[683]*683CAMPBELL, J.
The question is whether Article I, section 12, of the Oregon Constitution1 requires that persons detained for questioning by law enforcement officers be given warnings similar to those required by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), under the federal Fifth Amendment.2 We hold that it does not.
Two deputy sheriffs responding to a report of a vehicle off the road observed defendant about 150 yards from the disabled vehicle. When defendant saw the deputies he began to run, but stumbled and fell. The deputies approached defendant and assisted him back to their patrol car. The deputies suspected that defendant had been drinking, but at that time did not connect him with the disabled vehicle or suspect him of any crime. Defendant denied owning the vehicle. He told the police that he and another person had been drinking behind a nearby warehouse.
The officers learned from their dispatcher that defendant owned the car. Defendant then admitted that he owned the car and that he had been driving it when it went off the road. He was then arrested, given Miranda warnings, and later made further incriminating statements.
At trial on the charge of driving while under the influence of intoxicants, defendant moved to suppress his statements to the officers, relying on both the federal and state constitutions. The motion to suppress was denied. The trial court found that defendant’s initial responses were obtained during a field interrogation and that he was not “in custody” for the purposes of Miranda v. Arizona until he was arrested. The trial judge further found that defendant’s incriminating statements were made voluntarily.
Defendant was convicted. He appealed, relying on [684]*684both the Fifth Amendment and Article I, section 12, of the Oregon Constitution. The Court of Appeals affirmed the trial court. 70 Or App 675, 691 P2d 484 (1985). In his petition for review to this court defendant relied solely on Article I, section 12, saying that it requires a Miranda-type warning to be given earlier in point of time than does the federal Fifth Amendment under Berkemer v. McCarty, 468 US 420,104 S Ct 3138, 82 L Ed 2d 317 (1984).3
THE RIGHT TO REMAIN SILENT IN OREGON
The State of Oregon has recognized that its citizens have the right to remain silent in various circumstances by virtue of two statutory schemes, the adoption of common-law rules, and a constitutional provision. That right is spelled out in the following:
(1) ORS 135.070(1) provides that in a preliminary hearing the magistrate shall inform the defendant that he is not required to make a statement.
(2) ORS 136.425(1) provides that a confession or admission of a defendant “cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats.”
(3) State v. Wintzingerode, 9 Or 153, 163 (1881), held that the common-law rules governing the admissibility of confessions are in force in Oregon, including the rule that “confessions made by a prisoner while in custody, and induced by the influence of hope or fear, applied by a public officer having the prisoner in his charge” are not admissible in evidence.
(4) Article I, section 12, of the Oregon Constitution provides in part: “No person shall * * * be compelled in any criminal prosecution to testify against himself.”
[685]*685One of the issues in this case is whether the Oregon Constitution requires warnings similar to those specified in Miranda v. Arizona. In Miranda the Court required that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 US at 444. In our review of the Oregon law, in addition to the right to remain silent, it will be necessary for us to examine defendant’s related right to an attorney and defendant’s right to know that any statement he or she makes may be used in evidence.
(1) The magistrate is required to inform the defendant at the preliminary hearing.
ORS 135.070(1) provides:
“When the defendant against whom an information has been filed in a preliminary proceeding appears before a magistrate on a charge of having committed a crime punishable as a felony, before any further proceedings are had the magistrate shall read to the defendant the information and shall inform the defendant:
(1) Of the defendant’s right to the aid of counsel, that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant.” (Emphasis added.)4
The following statutes are part of the statutory scheme:
ORS 135.095:
“When the examination of the witnesses on the part of the state is closed, the magistrate shall inform the defendant that it is the right of the defendant to make a statement in relation to the charge against the defendant; that the statement is designed to enable the defendant, if the defendant sees fit, to [686]*686answer the charge and explain the facts alleged against the defendant; that the defendant is at liberty to waive making a statement; and that the waiver of the defendant cannot be used against the defendant on the trial.”
ORS 135.100(3)(a):
“The statement of the defendant shall be reduced to writing by the magistrate or under the direction of the magistrate and authenticated in the following form:
(a) It shall set forth that the defendant was informed of the rights of the defendant, as provided in ORS 135.095, and that after being so informed the defendant made the statement.”
ORS 135.115:
“If the defendant waives the right of the defendant to make a statement, the magistrate shall make a memorandum thereof in the proceedings; but the fact of the waiver cannot be used against the defendant on the trial.”
ORS 136.435:
“Evidence obtained directly or indirectly as a result of failure of a magistrate to comply with ORS 135.070 shall not be admissible, over the objection of the defendant, in any court.”5
To the best of our knowledge, this court has never interpreted or applied ORS 135.070(1) or 136.435 in a context that would be relevant to the issue in this case.
In State v. Hatcher, 29 Or 309, 44 P 584 (1896), overruled on other grounds by State v. McLean, 255 Or 464, 476, 468 P2d 521 (1970), the defendant was convicted of the crime of manslaughter. The defendant contended that the trial court committed error in admitting into evidence a written statement made by the defendant at the preliminary hearing. This court considered Hill’s Code section 1594 (now ORS 135.095) and reversed the conviction:
“* * * The introductory statement by the magistrate that ‘Defendant was informed of his right to make a statement, and proceeded as follows,’ would seem to imply that he was not informed of his right to waive making a statement, and [687]*687that such waiver could not be used against him. The statute, (Hill’s Code, § 1594,) provides that ‘When the examination of the witnesses on the part of the state is closed, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he sees fit, to answer the charge, and explain the facts alleged against him; that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial.’ The defendant not having been notified of this last clause by the magistrate, may have understood, when informed of his right to make a statement, that it was incumbent on him to make one, and that in doing so he was obeying a legal mandate, and not making a voluntary statement. The right to waive making such a statement implies that if one be made it is voluntary, and, therefore, admissible in evidence, but it cannot be regarded as being voluntarily made unless it appears that the accused was informed by the magistrate of his right to waive it, for if he made the statement under the belief that it was required of him by the magistrate it is inadmissible against him: State v. O’Brien (Mont.), 43 Pac. 1091 [(1896)]. There is nothing in the record to show that the statement was voluntarily made by the defendant, and hence it could not be admitted in evidence over his objection.” 29 Or at 311-12.
In State v. Andrews, 35 Or 388, 58 P 765 (1899), the defendant was convicted of exhibiting obscene pictures. This court reversed the conviction because the names of the witnesses examined before the grand jury were not endorsed on the indictment. This court by way of dictum said:
“In view of another trial, it becomes important to consider some of the alleged errors which may be avoided thereat. Evidence was introduced at the trial which tended to show that the pictures alleged to have been exhibited by the defendant were contained in a nickel-in-the-slot machine. The court, over defendant’s objection and exception, permitted evidence to be offered of what he said at his preliminary examination before the justice of the peace, tending to show his ownership of said pictures, without it being shown that he was cautioned as to his legal rights, or that such statements were voluntary. The organic law of the state provides that no person shall be compelled in any criminal prosecution to testify against himself (Const. Or. Art I, § 12); and our court, giving to this clause the liberal construction to which it is entitled, has held that, before the confessions of a defendant can be received in evidence in a criminal action, it must [688]*688appear that they were voluntarily made: State v. Moran, 15 Or. 262 (14 Pac. 419) [(1887)]. The transcript shows that the defendant * * * was present before the justice of the peace for examination on a criminal charge; and when the complaint was read, in the absence of his attorney, made statements which might tend to incriminate him. * * * The defendant could have made a written statement in that court in explanation of the facts alleged against him, but before he could be bound thereby it must have appeared that he was informed of his rights by the magistrate: Hill’s Ann. Laws, §§ 1594,1598 [now ORS 135.095 and 135.100(3)(a)]; State v. Hatcher, 29 Or. 309 (44 Pac. 584) [(1896)]. The justice’s court having no authority to try the defendant for the crime charged, his statements cannot be deemed a plea of guilty; nor are they in the nature of voluntary declarations against interest, made to an officer or person concerning the offense. But such statements were equivalent to testimony extorted from him when a prisoner at his preliminary examination. His situation rendered what he might then say concerning his guilt in the nature of a confession, and, there being no evidence that he was advised of his rights, or cautioned that any statement he should make might be urged against him in his subsequent trial, such confession was not voluntarily made, and the court erred in admitting it in evidence: [citations omitted].” 35 Or. at 391-92.
In State v. Stevenson, 98 Or 285, 193 P 1030 (1920), the alleged confession which was received in evidence was made to the district attorney in his office and was not a part of the preliminary examination. This court held that if the confession was admissible in evidence, it was not because of the provisions of Section 1781, Lord’s Oregon Laws (ORS 135.095), but because of the fact that it was an extrajudicial confession. “ ‘Judicial confessions’ are those made before a magistrate or in court in the due course of legal proceedings. ‘Extrajudicial confessions’ are those made by the party elsewhere than before a magistrate or in open court [citation omitted].” 98 Or at 291.
State v. Hatcher, supra, State v. Andrews, supra, and State v. Stevenson, supra, can only be read to say that at a preliminary hearing the magistrate is required to give the defendant the statutory warnings. Those cases cannot be stretched or bootstrapped into holding that a police officer or other person is required to give an individual in custody similar warnings in an extra-judicial situation. It is true that [689]*689Andrews cites Article I, section 12, of the Oregon Constitution for the proposition that before a confession may be received in evidence it must be made voluntarily, but the case does not imply that the magistrate’s statutory warnings must be given to make the confession voluntary in a non-judicial setting.
It is interesting to note that ORS 135.070(1) was enacted in its present form in 1963 and contains the three basic warnings which were promulgated by Miranda v. Arizona three years later in 1966.
(2) Statutory provision that confession is not admissible when induced by fear.
ORS 136.425(1) provides in relevant part:
“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats * *
The original predecessor statute was enacted October 11, 1864. It was compiled in the Deady Code as Section 214 and provided:
“A confession of a defendant, whether in the course of judicial proceedings, or to a private person, cannot be given in evidence against him, when made under the influence of fear, produced by threats * * General Laws of Oregon, ch 23, § 214, p 478 (Deady 1845-1864).
The statute was expanded by Oregon Laws 1957, chapter 567, section 1, to include the “confession or admission of a defendant.” (Emphasis added.)6
[690]*690It could be argued that ORS 136.425 is incomplete in that it is only concerned with confessions or admissions “made under the influence of fear produced by threats” and does not address confessions or admissions made because of promises of reward or immunity.
We know of no case that interprets or applies ORS 136.425 independently of the common-law rules on confessions and admissions.
(3) Common-law rules governing the admissibility of confessions.
In State v. Wintzingerode, 9 Or 153 (1881), this court was called upon to determine if the predecessor statute to ORS 136.425 (at that time identical to Section 214 of the Deady Code quoted above) was exclusive or if the common-law rules as to confessions still applied. The defendant was arrested for murder and while in custody Officer Mead said to him: “It would be better for you, Harry, to tell the whole thing.” The defendant then made his first confession. A day or two later Officer Cameron, who was in charge of the county jail, said to the defendant: “This is a pretty bad scrape you have got into. How did it happen?” 9 Or at 162-63. The defendant then made a second detailed confession. The trial court excluded the first confession but not the second.
On appeal the defendant contended that both confessions should have been excluded. The state contended that under the statute (now ORS 136.425) the first confession to Officer Mead was admissible and therefore the second confession to Officer Cameron also should be admissible. The state insisted that the statute altered the common-law rule and that “only those confessions can now be excluded which have been ‘made under the influence of fear produced by threats.’ ” 9 Or at 160. This court held:
“* * * The statute purports only to extend to one class of confessions, viz.: Those induced by threats. It does not even mention the other class, to wit: Those induced by promises or intimations of favor from persons in authority and having the party confessing in their custody.
“These two classes are distinct and rest on different foundations; and we are not able to perceive how one class can be effectual by implication merely, from legislation which only affirms the principles of the common law as to the other class.
[691]*691<<* * * * *
“Upon the whole we are satisfied that our statute is wholly affirmative and that the common law rules, governing the admissibility of confessions are still in force in this state.
U* * * * *
“There seems to be no conflict among the numerous authorities as to the rule, that confessions made by a prisoner while in custody, and induced by the influence of hope or fear, applied by a public officer having the prisoner in his charge, are inadmissible in evidence against him.” 9 Or at 162-63.7
The conviction was reversed because there was no showing that the motives for the original confession to Officer Mead had ceased to operate when the second confession to Officer Cameron was given.
In the 100-plus years since it was decided, State v. Wintzingerode, supra, has become the case most cited in Oregon on the law of confessions. A line of cases has developed in which the common-law rules in conjunction with ORS 136.425 have detailed and spelled out the admissibility of confessions.
In State v. Spanos, 66 Or 118,120,134 P 6 (1913), this court said:
“It is a fundamental rule of criminal law that a confession cannot be used against a defendant unless the prosecution can show its free and voluntary character, and that neither duress nor intimidation, hope nor inducement caused defendant to furnish such evidence against himself: State v. Wintzingerode, 9 Or. 153; [citations omitted].”
In 1947 this court in State v. Henderson, 182 Or 147, 173, 184 P2d 392 (1947), correctly summarized our previous caselaw:
“An extra-judicial confession is admissible in this State even though the officer to whom it was made did not inform the accused of his right to consult counsel, of his right to remain silent and of the fact that his declarations would be used against him: State v. Layton, [174 Or. 217, 148 P. (2d) [692]*692522 (1944)]; State v. Moore, 124 Or. 61, 262 P. 859 [(1928)]; and State v. Wilder, 98 Or. 130, 193 P. 444 [(1920)]. See also State v. Butchek, 121 Or. 141, 253 P. 367, 254 P. 805 [(1927)]; and, generally, see 22 C.J.S., Criminal Law, § 822, p. 1441, and 20 Am. Jur., Evidence, § 505, p. 435.”
Another of the fundamental rules is set out in State v. Ely, 237 Or 329, 332, 390 P2d 348 (1964):
“In this state, confessions and admissions are initially deemed to be involuntary. Before either can be received in evidence, the state has the burden of showing that it was voluntarily made, without the inducement of either fear or hope. ORS 136.540 [now ORS 136.425]; [citations omitted].”
In State v. Nunn, 212 Or 546, 553, 321 P2d 356 (1958), Justice Kester writing for the court summarized some of the rules relevant to the admission of confessions:
“A confession is not inadmissible merely because the defendant is in custody (State v. Folkes, 174 Or 568, 580, 150 P2d 17, cert. den. 323 US 779 [(1944)]), nor uninformed of his rights (State v. Henderson, supra, 182 Or at 173, 184 P2d 392), nor unrepresented by counsel (State v. Layton, 174 Or 217, 231, 148 P2d 522, cert. den. 323 US 728 [(1944)]), nor because he was not taken promptly before a magistrate (State v. Leland, 190 Or 598, 627,227 P2d 785 [(1951)], affirmed 343 US 790, 96 L ed 1302, 72 S Ct 1002, reh. den. 344 US 848 [(1952)]), nor because the confession is made in answer to questions which are accusatory or which assume defendant’s guilt (State v. Blodgett, 50 Or 329, 335, 92 P 820 [(1907)]; State v. Howard, [102 Or 431, 425, 203 P 311 (1921)]; State v. Henderson, supra, 182 Or at 173). * * *”8
Nunn continued:
“The test, so far as one can be formulated, is: ‘Was the inducement held out to the accused such as that there is any fair risk of a false confession, for the object of the rule is not to exclude a confession of the truth but to avoid the possibility of a confession of guilt from one who is in fact innocent.’ State v. [693]*693Green, [128 Or 49, 62, 273 P 381 (1929)]; State v. Folkes, supra, 174 Or at 580; State v. Linn, [179 Or 499, 507, 173 P2d 305 (1946)].” 212 Or at 553.
The above cases consistently demonstrate that under a combination of the common-law rules and ORS 136.425 that: (1) there is a distinction between judicial and extrajudicial confessions; (2) an out-of-court confession is not inadmissible because the defendant has not been advised of the right to counsel, the right to remain silent and of the fact that any statement may be used against the defendant; (3) the confession is initially deemed to be involuntary and the burden is upon the state to prove that it was voluntary; (4) the ultimate test is whether the confession was free and voluntary; (5) the key to the “free and voluntary” character of the confession is the inducement made to the defendant — was there any promise or threat made to the defendant which would elicit a false confession; and (6) since 1957 “admissions” have been treated the same as “confessions.”
(4) Article I, section 12, of the Oregon Constitution.
The relevant portion of Article I, section 12, of the Oregon Constitution is:
“No person shall * * * be compelled in any criminal prosecution to testify against himself.”
Our cases have not always been consistent when considering this provision of the Oregon Constitution.
In State v. Andrews, supra, this court said:
“* * * The organic law of the state provides that no person shall be compelled in any criminal prosecution to testify against himself (Const. Or. Art. I, § 12); and our court, giving to this clause the liberal construction to which it is entitled, has held that, before the confessions of a defendant can be received in evidence in a criminal action, it must appear that they were voluntarily made: State v. Moran, 15 Or. 262 (14 Pac. 419) [(1887)]. * * *” 35 Or at 391.
In State v. Neely, 239 Or 487, 493-94, 395 P2d 557, 398 P2d 482 (1965), this court said:
“The Oregon decisions excluding involuntary confessions have based the exclusion upon common-law rules of evidence, codified into an Oregon statute. ORS 136.540. State v. Wintzingerode, 9 Or 153, 160-165 (1881). We have never held [694]*694that the Oregon constitutional prohibition against self-incrimination (Art I, § 12) was the basis of this exclusionary rule and we need not determine that issue at this time. Malloy v. Hogan, [378 US 1, 84 S Ct 1489, 12 L Ed 2d 653 (1964)], and Escobedo [v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964),] make the right to remain silent during a police interrogation a Fourteenth Amendment right derived from the Fifth Amendment of the Federal Constitution.”
In State v. Classen, 285 Or 221, 226, 590 P2d 1198 (1979), this court made the following observation:
“Evidence law has long provided for excluding certain evidence as a class when its questionable reliability vitiates the value of its possible truthfulness in the particular case, apart from any question of constitutional law. One familiar example is the exclusion of coerced confessions; others are the exclusion of evidence obtained by polygraph tests, hypnosis, or ‘truth drugs.’ See State v. Wintzingerode, 9 Or 153 (1881) (confessions obtained by promises or by threats); [citations omitted].”
In State v. Mendacino, 288 Or 231, 235-36, 603 P2d 1376 (1979), this court said:
“In Oregon, a confession is initially deemed involuntary. State v. Ely, 237 Or 329, 332, 390 P2d 348 (1964). Before a confession can be received in evidence, the state must show that it was voluntarily given, that is, made without inducement through fear or promises, direct or implied. Cf., ORS 136.425(1). This has been the rule in Oregon for almost a century. See State v. Wintzingerode, 9 Or 153, 160-161 (1881). Cf., Bram v. United States, 168 US 532, 542-543, 18 S Ct 183, 42 L Ed 568 (1897). * * * The Oregon Constitution embodies these principles by guaranteeing that no person shall be compelled in any criminal prosecution to testify against himself. Or Const. Art I, § 12. Cf., US Const., Amend. V.” (Emphasis added.)9
State v. Mendacino, supra, can be interpreted as [695]*695leaning away from the statement about the Oregon Constitution in State v. Neely, supra, and approving the above-quoted language from State v. Andrews, supra. The quoted portions of Andrews and Neely are both dicta. In Mendocino the defendant petitioned this court for review and did not quote or rely upon the Oregon Constitution. Even so, it appears that this court relied in part on Article I, section 12, to reverse the defendant’s conviction and remand for a new trial.
This brings us to State v. Mains, 295 Or 640, 669 P2d 1112 (1983), and State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983), from which it could be inferred that this court has already adopted an Oregon Miranda rule. In fact, the Court of Appeals has so inferred in State v. Kell, 77 Or App 199, 712 P2d 827 (1986), and State v. Rowe, 79 Or App 801, 720 P2d 765 (1986).
In State v. Mains, supra, one of the issues was whether the defendant was entitled to Miranda-type warnings before he was examined by a state psychiatrist. We noted that the details of the Miranda warnings were regarded as a judicial means to effectuate the federal Fifth Amendment’s guarantee against self-incrimination. We went on to elaborate:
“The Oregon Constitution similarly guarantees the right not to be compelled to testify against oneself in a criminal prosecution. Or Const, Art I, § 12. Like the United States Supreme Court, this court is called upon from time to time to specify the procedure by which a guarantee is to be effectuated. Such specifications are not the same as interpretations of the guarantee itself, that is to say, they may not always and in all settings be the only means toward its effectuation but may be adapted or replaced from time to time by decisions of this court or by legislation in the light of experience or changing circumstances. In the absence of legislation, we believe that the following are the relevant information and warnings required in the setting of a psychiatric examination of a defendant conducted on behalf of the state to guarantee the right not to be compelled to testify against oneself in a criminal prosecution under Article I, Section 12, of the Oregon Constitution.” 295 Or at 645.
In State v. Sparklin, supra, the defendant was arrested in Lane County on a charge of forgery. The next morning he was arraigned and provided with an attorney. Later the same evening, without notice to the defendant’s [696]*696attorney and without providing the defendant an opportunity to consult with his attorney, two Portland detectives interrogated the defendant about the unrelated robbery and murder of a man in Portland named Davidson. The Portland detectives gave the defendant the Miranda warnings and he signed a waiver. The defendant confessed to his participation in the Davidson murder. The defendant was tried and convicted. He sought to suppress the confession on the grounds that he had been compelled to testify against himself because his attorney was not present when he made the. confession. The defendant contended that the Miranda warnings given him were not adequate to protect his Article I, section 12, rights under the Oregon Constitution. He urged this court to adopt more detailed warnings than those required by Miranda v. Arizona.
This court, in considering the defendant’s contentions, referred to and quoted a portion of the above quote from State v. Mains, supra. It is no surprise that the opinion in State v. Sparklin, supra, was written on the assumption that Mains had adopted Oregon Miranda warnings.10 We declined to give the alternative warnings proposed by the defendant on practical grounds. We commentéd: “At least as long as the text of the federal Miranda warnings remains the law, we think that the convenience of a single text exceeds any gain from improving that text.” Sparklin, 296 Or at 89. In the case at bar, defendant is not asking that the text of the Miranda warnings be changed. He is requesting that the Miranda warnings be given at a time earlier than required by the federal caselaw.
In State v. Sparklin, supra, we held that the defendant did not invoke his Article I, section 12, right to be silent when he requested an attorney at his arraignment for forgery and that the state could seek a waiver from the defendant without notice to the attorney on a factually unrelated matter.
We think that a fair reading of the above cases commencing with State v. Andrews, supra, through State v. [697]*697Sparklin, supra, demonstrates that Article I, section 12, of the Oregon Constitution includes and guarantees to a defendant the common-law rule that before a confession or admission can be received in evidence the state must prove that it was voluntarily made without inducement from fear or promises. To hold otherwise would mean that if an involuntary confession was received in evidence the defendant would be forced to testify against himself or herself. Article I, section 12, includes both the common-law rule requiring confessions to be voluntary and the common-law privilege granting every person the right to refuse to testify against himself or herself.
Presently included in the common-law rule on voluntary confessions is the sub-rule that an extra-judicial confession is admissible even though the officer to whom it is made did not inform the accused of his right to consult counsel, of his right to remain silent and of the fact that his declarations would be used against him. State v. Henderson, supra. The tail goes with the hide, and the Henderson rule is a part of this court’s interpretation and application of the right to remain silent guaranteed by Article I, section 12. Nowhere in Article I, section 12, is there any mention of any required warnings. It does not say that the defendant shall be informed of the right to an attorney, the right to remain silent, and of the fact that any statement may be used against the defendant.
In 1983, prior to the publication of the decisions in State v. Mains, supra, and State v. Sparklin, supra, the law of this state did not require Oregon Miranda warnings. Mains and Sparklin merely assumed without deciding that the Oregon Constitution required warnings similar to those required in Miranda v. Arizona. Our prior caselaw, spanning more than a century, concerning the requirement of voluntary confessions and admissions was not considered or discussed.
CONCLUSION
If this court had a strong reason for doing so it could overrule the Henderson line of cases and require Miranda-type warnings to help ensure the guarantees of Article I, section 12. That is what the United States Supreme Court did in Miranda v. Arizona. The Fifth Amendment is similar to Article I, section 12. (See footnotes 1 and 2.) This court previously has said that the difference in the language of the two constitutional provisions is not important. State v. Cram, 176 Or 577, [698]*698580,160 P2d 283 (1945).
There is no question that the Oregon Constitution does not require the giving of Miranda-type warnings. Nor does any state statute require the warnings, except at the preliminary hearing procedure before a magistrate. ORS 135.070 et seq. What is at issue is the appropriate procedure “by which a guarantee [here, the right not to be compelled] is to be effectuated.” State v. Mains, supra, 295 Or at 645.
In Miranda v. Arizona the United States Supreme Court elevated the required warnings to constitutional status through the application of the Fourteenth Amendment due process provision to the Fifth Amendment guarantee against compulsion. The warnings then were given constitutional status, the violation of which automatically resulted in suppression of the confession regardless of the underlying question of compulsion. Since the adoption of that court-made guarantee, the United States Supreme Court has seen fit to fashion “exceptions” to the requirement to ease the obviously inelastic proscription of the requirement. See, e.g., New York v. Quarles, 467 US 649, 104 S Ct 2626, 81 L Ed 2d 550 (1984); Oregon v. Elstad, 470 US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985).
It has been said that one reason for the Miranda v. Arizona decision was to negate the necessity for an ad hoc determination of voluntariness. History has shown the folly of this theory. First, a defendant remains free to contest the voluntariness of his confession even in cases where the warnings were given. Secondly, the horde of cases on this point suggests that the ad hoc inquiry of voluntariness has been replaced with the ad hoc (or, at least, the ever-shifting) determination of when the warnings must be given. See, e.g., Berkemer v. McCarty, 468 US 420, 104 S Ct 3138, 82 L Ed 2d 317 (1984). The federal shift has been to the judicially created battlefield of “custody,” with its subjective/objective components and the search for the ever-elusive “free-to-leave” standard. Raising the warning incantation to constitutional status has not seemed to lessen the litigation upon appeal. A WESTLAW search of reported decisions discloses over 3,300 federal court and over 10,000 state appellate court decisions, including 269 appellate court decisions from Oregon that have wrestled with Miranda v. Arizona.
[699]*699From the advantage of 18 years of hindsight, the United States Supreme Court in Berkemer v. McCarty, supra, gave the following reasons for the Miranda warnings:
“* * * The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the ‘ “inherently compelling pressures” ’ generated by the custodial setting itself, ‘ “which work to undermine the individual’s will to resist,” ’ and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. * * *” 468 US at 433 (footnotes omitted; emphasis in original).
Miranda v. Arizona was more specific about one of the reasons for the warnings:
“* * * The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli, 15 N.Y. 2d 235, 205 N.E. 2d 857, 257 N.Y.S. 2d 931 (1965).” 384 US at 446 (footnote omitted).
It is not the purpose of this opinion to argue with Miranda v. Arizona, but it made a mistake including Oregon within the “part of the country” where physical brutality and violence by the police exist. We have cases that show police misconduct. In State v. Mathiason, 275 Or 1, 549 P2d 673 (1976), the police falsely told the defendant that his fingerprints had been found at the scene of a burglary and within five minutes he confessed.11 In State v. Haynes, 288 Or 59, 602 P2d 272 (1979), cert den 446 US 945 (1980), the police removed the defendant from jail so that an attorney the defendant’s wife had retained would be unable to see the defendant. In State v. Wolfe, 295 Or 567, 669 P2d 320 (1983), a police officer, armed with an arrest warrant, deliberately and purposefully tried to elicit incriminating answers from the defendant before arresting the defendant or giving him his Miranda warnings. In State v. Green, 128 Or 49, 273 P 381 [700]*700(1929), a detective was placed in a jail cell with the defendant and tricked the defendant into making a confession.
No one has demonstrated to us how an Oregon Miranda rule would help eliminate police misconduct of the type set forth in the above examples. We do not understand how an Oregon rule identical to the. federal rule would increase the chances to “relieve inherently compelling pressures generated by custodial settings which work to undermine the individual’s will to resist.” If we adopted a different Oregon Miranda rule or placed a different interpretation upon the present federal rule, then we have created confusion. We doubt that the “task of scutinizing . individual cases to try to determine, whether particular confessions were voluntary” would have created a greater case load for the courts than the flood of cases in the last 20 years that have tried to determine the correct application of the federal Miranda warnings.
Oregon is in this situation: We have the federal Miranda warnings. By virtue of the Fifth Amendment and the Fourteenth Amendment we have no choice. We are not arguing about that. Miranda v. Arizona is now 20 years old. A whole generation of police, lawyers, and judges has grown up with the federal Miranda warnings. We will not speculate what Oregon would be like without them. We also have a body of law on confessions. The bottom line in Oregon for over 100 years has been that before a confession or admission can be received in evidence, the state must prove that it was free and voluntary. For the most part during the last 20 years our law on confessions has been in a standby position gathering rust. Most of the questionable confessions and admissions have been eliminated by the federal Miranda rule. However, it is possible to have an involuntary confession or admission even though the Miranda warnings have been properly given. We think.that it is important to keep the Oregon law on confessions and admissions intact.12
[701]*701To adopt an Oregon Miranda rule identical to the federal rule without any commitment to future interpretation would be unwise. We would be in the same position as we are today, except that the ranch would have been sold with no down payment. To adopt an Oregon Miranda rule identical to the federal rule and tie it to future interpretation by the federal caselaw would be foolish. We do not know what may be waiting in the alley. To adopt an Oregon Miranda rule identical to the federal rule and place our own future interpretation on it would only further confuse an already confused area of the law. To adopt an Oregon Miranda rule different from the federal rule is not warranted.
Article I, section 12, of the Oregon Constitution prohibits compulsion, which we interpret to require voluntariness. Past judicial decisions of this court have used the evidentiary device of “deeming” any confession to be involuntary and require the state to bear the burden of overcoming that judicial predisposition. In cases where the state has given Miranda-type warnings and avoided any form of compulsion, the state has met its burden. Where the Miranda-type warnings were not given, the burden fully remains on the state to establish that the confession was voluntary.
We know of no strong and compelling reason to overturn a long-standing precedent of this court in order to adopt a rule which we consider to be unnecessary and confusing under the present circumstances.
The Court of Appeals is affirmed.