¶ 65. (concurring in part, dissenting in part). I agree with the court's determination that the year-and-a-day rule was, until today, part of Wisconsin law. I also agree that this court has the authority to abrogate such a common law rule, and that the year-and-a-day rule is outdated and should be abrogated. However, I must disagree with the court's conclusion in Part V of the majority opinion that the *281abrogation of the rule should not be applied to this defendant. While I do not dispute the majority's assertion that this court may decide whether or not the "new rule" should be applied prospectively or retroactively, I take issue with the court's apparent disregard for a recent decision by the United States Supreme Court on this exact issue. In Rogers v. Tennessee, 532 U.S. 451 (2001), the Court held that retroactive application of abrogation of the year-and-a-day rule was permissible. This court has typically followed the interpretations of the Supreme Court on issues of due process. Because I see no reason why the court should not adopt the Rogers analysis and because I find it fair to apply the abrogation of the year-and-a-day rule to this defendant, I respectfully dissent.
¶ 66. Picotte argues that the Wisconsin Constitution may afford defendants greater protection than the United States Constitution. That is certainly true. However, this court has repeatedly held that the due process provisions of the United States Constitution and the Wisconsin Constitution are substantively the same and should be interpreted as such. State v. Hezzie R., 219 Wis. 2d 848, 891, 580 N.W.2d 660 (1998) ("This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation."); State v. Konrath, 218 Wis. 2d 290, 297 n.9, 577 N.W.2d 601 (1998); Reginald D. v. State, 193 Wis. 2d 299, 306-07, 533 N.W.2d 181 (1995). Moreover, in previous cases interpreting the interaction of ex post facto principles and due process analysis, this court has relied upon the guidance of the United States Supreme Court. See State v. Kurzawa, 180 Wis. 2d 502, 510-13, 509 N.W.2d 712 (1994). In Kurzawa, this court, quoting Marks v. United States, 430 U.S. 188, 191-92 (1977), *282held that the ex post facto and due process clauses share a common fundamental principle, that being "the notion that persons have a right to have fair warning of that conduct which will give rise to criminal penalties." Kurzawa, 180 Wis. 2d at 510-11.
¶ 67. In 2001, the United States Supreme Court in Rogers upheld a Tennessee Supreme Court decision, finding that retroactive application of the abrogation of Tennessee's year-and-a-day rule did not violate due process. Rogers, 532 U.S. 451. Once again dealing with the interplay of ex post facto and due process, the Court stated:
[W]e conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue."
Id. at 462 (emphasis added). The Court went on to find that abrogation of the year-and-a-day rule was neither unexpected nor indefensible and thus, retroactive application did not violate due process. Id. at 462, 466-67.
¶ 68. In holding that abrogation of the rule could be applied retroactively, the Supreme Court noted that the year-and-a-day rule "is widely viewed as an outdated relic of the common law." Id. at 462. The Court added that "practically every court" that recently examined the rule found that the rule had been rendered obsolete and that the original reasons for its existence no longer existed. See id. at 463. Although the Court acknowledged that due process does not require a defendant to be aware of the common law in all 50 states, it noted that in this case, such information was valuable to the analysis.
*283[T]he fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the ¿bolition of the rule in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed.
Id. at 464.
¶ 69. Additionally, the Supreme Court found it important that the year-and-a-day rule "had only the most tenuous foothold" in Tennessee's criminal law. Id. The rule was not part of the Tennessee statutory criminal code. Id. It had never served as the ground for any prosecution for murder in the state and had only been mentioned in Tennessee cases three times, in dicta. Id.
¶ 70. The Rogers decision provides the exact analysis we have been called upon to do in this case. The cases are strikingly similar both factually and legally. In Rogers, the defendant was charged with second-degree murder when the man he had stabbed 15 months earlier died from complications caused lay those wounds. Id. at 454. Like the defendant here, Rogers claimed his murder prosecution violated due process. The Supreme Court rejected these arguments.
¶ 71. The majority here asserts several reasons for applying the abrogation prospectively, including reliance interests, systemic stability, efficient administration, and maintaining an untarnished "image of justice." Majority op., ¶ 45. The majority suggests that the rule should not be applied retroactively because the defendant would not have been subject to liability for murder under the law as it existed at the time the defendant beat his victim and that such application of a new rule threatens important liberty interests. Majority op., ¶ 50. However, even the majority acknowledged, as it must, that regardless of the year-and-a-day *284rule, the defendant here cannot claim his conduct was lawful when committed. Majority op., ¶ 49.
¶ 72. The majority's analysis, though, defies the standards laid out by the Supreme Court in Rogers and ignores the balance already done by that Court. As noted, this court has long followed the precedents of the Supreme Court in this realm of the law, and the majority does not distinguish Rogers nor does it provide a valid reason for straying from Supreme Court precedent in this case. Under Rogers, the test for the appropriateness of retroactive application is whether the change in law was "unexpected or indefensible." Rogers, 532 U.S. at 462. The reasons for the Court's decision in Rogers apply with equal or more force in this case.
¶ 73. The majority in this case, like the Rogers Court, found that the year-and-a-day rule was, clearly outdated. Majority op., ¶¶ 30-37. Even the defendant here cannot provide a good reason for the rule's continued existence. Next, the Court in Rogers noted that the vast majority of jurisdictions had already found the year-and-a-day rule obsolete and abrogated it. Rogers, 532 U.S. at 462-64. The Supreme Court found that the overwhelming precedents abrogating the rule served fair notice to the defendant that the abolition of the rule should be anticipated. Id. at 464, 466-67. Adding the Rogers decision to those many precedents noted by the Court, I submit that the defendant in this case is in an even poorer position than Rogers to argue that the abolition of the rule was unanticipated.
¶ 74. Further, the Supreme Court found important that the year-and-a-day rule had but a "tenuous foothold" in the criminal law of Tennessee. In this case, Picotte argues that the rule had a stronger hold in Wisconsin law because its protections arose through the *285state constitution. Whatever the source of the rule in Wisconsin, it nonetheless appears that the rule has no stronger "foothold" than the Tennessee rule did. As in Tennessee, the rule is not part of the state statutory criminal code. See Rogers, 532 U.S. at 464. Additionally, the rule had only been mentioned in Tennessee cases three times, all in dicta. Id. Wisconsin has even fewer cases mentioning the rule. As noted by the majority, "the rule apparently has never been discussed in Wisconsin case law except in a territorial case." Majority op., ¶ 11 n.ll.1
¶ 75. In Kurzawa, 180 Wis. 2d at 511, this court acknowledged that the fundamental principle common to both ex post facto and due process analyses was "fair warning" of conduct that would give rise to criminal penalties. Under Rogers, such fair warning is fulfilled in this case. I disagree with the majority's stated concerns about unforeseen liability and appropriately rewarding those who challenge old laws. See majority op., ¶¶ 50-57, 62-63. The year-and-a-day rule has been overruled in the vast majority of jurisdictions that dealt with the issue. See Rogers, 532 U.S. at 463-64. The Supreme Court upheld abrogation of the rule and the retroactive application of the abrogation. Id. at 466-67. The rule hung on by a mere thread in this state. Given these factors, this defendant should not be able to *286successfully argue the change in the common law rule is unexpected or indefensible. Finally, the defendant's conduct here was not innocent when committed. Pi-cotte had warning that the injuries he inflicted could give rise to criminal penalties. He should not be rewarded simply because modern science allowed his victim to live more than a year and a day after he was beaten into a coma. As the Supreme Court in Rogers concluded:
There is, in short, nothing to indicate that the [state] court's abolition of the rule in petitioner's case represented an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court's decision was a routine exercise of common law decision-making in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported [state] case.
Rogers, 532 U.S. at 466-67.
¶ 76. For the foregoing reasons, I would adopt Rogers and conclude the abrogation of the year-and-a-day rule should be retroactively applied to- this defendant.
¶ 77. I am authorized to state that Justices N. PATRICK CROOKS and DIANE S. SYKES join this dissent.
1n addition to the case noted by the majority, the State noted in its brief that the court of appeals also once referred to the rule. In a case similar to the one at hand, the court of appeals mentioned that it would not address the "common law's ancient year and a day rule" because neither of the parties had raised the issue. State v. McKee, 2002 WI App 148, ¶ 21 n.8, 256 Wis. 2d 547, 648 N.W.2d 34 (internal citation omitted). While it did not address the issue, the court of appeals did note that the majority of states have abrogated the rule. Id.