s conclusion *638was expressly rejected by the United States Supreme Court in Moran.

The United States Supreme Court, in Moran, addressed the very issue we are presented with today. The Court concluded that the police violated neither Miranda nor the federal constitution when they obtained a confession from a suspect after securing a valid Miranda waiver, but without informing him that a lawyer retained by his sister had telephoned the police station, offering to represent him if he was questioned.

In Moran, the defendant was arrested and properly informed of his Miranda rights. After voluntarily signing three written waivers of these rights and never requesting counsel, the defendant admitted that he had committed a murder.

Meanwhile, shortly after the defendant was arrested, and before the police began to question him, a public defender, who had been contacted by the defendant’s sister, called the police station and inquired whether the police intended to question the defendant that evening. In response, the police stated that they were not going to question the defendant that night. Throughout the interrogation, the defendant was unaware that his sister had retained an attorney or that the attorney had called.

Before trial, the defendant moved to suppress his confession. The trial court denied the motion and concluded that the waiver was voluntarily and knowingly made. At trial, the defendant was convicted of murder.

The defendant’s conviction was affirmed by the Rhode Island Supreme Court, and the United States District Court for the District of Rhode Island denied *639his habeas corpus petition. The United States Court of Appeals for the First Circuit reversed the defendant’s conviction, and the United States Supreme Court granted leave to appeal.

On appeal, the United States Supreme Court reinstated Burbine’s conviction, concluding that failure by the police to inform the defendant that his sister had retained counsel for him did not deprive him of his right to counsel or render his Miranda waiver invalid. The Court emphasized that Miranda imposes on police an obligation to “inform [a suspect] of his rights to remain silent and to ‘have counsel present ... if [he] so desires.’ ” Id. at 468-470. “Beyond this duty to inform, Miranda requires that the police respect the accused’s decision to exercise the rights outlined in the warnings.” 475 US 420. Moran reaffirmed that a suspect may waive his rights under Miranda, as long as that waiver is voluntary, knowing, and intelligent.

After noting that the voluntariness of the waiver was not at issue, the Court found that there was no question concerning the defendant’s understanding of the Miranda warnings and of the consequences of waiving them. The Court held that the information withheld from the defendant did not affect the knowing and intelligent nature of his waiver. It reasoned:

Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. . . . [W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could *640stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [475 US 422-423 (citations omitted).]

The Moran majority also emphasized that, if the police inform a suspect of his Miranda rights and ensure that the suspect waives those rights knowingly, voluntarily, and intelligently, any other police conduct, or misconduct, is then irrelevant. “[S]uch conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning f em.” Moran, supra at 424.

The Moran Court declined to extend the prophylactic Miranda warnings to include the duty to inform a suspect that an attorney is attempting to contact him. The Court indicated reluctance to muddy Miranda’s clear waters and indicated concern over shifting Miranda’s delicate balance between the societal value of confessions and the need to protect against the inherently coercive environment of police interrogation. 475 US 425. Although, as pointed out by the majority, Moran acknowledged that states were free to adopt different standards if they so chose, 475 US 428, the United States Supreme Court by definition could only mean that federal law did not preclude the adoption of different rules. The Court could not and did not address the authority of state supreme courts to interpret their own governing law.

Finally, the Court flatly refused to accept that the Sixth Amendment right to counsel is in any way implicated at the custodial interrogation stage of pro*641ceedings. It reemphasized as well that any constitutional support for Miranda lies solely in the Fifth Amendment right against compelled self-incrimination.

Like Miranda, Moran’s rationale and holding reflects the careful balance struck between protection of an incarcerated defendant, and the legitimate law enforcement objectives of society. Professor Yale Kamisar, who has defended Miranda in the face of its critics and criticized the United States Supreme Court for cutting back on that opinion, supports Moran. He states:

It is hard to believe that [the Miranda] Court would consider the now-familiar warnings insufficient when — even though a suspect has been adequately advised of his rights and has effectively waived them, thus expressing a willingness to talk to the police without a lawyer — a lawyer whose services the suspect has not sought has, unbeknown to him, entered the picture. [Kamisar, Remembering the “old world” of criminal procedure: A reply to Professor Grano, 23 U Mich J L Ref 537, 581 (1990).]

The guiding principle of Moran is that outside events have no effect on whether a waiver of Miranda rights is knowing and intelligent. The United States Supreme Court underscored this point in Colorado v Spring, 479 US 564, 577; 107 S Ct 851; 93 L Ed 2d 954 (1987), stating, “the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.” Thus, the Court concluded that the withholding by the police of certain information from the suspect did not affect his waiver decision “in a constitutionally significant manner.” Id.

*642m

What a majority of the Court is really saying in this case has nothing to do with whether defendants knowingly and intelligently waived their Miranda rights. Having been advised of and having agreed that they understood their rights, defendants, by definition, knew they had a right to have counsel present, in the room, and chose not to exercise that right. Rather, the point of both the lead opinion and Chief Justice Brickley’s opinion is that had defendants known an attorney was “attempting] to contact them,” ante at 614, they probably would have chosen to consult with that attorney, who likely would have advised them not to confess. However, if in fact there is a subjective difference in the suspect’s mind between knowing that he has the right not to speak without an attorney present and knowing that a retained attorney is trying to contact him, it is a difference that the Miranda warnings already address.

Contrary to the rationale of the Connecticut court on which the lead opinion relies, Miranda advice is not an abstract offer to call some unknown lawyer, it is an offer to have an attorney of one’s choice present during questioning. Thus, although the lead opinion speculates that defendants might not have made a statement had they known an attorney was going to be available (immediately, within an horn, within several hours), this is exactly the kind of information that would have been produced had defendants exercised their options under Miranda to ask questions and request their attorneys.11 Both the lead opinion *643and Chief Justice Brickley’s opinion benefit those suspects who already have retained counsel — the very suspects who currently exercise that option. Experience teaches that it is precisely those persons, educated and well enough off to retain an attorney, who are most likely to exercise their rights at precisely this point and to ask the police to contact their counsel. That a suspect may later regret that he did not choose to wait for the appearance of counsel of his choice does not affect the voluntariness of the choice. Nor does it logically support the conclusion that defendants would have foregone the opportunity to speak if they knew that their attorneys were “on [their] way.” As stated by the United States Supreme Court, “the Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’ ” Jenkins v Anderson, 447 US 231, 236; 100 S Ct 2124; 65 L Ed 2d 86 (1980), quoting Chaffin v Stynchcombe, 412 US 17, 30; 93 S Ct 1977; 36 L Ed 2d 714 (1973).12

*644In its haste to create a novel “Miranda-like right[ ],”13 a majority of the Court blurs the distinction between the constitutional right to be free from compelled self-incrimination and the safeguards— Miranda warnings — created to protect that right. In effect, a majority of the Court creates prophylactic rules to protect prophylactic rights. The argument seems to be that it is necessary to inform a suspect that an attorney is attempting to contact him, which, in turn, effectuates the suspect’s right to counsel, which, in turn, effectuates a suspect’s right to remain silent, which, in turn, effectuates a suspect’s right to be free from compelled self-incrimination. Safeguards for safeguards is absurd and is not required by the Michigan Constitution, the federal constitution, or Miranda.

Given, for the reasons stated above, that neither the Michigan nor the federal constitution require extension of the Miranda litany, the majority’s only possible justification for requiring the police to inform a suspect that an attorney wishes to speak with him must be grounded solely on policy concerns, not constitutional mandates. But policy concerns also fail under proper analysis.

Most problematic of all is the majority rule’s disruption of the delicate balance reached in Miranda between law enforcement’s need for confessions and the suspect’s need for protection against coercion. The holding in Miranda is a compromise between the state’s position that the due process voluntariness *645standard adequately protects rights and the competing position that only the presence of a lawyer will eliminate the coercion of custodial interrogation. The majority comes down against law enforcement, believing that a holding to the contrary “would encourage the police to do everything possible, short of a due process violation, to prevent an attorney from contacting his client before or during interrogation.”14 Id. at 615. There is no constitutional harm.15 If the police have done everything required by Miranda to effectuate a suspect’s right to choose not to speak, there is no due process violation; and if the “client” has not asked for an attorney even though he knows he has a right to the presence of counsel, what and whose rights are in jeopardy? Having thus created a paper tiger, however, a majority of the Court seeks to prevent the nonexistent constitutional violation and suppress all voluntarily given statements by saving the suspect from his own choice. What neither the lead opinion nor Chief Justice Brickley’s opinion recognizes, however, is that “[i]f all harsh, painful, or *646intrusive means of law enforcement were prohibited, law enforcement would be impossible.”16

Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. In addition to guaranteeing the right to remain silent unless immunity is granted, the Fifth Amendment proscribes only self-incrimination obtained by a “genuine compulsion of testimony.” Michigan v Tucker, supra, 417 US 440. Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions. [Washington, supra at 187.]

The majority’s imposition of an affirmative obligation on the police to offer more information than that required by Miranda will inevitably invite other challenges. Once the carefully crafted balance of Miranda is disturbed, there is no principled basis on which to stop further erosion of the rule. Perhaps the next challenge will mirror that in Spring, supra, where the defendant contended his waiver was not knowing and intelligent because he was not informed of the subject matter in which the police were interested or the exact use to which the information sought would be put. If a suspect cannot intelligently waive his right to the presence of counsel without calibrating information that he did not have, it might logically follow that unless he understands the particular significance of any information he gives, his waiver is equally unknowing. The majority rule likewise encourages a defendant to challenge his Miranda waiver because he was not informed of evidentiary developments in the case against him, a challenge rejected in Oregon v *647Elstad, 470 US 298, 317; 105 S Ct 1285; 84 L Ed 2d 222 (1985).

Similarly, the majority’s new requirement does not lend itself to easy administration. While Miranda rights must be read to every suspect about to undergo custodial interrogation, whether a suspect must be informed of the majority’s rule depends on the circumstances. Consequently, it raises serious questions of application. The majority’s rule requires that the police inform a suspect that an attorney wishes to see him “ ‘whether that request comes over the police station counter, over the telephone, or via messenger.’ ” Ante at 618, quoting People v Houston, 42 Cal 3d 595, 615; 230 Cal Rptr 141; 724 P2d 1166 (1986) (Bird, C.J., concurring in part and dissenting in part). This rule opens Pandora’s box with respect to challenges:

[T]he duly of police to inform a suspect that an attorney seeks to communicate with the suspect raises a number of other issues that the Court will surely need to address before long. For example, how quickly must the police relay the information that an attorney is available? If an attorney calls the police station, is the officer receiving the call obliged immediately to put aside all other matters and race to inform the investigating officers? Does the right attach at the time of communication or at some reasonable time thereafter? If the suspect should blurt out a confession a moment before an officer seeking to impart the availability of counsel enters the room, does the statement become retroactively involuntary even though the police made every effort to honor a defendant’s rights? . . .

Also, what duty do police officers have to provide full and accurate information concerning the attorney’s identity? . . . And we will eventually have to wrestle with the nasty little issue of whether a negligent misstatement of the information concerning that attorney would have any effect on a subsequent waiver. [State v Reed, 133 NJ 237, 280-281; 627 A2d 630 (1993) (Clifford, J., dissenting).]

*648As the dissent in Reed illustrates, the majority’s rule will disturb Miranda's clear, bright-line rule. An officer may no longer rest assured that as long as he reads the Miranda litany to the suspect, and the suspect informs him that he understands them and waives them, that he has adequately protected the suspect’s rights under the Fifth Amendment. Now, a seemingly valid waiver will always be open to challenge.

The majority compounds its error by holding that a waiver is invalid per se if a suspect is not informed of an attorney’s attempted contact. This is contrary to Miranda itself and to our own precedent, both of which require the waiver inquiry to be resolved by considering the totality of the circumstances. 384 US 475; People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988); see also Fare v Michael C, supra at 724-725 (holding that the totality of the circumstances test applies when determining whether a juvenile waived his Miranda rights). The totality of the circumstances test is preferable to a rule per se because “a waiver of rights may or may not, depending on the totality of the circumstances, be vitiated by the failure of the police to fulfill their responsibility to inform the suspect.” State v Stoddard, 206 Conn 157, 163; 537 A2d 446 (1988).

To support creation of an exclusionary rule per se, the lead opinion reasons as follows:

“When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.” State v Haynes, 288 Or 59, 75; 602 P2d 272 (1979). The right to counsel becomes meaningless if a suspect cannot communicate with his attorney or can only *649speak with him after the suspect has given a statement. [Ante at 617.]

Close examination of these two sentences, however, reveals that the lead opinion focuses on the wrong person in the attorney-client relationship. The privilege against self-incrimination is personal to the suspect. United States v Scarpa, 897 F2d 63, 69 (CA 2, 1990); People v Ledesma, 204 Cal App 3d 682, 694; 251 Cal Rptr 417 (1988).17 Likewise, a person’s rights under Miranda may not be invoked by a third party. Failure to inform the suspect that an attorney would like to speak with him no more “frustrates” the suspect’s right to consult with counsel than if counsel had accompanied his client to the police station and was sitting outside the interrogation room. Rather, it “frustrates” the attorney’s attempts to consult with the suspect. More precisely, it frustrates the interest of the third party who has retained the attorney, or the interests of those who hold the view that confessions and admissions are not socially desirable. Likewise, suggesting that the right to counsel would be “meaningless if a suspect cannot communicate with his attorney” focuses on the attorney, not the suspect. The right to counsel is not “meaningless” if the attorney cannot communicate with a suspect because the *650suspect has not indicated a desire to speak with the attorney. By contrast, the prophylactic protections created by Miranda were intended to protect suspects, not their families, their principals in crime, or their attorneys.18

The majority rule might also raise serious equal protection concerns. Suspects who have a retained attorney whom they can call on a moment’s notice, or who have supportive, wealthy families who know attorneys personally, obtain the benefit of the result of the majority opinion. Other beneficiaries include “professional criminals” who have previously had contact with the law. Indigent suspects, however, who have had no previous experience with law enforcement, will receive no assistance from the holding of the majority. As eloquently stated by the dissent in Reed:

[T]he Court’s rule creates an illogical or unfair advantage for some suspects. Those suspects who are taken into custody in the presence of others, or who have previously obtained a private attorney, or who have previously required the services of a public defender — and therefore are more likely to be the beneficiaries of someone’s call to an attorney on their behalf — will be found to have been coerced if not alerted should an attorney arrive at the station house. On the other hand, the indigent defendant with no previous experience with law enforcement who is arrested while alone — and hence “out of the loop” as far as legal assistance is concerned — although subjected to identical interrogation techniques will have knowingly and voluntarily waived the right to counsel. The rule therefore results in two classes of suspects and favors those who are more *651likely to have access to counsel. Such intolerable incongruities result when the emphasis shifts to events entirely unrelated to the suspect’s knowledge rather than focusing on the sole person who matters in evaluating the validity of a suspect’s waiver — the suspect. [133 NJ 279 (Clifford, J., dissenting).]

The unequal treatment created by the majority, however, may be short-lived. Today’s ruling will invite an indigent suspect to challenge the rule on equal protection grounds, claiming that the Miranda litany must be expanded to include the admonition that not only do you have a right to a free attorney if you cannot afford one, but that a free attorney is presently available and wants to talk with you. The majority is chargeable with knowledge that, given such an argument, the extreme position advocated in an amicus brief in Miranda — that the actual presence of counsel is necessary to dispel the coercion inherent in custodial interrogation — may' become the law in Michigan. By opting for less intrusive warnings, the Miranda Court rejected that position. So should we.

The trial court found that “each defendant had made a voluntary statement with full knowledge of his Miranda rights,” 208 Mich App 221, 226; 527 NW2d 66 (1994), but believed that under Wright, the police committed a fatal error in failing to inform the defendants that an attorney was retained for them. Thus, the trial court concluded that the waivers were not knowing, and the confessions were suppressed. The Court of Appeals affirmed, reasoning that the rationale used in Wright by either Chief Justice Cavanagh or Justice Mallett would support sup*652pressing the confessions.19 The majority affirmed the suppression of the confessions, albeit on slightly different grounds.

Given the lead and concurring opinion’s desire to find the waivers unknowing, noticeably and understandably absent from either opinion is any reference to defendants’ testimony at the suppression hearings. Analyzed properly, there is no question that the defendants understood their rights under Miranda and knowingly and intelligently waived those rights.20

Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Moran, supra at 422.]

At the suppression hearings, both defendants testified that they read, understood, and signed the Miranda waiver forms.21 There is no allegation that *653defendants did not comprehend the substance of the *654rights provided by Miranda. There is no basis to question either defendant’s cognitive ability; both were attending college and doing well.22 Both testified that they knew they had a right to an attorney.23 Defendants clearly understood that the police intended to *655use what they said against them because they both testified that they told the police the truth in the hope that the police would “go easy” on them and allow them to go home.24 Bender testified that he knew he should not sign the waiver form and asked the police for a reason why he should do so.25 Review of the tes*656timony at the suppression hearings, focusing only on what the suspects knew and understood, leads to the inexorable conclusion that both defendants knowingly and intelligently waived their Miranda rights. As a matter of law, this is all that is necessary for a constitutionally valid waiver.

Absent any claim of coercion, the fact that there were developments unknown to defendants — that an attorney had telephoned the station in Bender’s case, or that his mother had arrived in person with the message that he was not to speak until the attorney arrived in Zeigler’s case, had no bearing on whether the waivers were constitutionally sufficient. Similarly, it is irrelevant to a waiver analysis that each defendant testified that had he known an attorney had been retained for him, he would have heeded the attorney’s advice.

A waiver may be knowing and intelligent in the sense that there was awareness of the right to remain silent and a decision to forego that right, but yet not knowing and intelligent in the sense that the tactical error of that decision was not perceived. But this is no bar to an effective waiver for Miranda purposes, for it “is not in the sense of shrewdness that Miranda speaks of ‘intelligent’ waiver,” and thus in “this context intelligence is not equated with wisdom.” [1 LaFave & Israel, Criminal Procedure, § 6.9, p 527, quoting Collins v Brierly, 492 F2d 735, 739 (CA 3, 1974).]

*657This reasoning applies to the Miranda right to an attorney as well. A suspect’s choice to forgo the presence of an attorney in the interrogation room will almost always be a tactical error. It is irrelevant, however, that, with hindsight, the suspect regrets his decision and would have done differently had he had the information needed to make the best decision.

Finally, from a pure policy standpoint, it is appropriate to find a valid waiver in these cases. Defendants made a conscious choice to tell the truth to the police, rather than exercise their right to remain silent, believing as a consequence that the police would “go easier” on them and release them sooner. No societal goal is served in protecting the defendants against the consequences of their own intelligent choices.26 Nor is it desirable to suppress a presumptively truthful statement, voluntarily made, that aids in a criminal prosecution.

Finding a waiver in these cases upholds the eminently sound principle that a truthful, uncoerced confession will be used in prosecuting crime. The majority devalues confessions, yet does not explain why “planishing people for what they reveal from their own mouths” is less acceptable than the common practice of convicting defendants using the testimony of others.27

To suppress these statements also hinders post-Miranda law enforcement. Miranda allows the suppression of some constitutionally obtained confessions in order to ensure that no omconstitutionally *658obtained confessions are admitted. The rule set forth by the majority disturbs the delicate balance created in Miranda between confessions, which are desirable, and coercion, which is not. The balance is now skewed not to protect against coercion, but to discourage confessions.

In short, there is no support in the Michigan Constitution for the rule announced today. I would adopt the holding and reasoning of Moran v Burbine, and consequently, would reverse the decision of the Court of Appeals.

Riley and Weaver, JJ, concurred with Boyle, J.

Although a majority of the Court concludes that suspects must be told that an attorney is attempting to contact them, even when they have validly declined the invitation to speak with an attorney, four justices cannot agree on the rationale for why this information must be provided. Justices Cavanagh, Levin, and Mallett believe that such a right is constitutionally required by Const 1963, art 1, § 17, while Chief Justice Brickley creates the obligation by formulating a new prophylactic rule that appears to be an outgrowth of concerns that generated the Miranda warnings. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

Miranda, n 1 supra.

Prosecution will be thwarted or substantially hampered in cases of urgent social concern, such as domestic abuse, child abuse, sexual abuse, conspiracy to possess, or possess and distribute controlled substances, and myriad other situations in which there is an absence of corroborating physical or documentary evidence.

Ante at 610.

The federal provision, in relevant part, states: “No person . . . shall be compelled in any Criminal Case to be a witness against himself . . . .” The parallel Michigan provision, in relevant part, states: “No person shall be compelled in any criminal case to be a witness against himself . . . .”

Article 1, § 17, was amended in the 1963 Constitution to include the following provision:

The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.

Defendants in this case do not argue, however, that this additional language had any effect on the protection against self-incrimination.

Const 1963, art 1, § 17.

The lead opinion’s contention in n 13, ante at 611, that Wright addressed the knowing and intelligent prong of the waiver inquiry continues to ignore the fact that only three justices agreed with the statement from Wright that is quoted in n 13. The quoted material is found on page 155 of Wright. This is a portion of Justice Mallett’s opinion that only garnered the votes of Justice Levin and Justice Cavanagh.

The interaction between a state constitutional guarantee against compelled self-incrimination and the Fifth Amendment was recently addressed by the Illinois Supreme Court. People v McCauley, 163 Ill 2d 414; 645 NE2d 923 (1994). In McCauley, a majority concluded that the Illinois Constitution provided greater protection than the Fifth Amendment. Although the dissent argued that the cases relied on by the majority did not estab*636lish a difference between the Illinois Constitution and the Fifth Amendment, the majority in that case, unlike the msgority in this case, at least attempted to justify the departure by analyzing the constitutional convention dialogue and previous Illinois opinions.

Moser, supra at 305 (emphasis added).

The reference to incommunicado interrogation is similarly puzzling. Interrogation is not “incommunicado” if one knows that one has a right to *643have an attorney present during interrogation and may exercise that right at any time.

The “evil” a majority of this Court seeks to prevent is not coercion, but the confession, which the attorney will either advise the client he should not make or prepare to defend himself against claims of ineffectiveness or malpractice.

What the rule does is add another prophylactic right to the Miranda litany destined not to be a prophylactic right, but a preclusive stopper. The right to be informed of the presence of counsel has no bearing on whether the waiver is knowing or voluntary; instead, it is a new right added to those enumerated in Miranda. The police must now inform a suspect about to undergo custodial interrogation that he has the right to remain silent, that anything he says may be used as evidence against him, that he is entitled to the presence of an attorney, either retained or appointed, and that an attorney has been retained for him and has attempted to contact him.

The “duty to inform” a suspect that an attorney would like to speak with him is not required by the constitution or Miranda. Thus, defendant Bender’s brief aptly refers to this novel requirement as a “Miranda-like right[ ].”

The lead opinion goes on to state:

Once the suspect signed the waiver form, police could interrogate the suspect in isolation, without the assistance of his own lawyer, even if that lawyer is making an actual effort to consult with the suspect. [Ante at 615.]

Interestingly enough, it would be very difficult to characterize counsel in this case as the suspect’s “own lawyer.” There was no attorney-client relationship in either case, and neither defendant requested counsel. Unlike the picture the majority attempts to paint of a suspect and an attorney desperately trying to contact each other, the real scenario is the picture of a desperate lawyer attempting to contact a potential client.

The lead opinion’s quotation from Miranda is tautological. The government has not “ ‘become] ] a lawbreaker,’ ” ante at 615, n 19, until this Court says that it is the law that a suspect must be rescued from his own choice.

Grano, supra at 40.

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