¶ 69. {dissenting). As a Justice on this court, but also as a father and a grandfather, I abhor the abuse of the baby, Thomas, that resulted in his death. While I am repulsed by the mistreatment of this baby and of any child, I write to caution the great majority of excellent Wisconsin law enforcement officers that they should not emulate the interrogation tactics that were used in this matter. Such tactics resulted in statements here that should not have been found reliable and trustworthy and should instead have been suppressed under the totality of the circumstances test. Even when medical evidence of an earlier brain injury and internal bleeding suffered by this baby was brought to the attention of law enforcement, it appears that such evidence was ignored, and the focus remained on just one suspect, Jennifer Ward, to the exclusion of any other person who could have caused the injuries that were ultimately fatal.
¶ 70. I agree wholeheartedly with the majority's observation that "[w]hen the courts set out principles that explain constitutional rights, police are better able to understand what they can and cannot do when interrogating suspects." Majority op., ¶ 62. That is precisely why I dissent in this case. The majority is content to give the court's stamp of approval to the tactics used here, but it should not be oblivious to the message this ruling will send.
*356¶ 71. I find that message very disturbing in light of much case law from this court, from the courts of numerous other states, and from the United States Supreme Court, discussing the very real dangers of incommunicado questioning,1 a method of investigation which impinges on both rights at issue here: the right to have only voluntarily made statements entered in evidence and the right to counsel. A primary concern of mine is for the reliability and trustworthiness of the statements that I fear, as a result of the majority's opinion, will be used as evidence in the future.
¶ 72. In finding that statements by Ward were voluntary, the majority focuses on technicalities — such as that Ward was told in the nighttime hours that the strict prohibition placed on phone calls by her did not preclude a call to an attorney — and understates by at least 23 hours the amount of time Ward was held incommunicado,2 a key factor in the totality of the circumstances.
¶ 73. For the reasons given below, I therefore respectfully dissent.
*357I
A. The voluntariness of the statements
¶ 74. A determination of a statement's voluntariness is made based on the totality of the circumstances, "balancing . .. the personal characteristics of the defendant against the pressures imposed upon the defendant by law enforcement officers." State v. Hoppe, 2003 WI 43, ¶ 38, 261 Wis. 2d 294, 661 N.W. 2d 407.
¶ 75. While I agree that Ward's characteristics tend to weigh in favor of a finding of voluntariness, the tactics of the police should give us all pause. The statements at issue here were obtained through a troubling mix of deceptive and manipulative methods, employed on a suspect who was at every turn blocked from contact with anyone, including a lawyer and family members who were present and waiting just outside a door. This methodical isolation began at the hospital before Ward was even in custody and continued throughout the remainder of a day, a night, and the next morning, for a total of more than 24 hours until the third interrogation produced the statements the police were seeking.
¶ 76. The first questioning of Ward began at approximately 9:30 a.m. in her hospital room. It would be well into the next day before she spoke to anyone besides her interrogators or the jailer. When Detective Glenn Schaepe (Schaepe) arrived at the hospital, he sent Ward's daughter out of the room. He later turned away a friend of Ward who asked to speak to her in the hospital room. He turned Ward's husband away. He turned her attorney away on one occasion and ignored him when he made a second attempt to see Ward at the jail.
¶ 77. The United States Supreme Court has acknowledged that holding a suspect incommunicado is problematic. When the Court addressed a situation in *358which the suspect in police custody had been told that he could not make a call to his wife until he had signed a confession, the Court noted, "We cannot blind ourselves to what experience unmistakably teaches: that even apart from the express threat, the basic techniques present here — the secret and incommunicado detention and interrogation — are devices adapted and used to extort confessions from suspects." Haynes v. Washington, 373 U.S. 503, 514 (1963).
¶ 78. Haynes "gave in only after consistent denials of his requests to call his wife, and the conditioning of such outside contact upon his accession to police demands." Id. Similarly, it was only at the beginning of the third interrogation session, on the second day, that Ward had the first indication from Schaepe that she could contact her husband. The first words out of her mouth were, "[Can I] make a phone call and talk to my husband?" Schaepe’s response: "Yeah. Yeah. As soon as we're done here." An hour later, at the end of the interrogation, she asked again, "The call thing[ — ] are you gonna [ — ?]" He then responded, "Yeah. That's lifted." It was then 11:17 a.m., almost 26 hours after Schaepe had begun the initial questioning of Ward. She had been held incommunicado until that point in time.
¶ 79. In Darwin v. Connecticut, 391 U.S. 346 (1968), the United States Supreme Court again addressed the tactic of holding a suspect without contact until a confession is extracted:
The inference is inescapable that the officers kept petitioner incommunicado for the 30 to 48 hours during which they sought and finally obtained his confession. Considering the "totality of the circumstances[,]" we conclude that the court erred in holding that the confession and the partial re-enactment were voluntary. The denial of access to counsel and the outside *359world continued throughout, and there was "no break in the stream of events" from arrest throughout the concededly invalid confessions of [the first day] to the confession and re-enactment of [the second day] "sufficient to insulate" the final events "from the effect of all that went before."
Id. at 349 (citations omitted).
¶ 80. In dissent in Moran v. Burbine, Justice Stevens decried the majority's willingness to accept the incommunicado questioning of a suspect in the service of obtaining a confession where the police failed to notify the suspect of the presence of an attorney retained on his behalf:
The core of the Court's holding is that police interference with an attorney's access to her client during that period is not unconstitutional. The Court reasons that a State has a compelling interest, not simply in custodial interrogation, hut in lawyer-free, incommunicado custodial interrogation. Such incommunicado interrogation is so important that a lawyer may be given false information that prevents her presence and representation; it is so important that police may refuse to inform a suspect of his attorney's communications and immediate availability. This conclusion flies in the face of this Court's repeated expressions of deep concern about incommunicado questioning. Until today, incommunicado questioning has been viewed with the strictest scrutiny by this Court; today, incommunicado questioning is embraced as a societal goal of the highest order that justifies police deception of the shabbiest kind.
Moran v. Burbine, 475 U.S. 412, 437-439 (1986) (Stevens, J. dissenting).
¶ 81. Our court has had occasion to discuss similar police tactics as well. In Phillips v. State, 29 Wis. 2d 521, 139 N.W.2d 41 (1966), we addressed, among other *360things, the propriety of holding a suspect incommunicado from 4:45 p.m. one day until the next morning. While the court's strong language was made in the context of a discussion of how long a person could be detained before being brought before a magistrate, the opinion made some trenchant observations about the discretion of police to hold suspects incommunicado:
The usual investigatory methods of the police lend themselves to the search for a confession and we point out again as we did in Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N.W. (2d) 625, that long detentions are looked upon with disfavor by this court and seriously impair the voluntariness of the confession from the standpoint of psychological aspect of the usual police-station hazards. We find no justification in holding a person under investigation incommunicado no matter for what length of time. Such device smacks of the star chamber and is an indication in itself of overbearing on the part of the police. Delaying of a request of an accused to talk to his family or friends or his attorney should be considered strong evidence of overbearing pressure to obtain a confession or inculpatory statements.
Id. at 535-536 (emphasis added).
¶ 82. The pattern of coercion undoubtedly began at the hospital. For example, it is clear that Schaepe had already decided that Ward would be going to the Sheriff's Department for further questioning even before he asked her whether she would be willing to do so. Near the end of the interview, when only the two of them were in the room, Schaepe stated that Ward had not admitted what "specifically occurred":
[Y]ou don't want to take responsibility for what happened. You're talking you know general in general terms you are that you were the caretaker, but as far as *361what [] specifically occurred, I don't think you want to get into that. And that's why I believe you're having a hard time remembering things and you're having [] pain in your head. I'll make one more phone call here. And then maybe we can get on our way. ... (Emphasis added.)
¶ 83. Only later did Schaepe tell Ward that he would like to "go over to the Sheriffs Department" and that someone "can give [Ward] a ride over to the Sheriffs Department" because he knew she "didn't have a ride now." He knew that because he had sent away the person who had come to drive her home. While I note that no party specifically identifies at what point Ward was taken into custody, the State concedes that Ward was in custody by the second interrogation. Majority op., ¶ 12. Ward made no inculpatory statements while in the hospital room. The statements Ward made in that interrogation were consistent: she repeatedly said that she had not shaken the baby. (Even when Schaepe falsely stated that Ward's daughter had told police "that the child was crying hard and she saw you shake the baby," Ward responded, "I don't remember shaking him though."3) While the pattern that would *362continue throughout the next day did begin there, nothing that Schaepe did at the hospital, standing alone, rose to the level of coercion that would render those statements involuntary.
¶ 84. I am satisfied under the totality of the circumstances that the tactics used here, including holding Ward incommunicado and using deceit, rendered the statements given by Ward in the two subsequent interrogations and the many reenactments involuntary; such statements thus should have been suppressed.4
*363B. Waiver of the right to counsel
¶ 85. In finding that the waiver of counsel was valid, the majority accepts the surprisingly low standard set by the United State Supreme Court in Burbine. Courts in at least thirteen states have made clear that they will not accept Burbinés standard and will not tolerate actions like those that occurred in this case. The fact that Ward did not know (because police refused to tell her) that her attorney came to the building where she was being interrogated on two separate occasions and asked to speak to her is indeed significant. Such jurisdictions have rightly concluded that a waiver of *364counsel made under such circumstances cannot be "knowing" when police conduct keeps the accused from knowing that counsel is present and available. Those jurisdictions have therefore ruled any waiver of counsel invalid where police engage in that kind of conduct, generally on the grounds that such conduct by police violates the state's constitutional guarantees of due process. We should do the same.
¶ 86. In finding that the waiver of counsel was valid, the majority also utilizes what amounts to a legal technicality, the strained and artificial distinctions in Fifth and Sixth Amendment jurisprudence. Under that jurisprudence, the analysis of a waiver's validity often turns on the rather arbitrary question of when charges were filed. It appears, given the fact that the same law enforcement officer who was involved in State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999), conducted the investigation here, that the lesson of Hornung has not been lost on some police officers. In this case, there was a conspicuous delay in filing charges until after multiple interrogations and reenactments, and the police thus succeeded in avoiding any danger that Ward would be eligible for the greater protections of the Sixth Amendment. But this case clearly illustrates the plain unfairness of the legal line-drawing between Fifth and Sixth Amendment constitutional protections and the legal artifices that control which Amendment is technically in play at a given point. We should do as other jurisdictions have done and, under our state constitution, treat a waiver of the right to counsel the same regardless of whether it occurs before or after charges are filed.
¶ 87. Ward's waiver of her right to counsel should therefore be found invalid for two reasons. First, it was not knowing and voluntary because police refused on *365two occasions to inform her that her attorney was present in the building where she was being interrogated and was available to assist her. We should follow the lead of the many states that have established that under such conditions, a waiver of counsel cannot be knowing and is thus invalid. Second, Ward's statements to the police about wanting to talk with her husband about getting an attorney should be considered a sufficient invocation of her right to counsel, and we should follow the lead of the jurisdictions that have, relying on state constitutions, erased the arbitrary lines drawn by the United States Supreme Court as to how the timing of the filing of charges against a defendant determines what is sufficient to invoke the right to counsel under the Fifth and Sixth Amendments.
¶ 88. The United States Supreme Court's decision in Burbine — affirming the validity of a waiver notwithstanding the failure of police to notify the defendant of the presence nearby of an attorney retained on his behalf — undoubtedly cleared the way for the sort of holding we have from the majority in this case, but the case included some notable reservations. In Burbine, the Supreme Court acknowledged that the floor it was setting for compliance with the Fifth Amendment was below what certain states were willing to countenance: "We acknowledge that a number of state courts have reached a contrary conclusion." Burbine, 475 U.S. at 427. That has certainly continued to be the case. The Court also recognized that its rule was inconsistent with the American Bar Association Standards of Criminal Justice. Id. The Court paid little attention to what it conceded was "the numerical preponderance of lower court decisions" that would have held otherwise. Id.
*366¶ 89. Indeed, at least thirteen states5 have asserted their unwillingness to set the bar as low as Burbine does, to "permit police to delude custodial suspects, exposed to interrogation, into falsely believing they are without immediately available legal counsel and to also prevent that counsel from accessing and assisting their clients during the interrogation." People v. McCauley, 645 N.E.2d 923, 929 (Ill. 1994) (noting that "[t]he incommunicado interrogation and surrounding coercive environment likely to result from this objectionable practice is exactly the sort of scenario previously condemned by the United States Supreme Court in Escobedo6 and Miranda7"). As the New Jersey Supreme Court stated, the common thread among state courts' rejection oí Burbine is "one supervening principle: the atmosphere of custodial interrogation is inherently coercive... ." State v. Reed, 627 A.2d 630, 640 (N.J. 1993). That court got to the heart of the matter when it stated, "[0]ur decision today should be governed by a two-fold purpose: to enhance the reliability of confessions by reducing the inherent coercion of *367custodial interrogation and diminish the likelihood of unreasonable police conduct in those situations where police, knowing that an attorney has been retained for the suspect and is asking for contact with his or her client, are desperate to acquire a confession before the suspect speaks with the attorney." Id. at 642.
¶ 90. The majority's holding that Ward's statements were insufficient to invoke her Fifth Amendment right to counsel and that her waiver of that right is thus valid depends on the fact that the waivers being challenged occurred prior to the time Ward was charged.8 However, the timing of the filing of charges is something that is usually within the power of the law enforcement personnel who are conducting the investigation; through their manipulation of the chain of events, they can, as they did here, keep a suspect incommunicado for almost 26 hours, delay filing charges, and delay the time that the Sixth Amendment right to counsel attaches. I find it troubling that such manipulation can be dispositive of the validity of a waiver of the right to counsel under Fifth and Sixth Amendment jurisprudence.
¶ 91. In Hornung, the court of appeals found that the defendant's Sixth Amendment right to counsel had been violated when officers failed to permit the defendant to make telephone calls when he asked to do so. As noted above, the police detective involved in the present *368case was the same person who conducted some of the interrogation there, and, interestingly, the same attorney, Jeff Jackomino, waited at the Sheriffs Department, requesting to speak to the person being questioned. Hornung, 229 Wis. 2d at 474.
¶ 92. The court of appeals noted that, in contrast to requirements under a Fifth Amendment analysis, "[a]ny language requiring an 'unequivocal or unambiguous' request for counsel... is conspicuously absent from the Patterson Court's discussion of the petitioner's Sixth Amendment right to counsel." Id. at 478 (citing Patterson v. Illinois, 487 U.S. 285 (1988)). It therefore noted, "As Hornung's Sixth Amendment right to counsel was effectively triggered by its attachment and subsequent assertion, any subsequent inculpatory statements or fruits therefrom must be suppressed as violative of Hornung's constitutional rights." Hornung, 229 Wis. 2d at 480.
¶ 93. In the Hornung case, the interrogation occurred after a criminal complaint and warrant were filed against Hornung, and Hornung's rights under the Sixth Amendment were at issue. Here the interrogation of Ward occurred before the filing of criminal charges, and thus, because case law establishes that the right to counsel under the Sixth Amendment does not attach until charges are filed, it is Ward's protections under the Fifth Amendment that are at issue.
¶ 94. Under the applicable case law, an "unequivocal and unambiguous" request for counsel seems to be required to comply with the Fifth Amendment prior to the filing of charges; the requirement for such a clear invocation appears considerably less stringent under the Sixth Amendment. Id. at 476-480. See Patterson, 487 U.S at 296 n.9 ("This does not mean, of course, that all Sixth Amendment challenges to the conduct of *369postindictment questioning will fail whenever the challenged practice would pass constitutional muster under Miranda. For example, we have permitted a Miranda waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning; in the Sixth Amendment context, this waiver would not be valid." (emphasis added)).
¶ 95. In this case, Ward's repeated references in the interrogations to her wish to speak to her husband about retaining an attorney and her clear statements that it was unrealistic to expect her to be able to reach an attorney during nighttime hours would be viewed quite differently had she already been charged and had the Sixth Amendment right to counsel attached.9
¶ 96. Even if the circumstances presented here can be squared with the constitutional case law on waiver of right to counsel, it is worth considering bringing coherence to the odd patchwork of case law governing this area. To do so, we should turn, as many states have done, to our own constitution.
¶ 97. Courts in many states, including Alaska, Hawaii, Minnesota, New Jersey, New York, and Pennsylvania, have invoked their own state constitutions to create clearer and fairer rules about the conditions under which the right to counsel attaches10 and to *370provide a more robust right to counsel than the United States Supreme Court has found in the Fifth and Sixth Amendments.11 As the Supreme Court of Minnesota said:
We acknowledge that this rule provides more protection than is required by the United States Constitution. We do not cavalierly interpret our state constitution more expansively than the United States Supreme Court has interpreted the federal Constitution. However, the rule we. .. reaffirm here[] is consistent with our "long tradition of the assuring the right to counsel."
*371State v. Risk, 598 N.W.2d 642, 649 (Minn. 1999) (citations omitted).
¶ 98. Similarly, in State v. Liulama, the Intermediate Court of Appeals of Hawaii stated:
Logic and sound regard for the purposes of article I, section 14, as exemplified by case law and the HRPP favor the extension of the protection of article I, section 14, beyond that of the sixth amendment as expressed in Patterson. We do not believe that the pragmatic approach expressed by the Patterson court is in keeping with the importance attached by the Hawaii Supreme Court to the right to counsel under article I, section 14, as indicated above.
Accordingly, we hold that where an accused has been arrested and interrogated by the police and has not been specifically advised by a court or by his own counsel that he has the constitutional right to counsel at every stage of the proceeding following that arrest, he cannot be held to have knowingly and intelligently waived that right, and any statements made by him to the police absent such advice are inadmissible.
State v. Liulama, 845 P.2d 1194, 1203 (Haw. Ct. App. 1992), cert. denied, Feb. 22, 1993.
¶ 99. Previously, we have adopted higher standards of conduct for law enforcement personnel of the State of Wisconsin. We have stated before that this court "will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens' liberties ought to be afforded." State v. Knapp, 2005 WI 127, ¶ 59, 285 Wis. 2d 86, 700 N.W.2d 899 (quoting State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977)). This court should apply Article I, Section 8 of the Wisconsin *372Constitution,12 a provision that parallels the Fifth and Sixth Amendments of the United States Constitution, to cases like this one rather than continue to allow artificial distinctions to be drawn based on something as subject to manipulation as whether charges have been filed. I disagree with the majority's view that, unlike the approach we took in Knapp and Dubose, Article I, Section 8 should be interpreted here consistent with the United States Supreme Court's interpretation of the Fifth Amendment. Majority op., ¶ 18 n.3.
II
¶ 100. In summary, my great concern here is protecting the search for the truth that is supposed to be the point of a trial. This court should hold, under the totality of the circumstances, that the tactics used, including holding Ward incommunicado for almost 26 hours and using deceit, resulted in involuntary statements that should have been suppressed. After all, a large part of the reason for banning involuntary confessions is that they are unreliable. Jackson v. Denno, 378 U.S. 368, 385-86 (1964). While a confession extracted over the course of three interrogations of a suspect whose family members and counsel were fended off over the course of two days may technically resolve a case, such tactics — sure to be used, I fear, now that this court has given its blessing— *373leave lingering questions as to whether the right person was prosecuted and whether justice was served.
¶ 101. Further, we should follow the lead of other states and utilize Article I, Section 813 of our constitution to eliminate the artificial distinctions that exist between Fifth and Sixth Amendment jurisprudence, and we should utilize Article I, Section 714 of our constitution to find that a waiver of the right to counsel cannot be knowing, and therefore valid, where police have refused to inform an accused person that counsel is present and available.15 On the facts of this case, we should therefore find Ward's waiver of her right to counsel invalid.
*374¶ 102. For the reasons stated, I respectfully dissent.
¶ 103. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.The word incommunicado is defined in Black's Law Dictionary as "[w]ithout any means of communication" and "([o]f a prisoner) having the right to communicate only with a few designated people." Black's Law Dictionary 780 (8th ed. 2004). It is defined in the American Heritage Dictionary as meaning "[w]ithout the means or right of communicating with others ...." American Heritage Dictionary 914 (3d ed. 1992).
Majority op., ¶ 53 (citing cases on incommunicado interrogations and characterizing the period of time Ward was incommunicado as "[an] hour and 40 minutes" — apparently counting the time between approximately 5:20 p.m., when Ward was made to understand that she could not make any phone calls, and approximately 7 p.m., when Detective Glenn Schaepe told a jailer to inform her that the restriction on phone calls did not apply to a call to an attorney).
The majority wrongly characterizes Schaepe's statement as true but incomplete. Majority op., ¶ 27. Schaepe's statement is absolutely false. The child was unresponsive, not "crying hard," at the time that Ward's daughter saw her trying to revive him. As the majority points out, "use of deceit... does not by itself make an otherwise voluntary confession inadmissible." Id. (quoting State v. Fehrenbach, 118 Wis. 2d 65, 66-67, 347 N.W.2d 379 (Ct. App. 1984). There is no need, therefore, for the majority to assert the truth of a statement that was in no respect true. In any event, as the majority concedes, deceit remains a significant factor that is entirely appropriate to consider in an analysis of the totality of the circumstances. *362Majority op., ¶¶ 27, 28. In a recent United States Supreme Court case, the significance of such deceit was highlighted. Montejo v. Louisiana, 556 U.S. _ (2009) (remanding for a determination of whether a waiver was knowing and voluntary and noting that the determination may turn on the factor of misrepresentations made by police). There the deceit potentially affects the valid waiver of counsel; here it affects the voluntariness of the statements obtained from Ward.
I note in addition that the admission of the statements was not harmless beyond a reasonable doubt. The prosecution relied heavily on Ward's statements in the State's case and buttressed that evidence with testimony from medical experts. This is especially troubling in this type of case. Medical evidence in so-called "shaken baby" cases is very much in dispute at the moment, and the risk of wrongful convictions based on powerful but ultimately discredited expert testimony is significant. Given the evidence of prior brain injury, it is relevant, but not dispositive, that Ward was the person who was with the baby when he died. Majority op., ¶ 43 n.5. Scientific understanding of these tragic injuries is rapidly advancing, and in a similar case our court of appeals noted that "a significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome." *363State v. Edmunds, 2008 WI App 33, ¶ 15, 308 Wis. 2d 374, 746 N.W.2d 590, review denied, 2008 WI 40, 308 Wis. 2d 609, 612, 749 N.W.2d 661 (unpublished table decision). In Texas, the court of appeals recently granted a stay of execution in a similar case, where the defendant had consistently explained the child's injuries as resulting from being accidentally dropped onto a concrete floor. The court explained:
At the time of trial Dr. Roberto Bayardo, the highly experienced medical examiner for Travis County, testified that it was ''impossible" for Brandon's extensive brain injuries to have occurred in the way that applicant stated. He testified that her story was false and "incredible." In his opinion (and that of Dr. Sparks Veasay of Lubbock County), Brandon's injuries had to have resulted from a blow intentionally struck by applicant. He concluded, "I would say the baby was caught up with the hands by the arms along the body and then swung and slammed very hard against a flat surface." In his 1995 opinion, Brandon was an abused baby whom applicant had intentionally murdered.
But according to the affidavits and/or reports submitted by Drs. John J. Plunkett, Peter J. Stephens, Janice J. Ophoven, and Kenneth L. Monson, recent advances in the area of biomechanics and physics suggest that it is perhaps possible that Brandon's head injuries could have been caused by an accidental short-distance fall.
Ex parte Henderson, 246 S.W.3d 690, 691 (Tex. Crim. App. 2007).
See State v. Stoddard, 537 A.2d 446, 452 (Conn. 1988); Bryan v. State, 571 A.2d 170, 175 (Del. 1990); Haliburton v. State, 514 So.2d 1088, 1090 (Fla. 1987); People v. McCauley, 645 N.E.2d 923, 929 (Ill. 1994); Malinski v. State, 794 N.E.2d 1071, 1079 (Ind. 2003); West v. Commonwealth, 887 S.W.2d 338, 342 (Ky. 1994); Commonwealth v. Mavredakis, 725 N.E.2d 169, 178 (Mass. 2000); People v. Bender, 551 N.W.2d 71, 72 (Mich. 1996); State v. Lefthand, 488 N.W.2d 799, 801-802 (Minn. 1992); State v. Roache, 803 A.2d 572, 578 (N.H. 2002); State v. Reed, 627 A.2d 630, 643 (N.J. 1993); Dennis v. State, 990 P.2d 277, 286 (Okla. Crim. App. 1999); State v. Isom, 761 P.2d 524, 527 (Or. 1988).
Escobedo v. Illinois, 378 U.S. 478 (1964).
Miranda v. Arizona, 384 U.S. 436 (1966).
In overruling Michigan v. Jackson, 475 U.S. 625 (1986), a case prohibiting police from initiating interrogation of a defendant once he or she has requested an attorney at an arraignment or similar criminal proceeding, the United States Supreme Court recently decided that a waiver of right to counsel under the Sixth Amendment is not presumed invalid when police initiate interrogation. Montejo, 556 U.S. _. Montejo does not apply directly to the issues now before this court.
It may well be of some significance in a Sixth Amendment analysis that, as to statements made in the third interrogation, Ward initiated contact with the officers, given the language in Hornung: "As noted, once the Sixth Amendment has attached and been asserted, any subsequent waiver of the right to counsel is invalid, unless contact is initiated by the defendant." State v. Hornung, 229 Wis. 2d 469, 480, 600 N.W.2d 264 (Ct. App. 1999).
See, e.g., Blue v. State, 558 P.2d 636 (Alaska 1977) (holding that right to counsel applies at pre-indictment lineup); *370State v. Liulama, 845 P.2d 1194, 1200 (Haw. Ct. App. 1992) cert. denied, Feb. 22, 1993, (holding waiver invalid and any post-arrest statements by a defendant to the police inadmissible absent prior advice from a court or defendant's own counsel of his right to counsel); State v. Risk, 598 N.W.2d 642, 647 (Minn. 1999) (requiring police to cease questioning an accused who makes an ambiguous or equivocal statement invoking the right to counsel and noting that the holding "provides more protection than is required by the United States Constitution"); Commonwealth v. Richman, 320 A.2d 351, 353 (Pa. 1974) (holding that the right to counsel attaches at arrest).
In addition to states rejecting Moran v. Burbine, 475 U.S. 412 (1986), on state law grounds (see supra, ¶ 89 n.5), see, e.g., Alexander v. City of Anchorage, 490 P.2d 910, 914-15 (Alaska 1971) (extending types of cases to which right to counsel is applicable); State v. Sanchez, 609 A.2d 400, 407 (N.J. 1992) (establishing higher standard for the state to show valid waiver of right to counsel and noting that the state constitution affords "greater protection of the right to counsel than is provided under the federal Constitution"); People v. West, 81 N.Y.2d 370, 375 (N.Y. 1993) (imposing on police the burden of determining whether representation hy counsel continued where a suspect was interviewed a second time after three years had elapsed and noting that "[t]he State right to counsel is a cherished principle, rooted in this State's prerevolutionary constitutional law and developed independent of its Federal counterpart").
"[0]n occasion, we have interpreted a provision in the Wisconsin Constitution more broadly than the United States Supreme Court has interpreted a parallel provision in the United States Constitution. State v. Knapp, 2005 WI 127, ¶ 56, 285 Wis. 2d 86, 700 N.W.2d 899 (interpreting Article I, § 8 more broadly than the United States Supreme Court has interpreted the Fifth Amendment); State v. Dubose, 2005 WI 126, ¶ 45, 285 Wis. 2d 143, 699 N.W.2d 582 (also interpreting Article I, § 8 of the Wisconsin Constitution more broadly than the Fifth Amendment)." State v. Arias, 2008 WI 84, ¶ 19, 311 Wis. 2d 358, 752 N.W.2d 748.
Article I, Section 8 of the Wisconsin Constitution states in relevant part, "No person may be held to answer for a criminal offense without due process of law... nor may be compelled in any criminal case to be a witness against himself or herself."
Article 1, Section 7 of the Wisconsin Constitution states in relevant part, "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel...."
Justice Shirley Abrahamson, now Chief Justice, in her dissent in State v. Hansen, 136 Wis. 2d 195, 401 N.W.2d 771 (1987), supported the position I take today. Writing about Burbine, she noted:
By not imposing a federal constitutional requirement on the states and by encouraging the states to adopt their own rules governing police conduct, the United States Supreme Court recognizes the importance of the state courts in protecting individual rights and societal interests in our federal system.
The majority struggles to show that the police conduct in this case fits within the letter of the law which entitles an accused to be represented during police questioning. But it is clear that the police conduct violates the spirit of the law. It is with good reason that the Wisconsin Constitution exhorts us that "the blessings of a free government can only be maintained by a firm adherence to justice ... and by frequent recurrence to fundamental principles." Art. I, sec. 22.
*374While I am aware of and give due weight to the needs of law enforcement officers and the weighty social objectives of crime investigation, I conclude that this court demeans the defendant's statutory and constitutional rights to consult with an attorney by giving its seal of approval to conduct that kept an accused from seeing a lawyer his family retained for him.
Hansen, 136 Wis. 2d at 220-221 (Abrahamson, J. dissenting) (citations omitted).