dissenting:
I concur in Part I of the majority opinion and with Syllabus Points 1 and 2. I disagree with Part II and Syllabus Points 3 and 4, and therefore, dissent.
Wyer, when presented to a magistrate to be informed of the charges against him, checked a box on the magistrate’s form that indicated he wanted counsel appointed for him. But before a lawyer was appointed, police obtained a Miranda rights waiver and after interrogation he gave them a statement. Was his written request for counsel sufficient invocation of his right to counsel to prohibit police from further questioning? Of course, it was.
That this problem is here in 1984 indicates how uncertain the whole area of right to counsel has become. When does it attach? Where does it come from? When may it be waived, and how? The administration of justice is impaired when these questions remain unresolved. If - lawyers and judges still struggle for answers and cannot agree, how can well-meaning law enforcement officers know what behavior by them will make statements inadmissible and jeopardize their cases? Do these doubtful areas permit unscrupulous officers to wheedle confessions out of confused accuseds?
Crucial problems about defendants’ right to counsel are present in Wyer’s situation, and also when defendants assert that they orally requested lawyers, police claim they did not, police continue questioning, and statements are elicited. In both the written and oral request cases, defendants move to suppress, there are in camera hearings; and if a statement is admitted, the fact of waiver is reargued to the jury and appealed to us.1 Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1982); State v. McNeal, 162 W.Va. 550, 251 S.E.2d 484 (1978).
Are we wedded to a system that requires these continual judicial inquiries into whether confessions were taken in violation of a defendant’s right to counsel, or is there a fairer and more efficient solution?
Justice Miller eruditely analyzes federal fifth and sixth amendment cases about rights to counsel. Fortunately, we do not have to decide federal constitutional rights because Wyer is in our West Virginia court system, governed by West Virginia laws and our state constitution. See Herb v. Pitcairn, 324 U.S. 117, 65 S.Ct. 459, 89 L.Ed. 789 (1945); Minnesota v. National Tea Co., 309 U.S. 551, 60 S.Ct. 676, 84 L.Ed. 920 (1940); Fox Film Corp. v. Muller, 296 U.S. 207, 56 S.Ct. 183, 80 L.Ed. 158 (1935). When state standards are complied with, but a defendant still claims his federal rights have been abridged, then we must look to the federal constitution and United States Supreme Court decisions. This is an important and basic rule of federalism to which I strongly adhere. For that matter, *735I understand that the United States Supreme Court does also.
Matters raised in Wyer’s appeal are controlled by state law, and the majority’s discussion of federal rules to resolve them must be dicta. Federal examples may be persuasive authority if they conform to our constitutional provisions and our perceptions of justness and fairness; but we are not bound by them here. This dissent rests on adequate and independent state law. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).
However, I can observe that our federal brethren have woven a tangled web regarding right to counsel. That right, found in the sixth amendment and applicable to the states by the fourteenth, has, through subtle mechanations and incantations, become incorporated in the fifth amendment privilege against self-incrimination. The interface of the fifth and sixth amendment rights in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), is sensible and hardly obscure. Yet, somewhere along, seeking fairness, we, the judiciary, took a wrong fork and reached imperspicuity.
As I understand Miranda, the Supreme Court decided that to prevent governmental abridgement of one’s fifth amendment privilege against compulsory self-incrimination, a citizen must be informed that he has a right to remain silent; that anything he says may be used against him; and that he has a right to counsel regardless of his ability to afford a lawyer. Right to counsel is an important safeguard in preventing circumscription of the privilege against compelled self-incrimination. This truth does not, however, convert the right to counsel into a fifth amendment right. It is still a sixth amendment right. The fifth amendment requires that suspects be told about the sixth amendment, but it does not turn their right to counsel into part of the fifth.
When analyses started distinguishing between fifth and sixth amendment counsel rights, as our majority did here, confusion resulted, rather than fairness and predictability as the black letter Miranda rule intended.
No court would dispute the value of a criminal defendant’s opportunity to consult with his attorney before and during police interrogation. The United States Supreme Court has been adamant that when a defendant in custody requests a lawyer, all interrogation must cease. Edwards v. Arizona, supra.2 We have agreed and articulated the same rule for West Virginia, State v. Louk, supra, even before the United States Supreme Court, State v. McNeal, supra. This right is critically important and deserves an absolute prohibition against manipulation or ruse.
Justice Miller has elaborated on this distinction between fifth and sixth amendment rights to counsel in the majority opinion and in Syllabus Points 3 and 4.3 A fifth amendment right to counsel is absolutely protected against abridgement once exercised, but is not entitled to the same high quality of protection as the sixth amendment right to counsel. See Syllabus Points 3 and 4 of majority opinion.
There’s the rub. Prior to interrogation (whether or not the defendant has been charged with a crime) when he or she orally requests a lawyer, the fifth amendment *736counsel right prevents further interrogation. Miranda waivers are ineffective. After a defendant has been charged, that is, presented to a magistrate and informed about the nature of the charge, his sixth amendment right to counsel attaches4 and he has even greater protections against its waiver. That is what Syllabus Point 4 states.
One would conclude that if a Miranda waiver is inadequate to protect a fifth amendment counsel request made during or before interrogation, it would certainly be inadequate to protect the greater sixth amendment counsel right from waiver. Yet, what we are saying is that a defendant who has made a written request for a lawyer at a magistrate’s office may still be questioned the next day, sign a Miranda waiver, and make a statement regardless of the sixth amendment. The majority would permit all of the above to occur before an accused has ever consulted with his attorney! His automatically attached sixth amendment rights seem less, not greater. The reasoning leads to the absurd conclusion that an oral request for counsel during interrogation gets greater weight than a written one before interrogation begins! 5
*737It would logically seem that a written request for counsel should provide even greater protection against subsequent approaches by police because, if nothing else, it obviates the inevitable “swearing contest” between defendant and police about whether a lawyer was ever requested. Cf., State v. Easter, 172 W.Va. 338, 305 S.E.2d 294 (1983).
The sixth amendment right attaches when adversary judicial proceedings are initiated by the government. United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); Kirby v. Illinois, 406 U.S. 682, 683, 92 S.Ct. 1877, 1879, 32 L.Ed.2d 411 (1972). It does not require a request by defendant. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70 (1962). In Massiah v. United States, 377 U.S. 201, 84 5.Ct. 1199, 12 L.Ed.2d 246 (1964), the United States Supreme Court found statements elicited by government agents from an indicted defendant in absence of counsel to be inadmissible. Citing Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, Justice Stewart stated:
[A] Constitution which guarantees a defendant the aid of counsel at such a trial could surely vouchsafe no less to an indicted defendant under interrogation by the police in a completely extrajudicial proceeding. Anything less, it was said, might deny a defendant “effective representation by counsel at the only stage when legal aid and advice would help him.” 360 U.S., at 326, 79 S.Ct., at 1209 (Douglas, J., concurring).
[This] reflects a constitutional principle established as long ago as Powell v. Alabama, 287 US 45, 77 L ed 158, 53 S Ct 55, 84 ALR 527, where the Court noted that “... during perhaps the most critical period of the proceedings ... that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important, the defendants ... [are] as much entitled to such aid [of counsel] during that period as at the trial itself.” Id. at 57, 55 S.Ct. at 59, 77 L.Ed. 164. Massiah v. United States, supra 377 U.S., at 204-205, 84 S.Ct. at 1202, 12 L.Ed.2d at 249-250.
In State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982), we ruled that adversary proceedings commence when a defendant is presented to a magistrate, i.e., at presentment when he is statutorily required to be informed about the nature of the charges against him and about his right to counsel. W.Va.Code, 62-1-6. Assuming arguendo that this is the point where the right attaches, and not sooner,6 Syllabus Point 4 is entirely superfluous. The majority empha*738sized that defendant’s sixth amendment right is better protected against waiver than his fifth amendment right and hence erected “more stringent” barriers to waiver. It has required a written waiver and that defendant must have been advised of the nature of the charge against him and must know he is under arrest. As we just said, those events are already statutory prerequisites to the attachment of our constitutional counsel right.
Waivers must be voluntary, knowing and intelligent. Johnson v. Zerhst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Edwards v. Arizona, supra. The state has the burden to prove waiver by a preponderance of the evidence. State v. Rissler, 165 W.Va. 640, 270 S.E.2d 778 (1980). If the Sixth Amendment does not even require that a request for counsel have been uttered for the right to attach, and it is fundamental to justice that a defendant has that right to legal advice before the State’s case is sealed by pretrial interrogation, how can the State meet its burden to show waiver? A written waiver should not suffice because a written waiver does not even suffice to waive a fifth amendment counsel request in an Edwards situation. An Edwards request for counsel which stops all questioning and further interrogation, should not be accorded greater weight that an invocation of a sixth amendment right to counsel in writing before a magistrate, before police questioning. Edwards was decided on the lesser fifth amendment counsel right because the sixth amendment right had not yet attached under Arizona law. Id., fn. 7. In that footnote the court stated that Massiah held “that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel.” That clearly covers Wyer’s case. If we decided this case on the sixth amendment, Wyer should prevail.
Our state due process and right to counsel clauses, W.Va. Const. art. III, §§ 10 and 14, control this case. While they do not create a per se rule against waiver, they assure what I believe is a correct, simple solution: that a defendant’s right to counsel cannot be waived unless his counsel is notified and defendant has been afforded his lawyer’s advice. This rule would eliminate much of the confusion and consequent litigation on matters of right to counsel. It is simple and easy to apply.7 Upon a defendant’s request at the magistrate’s for an attorney to represent him — whether that request was oral or written — his right to counsel becomes a matter of record.8 From that moment on, police may not question him or her without first notifying his lawyer. It does not matter whether the officer doing the questioning was present in magistrate court or not. It is the duty of any officer or prosecutor to know whether a defendant has been presented and, if so, to contact defendant’s counsel before interrogating him.
When police officials notify defense counsel about a desire to question a defendant, and counsel informs them that he or she needs to speak with the defendant before questioning may continue, then police may not approach defendant until after that meeting has occurred. No competent attorneys would permit interrogation of their clients in their absence without hav*739ing discussed the matter and informed them about all the options they have. If a defendant then chooses to forego his right, his attorney can corroborate his waiver. In most cases, counsel will insist upon being present.
This rule would not prevent confessions. It only guarantees that confessions mil not be taken by violating a defendant’s right to counsel and helps assure they will be voluntary — standard prerequisites to their admissibility. Inadmissible and questionably admissible confessions complicate rather than expedite prosecutions. The United States Supreme Court brilliantly blasted this “lack of confessions” argument in Escobedo v. Illinois, supra 378 U.S., at 488-490, 84 S.Ct., at 1763-1765, 12 L.Ed.2d 984-986, where it concluded:
This Court also has recognized that “history amply shows that confessions have often been extorted to save law enforcement officials the trouble and effort of obtaining valid and independent evidence Haynes v. Washington, 373 US 503, 519, 10 L ed 2d 513, 524, 83 S Ct 1336 [1346].
We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. (Footnotes omitted.)
Practically, defendants who want to confess to relieve their guilt would still do so, with their attorneys present. Their lawyers could intervene to clarify potential problems of alleged promises or threats made by the government, and could evaluate their clients’ mental or physical capacities to waive rights. Lawyers’ presence or participation in the confession process would assure that defendants’ rights were honored and the process was fair. Right to counsel disputes would disappear. Disputes over voluntariness of post-presentment statements would become negligible because counsel would have solved problems before they occurred. Lawyers’ presence at post-presentment interrogation would serve the same purposes that the United States Supreme Court recognized to be useful at post-indictment line-ups, in United States v. Wade, 388 U.S. 218, 236, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149, 1162 (1967):
Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial line-up [and confession], which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment line-up was a critical stage of the prosecution at which he was “as much entitled to such aid ... as at the trial itself.”9 (Citations omitted.)
I need not repeat Justice Miller’s extensive research about jurisdictions that have adopted per se rules in these circumstances: other jurisdictions have made that wise decision based on their constitutions and rule-making powers. If New York, Oregon and California can function with similar rules, we certainly can. We strongly recommend the reader to cases cited in the majority’s opinion. Even if no other state had taken this step, I would not hesitate to adopt this no-waiver-without-counsel rule. Justice and judicial economy require it.
I recognize that a defendant can waive counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). I do not change that rule, but would hold that a defendant can only waive *740this right after notice to counsel and upon his lawyer’s advice. We have made similar rules in State v. Jackson, 171 W.Va. 329, 298 S.E.2d 866 (1982) (psychological problems), and State ex rel. J.M. v. Taylor, 166 W.Va. 511, 276 S.E.2d 199 (1981) (juveniles), and it is time to recognize that all defendants without counsel are constitutionally disadvantaged when faced with a government armory of armed police, prosecutors and professional interrogators. Cf., United States v. Ash, 413 U.S. 300, 308-310, 93 S.Ct. 2568, 2573-2574, 37 L.Ed.2d 619, 626 (1973).
I would make a syllabus point that a general written request for counsel bars any further police or prosecutorial questioning until the requester has talked to his lawyer.
. We recognize the exception for those rare cases when a defendant initiates conversation with the police after he has asked for a lawyer. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Louk, W.Va., 285 S.E.2d 432 (1982).
. His understanding about rights guaranteed to us by our federal constitution may coincide with the United States Supreme Court. I cannot say, for I find much confusion in their writings on this matter. I cannot distinguish between the rights nor comprehend the policies behind making the differentiation. The question of the fifth amendment right to counsel is not before us in this case, as the issue raised is under the sixth amendment. Therefore, I will discuss the matter as if the distinction is meaningful, if for no other reason than to justify my dissent from the majority’s rationale. I will leave for another day, and more appropriate case, my displeasure with our Court permitting the distinction to prevail. Pre- and post-presentment confessions have the same effect in a defendant’s trial. See generally, discussion of right to counsel in adversary contexts with defendant present in United States v. Wade, 388 U.S. 218, 236, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149, 1162 (1967).
. State v. Gravely, 171 W.Va. 428, 299 S.E.2d 375 (1982).
. Justice Marshall agreed with precisely this point in his dissent from denial of certiorari in Johnson v. Virginia, 454 U.S. 920, 102 S.Ct. 422, 70 L.Ed.2d 231 (1981). Certiorari was denied because the petition had not been timely filed. Marshall believed the court should have waived the requirement because the Virginia Supreme Court’s decision was "so clearly in conflict with Edwards" Id., at fn. 2. We quote his dissent at length because it is directly on point:
"The facts of this case are remarkably similar to those of Edwards v. Arizona. On December 12, 1977, petitioner was arrested by Virginia authorities and charged with robbery, premeditated murder in the commission of armed robbery, and use of a firearm in the commission of murder. At his arraignment the next day, petitioner asked the court to appoint counsel. An attorney was appointed. That afternoon, however, before petitioner had an opportunity to confer with his lawyer, a local police detective visited him in jail. This detective later testified that he neither knew nor cared whether petitioner had requested an attorney. The detective informed petitioner of his Miranda rights and obtained petitioner’s signature on a waiver form. He then initiated an interrogation session. During the course of this interrogation, petitioner confessed. Before his trial, petitioner moved to suppress the confession, arguing that he had not knowingly and intelligently waived his right to counsel. The trial court ruled the confession admissible and the Virginia Supreme Court affirmed. Petitioner was subsequently convicted.
"Under the circumstances, I think it clear that Edwards bars the use of petitioner’s confession. Having exercised his right to consult with an attorney, petitioner should not have been subjected to interrogation by the authorities until counsel had been made available. The State attempts to distinguish Edwards on two grounds. First, it points out that Edwards clearly expressed his desire to deal with police only through counsel, whereas petitioner here simply asked that an attorney be appointed. However, an accused is under no obligation to state precisely why he wants a lawyer. If we were to distinguish cases based on the wording of an accused's request, the value of the right to counsel would be substantially diminished. As we stated in Fare v. Michael C., 442 U.S. 707, 719, 61 L.Ed.2d 197, 99 S.Ct. 2560 [2568] (1979), ‘an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.’
“Second, the State notes that Edwards informed the police of his desire for an attorney, whereas petitioner only informed the judge at his arraignment. The State suggests that since the police did not know about petitioner's request, the interrogation was not improper. However, the police could easily have determined whether petitioner had already exercised his right to counsel; presumably, a prosecutor was present at the arraignment. They did not know about petitioner's request for a lawyer only because they made no effort to determine whether such a request had been made. But even if the police could not have discovered that petitioner had expressed a desire for an attorney, I would hold that the confession should not have been whether petitioner’s waiver of his right to counsel was knowing, intelligent, and voluntary. In determining whether these conditions were satisfied, the fact that the police were unaware of a prior request for counsel is only tangentially relevant. What is important, rather, is the state of mind of the accused. I think it is no more safe to assume that a waiver is valid when an accused has made a prior request to the judge at his arraignment, than when he has made the request to police. In both cases, the accused informs an individual in authority that he would like an attorney — and yet shortly thereafter, state officials, apparently disregarding his request, ask him to waive his rights.” (Footnotes omitted.) Johnson v. Virginia, 454 U.S. 920, 921-923, 102 S.Ct. 422, 423-424, 70 L.Ed.2d 231, 232-233 (1981) (Marshall, J., dissenting).
. I believe the formal adversary process includes any police investigation when the interrogee is the focus of an investigation. See generally, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Our state constitutional right to counsel, comparable to the sixth amendment right, should attach before presentment for purposes of interrogation, lineups and showups. As the United States Supreme Court said in Escobedo, 378 U.S. at 486, 84 S.Ct. at 1762, 12 L.Ed.2d at 983-984:
“[Preindictment interrogation] was a stage surely as critical as was the arraignment in Hamilton v. Alabama, 368 US 52, 7 L ed 2d 114, 82 S Ct 157, and the preliminary hearing in White v. Maryland, 373 US 59, 10 L ed 2d 93, 83 S Ct 1050. What happened at this interrogation could certainly ‘affect the whole trial,’ Hamilton v. Alabama, supra, 368 US at 54 [82 S.Ct. at 158] 7 L ed 2d at 116, since rights ‘may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.’ Ibid. It would exalt form over substance to make the right to counsel, under these circumstances, depend on whether at the time of the interrogation, the authorities had secured a formal indictment.
"The rule sought by the State here, however, would make the trial no more than an appeal from the interrogation; and the ‘right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.’ In re Groban, 352 US 330, 344, 1 L ed 2d 376, 387, 77 S Ct 510 [519] (Black, J., dissenting). ‘One can imagine a cynical prosecutor saying: "Let them have the most illustrious counsel, now. They can’t escape the noose. There is nothing that counsel can do for them at the trial.”' Ex parte Sullivan, 107 F Supp 514, 517-518.” (Footnote omitted.)
. I would make it applicable to all pre- and post-presentment interrogations, but the issue of pre-presentment interrogation is not before the court today. Therefore, I limit its applicability to post-presentment interrogations.
. The Supreme Court has made it clear that once the right to counsel has attached, a violation of defendant’s rights is not dependent upon the bona fides of the investigating officer. The focus must be on the rights of the accused, not the innocence or culpability of police. Cf., United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 2400, 29 L.Ed.2d 342, 353 (1976); Battie v. Estelle, 655 F.2d 692, 699 (5th Cir.1981); United States v. Brown, 699 F.2d at 588, 589 (2d Cir.1983). Once defendant has been presented, all police officers have a duty to know his right to counsel has attached. I heartily disagree with the majority's conclusion in footnote 24, supra. What is the substantive difference to the defendant if the officer knew or did not know he requested counsel? A confession thus elicited is equally damaging to a defendant’s effective representation by counsel.
. If police and prosecutors can function with the Wade and Massiah rules requiring defense counsel notice of a post-indictment lineup or post-indictment questioning, they can manage with a similar rule for post-presentment confessions.