We granted leave to determine whether this Court’s holding in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), should be applied retroactively.1 Finding that it should not, we reverse the decision of the Court of Appeals in each case and remand for further proceedings consistent with this opinion.

*46I

PEOPLE v SEXTON

On September 8, 1993, Damian Phillips was shot and killed. Defendant Sexton and two other young men were at the scene of the crime when the police arrived. After initial questioning, they agreed to go to the police station and give statements about the incident.2

Detective Melvin Marchlones questioned the defendant.3 According to testimony given at the suppression hearing, Marchlones told the defendant that he was not under arrest and could leave at any time. In the defendant’s first statement, taken about 2:23 P.M., defendant denied all culpability.

Sexton’s statement was not consistent with those of the other men. Upon being confronted with the inconsistencies, he gave another statement about 4:00 P.M., claiming that the gun slipped through the victim’s fingers, fell to the floor, and discharged. He testified that he asked to telephone his father before making the second statement and was told that he could do so “later.”

Defendant agreed to take a polygraph test. Marchlones reminded him that he was not under arrest and reviewed the Miranda4 warnings. Defendant indicated that he understood and agreed to waive his rights. Before going to Southfield for the polygraph test, *47defendant gave a third statement, claiming that the gun discharged accidentally.

Defendant was taken to the Southfield police station for a polygraph examination. Before the test began at 7:10 P.M., the polygraph examiner reviewed the Miranda rights. Mr. Sexton again stated that he understood the rights and would waive them.

In the meantime, at approximately 4:45 P.M., the defendant’s father arrived at the Hazel Park police station and attempted to see his son. His request was denied. At approximately 5:00 P.M., the senior Mr. Sexton contacted his attorney, Neil Miller. Shortly thereafter, Mr. Miller called the Hazel Park Police Department, identified himself as defendant Sexton’s attorney, and left a message asking that “whoever was holding” the defendant to return his call. Mr. Miller first arrived at the police station at approximately 7:00 P.M., where he informed the desk officer that he represented the defendant, that he wanted to see his client, and that he wanted all questioning stopped. Mr. Miller was told that the defendant was not at the police station, but was not told where he was. The desk officer refused to contact Marchlones. Miller left the police station and wrote a statement reiterating that he was defendant Sexton’s lawyer and that he wanted all questioning stopped. He returned to the police station at 10:20 P.M. and delivered the statement to the desk officer, who paged Marchlones and told him that there was a lawyer at the station who wanted to speak with Corey Sexton.5

*48After the polygraph was completed, the examiner advised Sexton that in his opinion defendant’s answers had not been truthful. Defendant’s response was monitored and he admitted that he intentionally shot Phillips. Sexton was then placed under arrest and again advised of his constitutional rights. Defendant stated that he understood the rights and did not want to talk to a lawyer before further questioning. Defendant gave a recorded statement in which he again admitted that he intentionally shot his cousin. This final statement was given at 11:35 P.M.

The defendant was charged with first-degree murder, MCL 750.316(l)(a); MSA 28.548(l)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). The defense filed a motion to suppress the defendant’s inculpatory statements, but the trial court found that the statements were freely, knowingly, and voluntarily made, and denied the motion.6

Defendant pleaded guilty to second-degree murder, MCL 750.317; MSA 28.549, conditioned on a right to challenge the admissibility of the confessions on appeal. Sexton was sentenced to twenty to forty years for the offense, plus two years for the felony-firearm violation.

While defendant’s appeal was pending, this Court decided People v Bender, supra. In an unpublished opinion per curiam, issued December 20, 1996 (Docket No. 177061), the Court of Appeals reversed *49the decision of the trial court, concluding that suppression was mandated regarding all statements made after 5:30 P.M.7 8We granted the prosecutor’s application for leave to appeal.

PEOPLE v DAVIS

Defendant Clifton Davis was charged with first-degree murder, MCL 750.316(l)(a); MSA 28.548(l)(a), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), in connection with the shooting death of Allen Murriel on March 10, 1993.®

When the police arrived, the defendant and his brother were arrested. Defendant’s mother retained Elliot Margolis to represent her sons. Mr. Margolis and Mrs. Davis agreed to meet at police headquarters at 8:10 P.M.

According to testimony given at the suppression hearing, the defendant signed a waiver of his Miranda rights and agreed to be interviewed at 7:45 P.M. Sergeant Deborah Monti began questioning him at police headquarters.

Mrs. Davis and Mr. Margolis met at the front door of police headquarters at 8:10 P.M. Mrs. Davis paid Margolis the agreed retainer fee, and he immediately *50went upstairs to locate the defendant and his brother. Margolis told the desk officer that he had been retained to represent the Davis brothers. The officer told Margolis that he was not certain of the location of Sergeant Monti or the defendant.

According to the testimony of Sergeant Monti, she began taking defendant’s statement at 8:20 P.M. and finished at 9:20 P.M. Mr. Margolis’ version of the facts differs slightly. He testified that he saw Monti move Edward Davis from one room to another at 8:45 P.M. According to Margolis, Monti told Margolis at that time that she had already taken a confession from the defendant.

At trial, the defendant moved to suppress the confession, contending that suppression was required because the police failed to tell defendant that his counsel wanted to see him. The trial court granted the motion to suppress pursuant to People v Wright, 441 Mich 140; 490 NW2d 351 (1992). The trial court acknowledged the possibility that the defendant had given at least part of his statement before the attorney arrived, but suppressed the entire statement.

The Court of Appeals granted the prosecutor’s interlocutory application for leave to appeal. While that appeal was pending, this Court decided Bender. The Court of Appeals issued a peremptory affirmance of the trial court order. We granted the plaintiff’s application for leave to appeal.

PEOPLE v YOUNG

James Curenton was with a group of friends on the evening of September 7, 1991. Dondrea Smith and Joseph Broom, two of Curenton’s friends, testified that a man wearing a ski mask and carrying a gun *51came out of an alley. Mr. Smith testified that he thought nothing of this pedestrian until the gunman started shooting.9 At that point, the witness and the rest of the friends ran. The gunman chased Curenton and shot at him. After Curenton was on the ground, the perpetrator took a gold chain from the victim’s neck and rummaged through his pockets.

On September 9, 1991, defendant was arrested for the murder of James Curenton. Defendant was placed in a holding cell for the night.

At approximately 9:20 A.M. the next morning, Mr. Young was questioned about the shooting by Sergeant Lee Caudill of the Detroit Police homicide unit. According to testimony given at the evidentiary hearing, defendant was apprised of his Miranda rights and voluntarily agreed to waive them before questioning. At the initial interview, defendant denied all involvement in the killing.

At 2:00 P.M., defendant was taken from the police station to the police crime laboratory for a polygraph examination. The defendant was again advised of his Miranda rights, and agreed to take the polygraph examination. During the examination, Caudill received a telephone call indicating that an attorney was at the police station requesting to see Bryce *52Young.10 The defendant was not notified of this and the examination continued. At 6:40 P.M., defendant confessed.

The defendant’s motion to suppress the statement was denied. After a two-day bench trial, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to twelve to thirty years for the murder conviction and two years for the felony-firearm violation.

The Court of Appeals affirmed defendant’s conviction. 212 Mich App 630; 538 NW2d 456 (1995). We remanded the case for reconsideration in light of Bender, and for a determination whether that decision should be applied retroactively to this case. 453 Mich 976 (1996).

On remand, the Court of Appeals held that Bender was to be given complete retroactive effect because it could not be said that Bender overruled clear and uncontradicted case law or that it was unexpected or indefensible in light of People v Wright, supra. 222 Mich App 498; 565 NW2d 5 (1997).

n

The issue in this case is whether our decision in People v Bender, supra, should have retroactive application. As a question of law, the standard of review is de novo. People v Carpentier, 446 Mich 19; 521 NW2d 195 (1994). Resolution of the matter in turn rests on the decisional basis of the holding.

*53In Bender, we held that the police must inform a suspect when retained counsel is available for consultation, failing which any statement made by the defendant after the attorney’s arrival would be suppressed. However, the ultimate holding of the Court was not that the rule was required by either Const 1963, art 1, § 1711 or § 20.12 In an opinion by Chief Justice Brickley, joined by Justices Levin, Cavanagh, and Mat,t,ett, the majority expressly refrained from justifying Bender by interpreting constitutional provisions. Rather, the majority felt that it

would be more appropriate to approach the law enforcement practices that are at the core of this case in the same manner as the United States Supreme Court approached the *54constitutional interpretation task in Miranda . . . ; namely, by announcing a prophylactic rule. [Bender at 620-621.]1131

This new per se rule of criminal procedure was implemented to insure that “our system of criminal justice remains accusatorial and not inquisitorial in nature.” Id. at 623.

m

In Griffith v Kentucky,14 the United States Supreme Court held that a new rule for the conduct of criminal prosecutions “applie[s] retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” However, Griffith is not applicable to the cases at bar because it applies only to rules of criminal procedure that are grounded on the United States Constitution.

In Griffith, the issue was whether the Court’s decision in Batson v Kentucky15 should be applied retroactively. In Batson, the Court held that a state criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment on the basis of a prosecutor’s use of peremptory challenges to strike members of the defendant’s race from the jury. Once the defendant made the prima facie showing, the burden shifted to the state to establish a racially neutral explanation for the *55exclusions. Thus, Griffith dealt with the retroactive application on direct review16 of a rule of criminal procedure that was constitutionally mandated.17

The Court explicitly accepted Justice Harlan’s view of “distinguishing between cases that have become final and those that have not, and for applying new rules retroactively to cases in the latter category . . . .”18 The Court stated that “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.”19

This Court’s holding in Bender is not a rule of criminal procedure that is mandated by the United States Constitution. To the contrary, the United States Supreme Court’s holding in Moran v Burbine, 475 US 412; 106 S Ct 1135; 89 L Ed 2d 410 (1986), specifically held that failure of the police to inform a defendant of a lawyer’s efforts to contact him does not violate either the Fifth Amendment right to silence or the Sixth Amendment right to counsel.

The conclusion that Griffith mandates retroactive application only with respect to rules that emanate *56from the federal constitution is in accord with the approach adopted in both federal and state courts.20

In Commonwealth v Waters,21 the issue before the Massachusetts Supreme Court was whether a new rule announced in Commonwealth v Allen, 22 should be applied retroactively. In Allen, the court announced a rule requiring a judicial determination of voluntariness whenever the issue was raised, even if the statement in question was made to a private citizen. Declining to apply Allen to a case pending on direct review at the time the opinion was issued, the court in Waters held that “Griffith does not require this court to give retroactive application to rules that are not based on the Federal Constitution.”23

In People v Erickson,24 one of the issues before the Illinois Supreme Court was whether the decision in *57Daley v Hett,25 should have retroactive application. The defendant’s position was that Hett prohibited death penalty questioning of prospective jurors where the sentencing jury is waived before trial. The court held that the issue was left open in Hett. Declining to address the unanswered issue, the court found that even if Hett stood for the defendant’s proposition, it would not be applied retroactively to the defendant’s case. The court stated:

Our reading of Griffith leads us to conclude that retroactivity is triggered when two factors are present: (1) the case to which the new rule is to be applied was not final or was pending on direct review when the rule was declared and (2) the rule to be applied retroactively is of constitutional dimension.[26]

The court reasoned that the right to a sentencing jury in a capital case was a statutory rather than a constitutional right, and stated that because “Griffith addresses a rule which pertains to a constitutional right and the defendant herein seeks retroactive application of a rule which pertains to a statutory right, we do not deem Griffith controlling.”27 After finding Griffith inapplicable, the court applied a three-part test of retroactivity first adopted by the Illinois Supreme Court in People v Laws.28 The three-part test applied in Erickson29 is substantively indistinguish*58able from the test of retroactivity we applied in People v Hampton.30

Because Griffith is not controlling, this Court is free to prescribe the parameters of retroactivity. The United States Supreme Court held in Great Northern R Co v Sunburst Oil & Refining Co31 that “the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.”

While we acknowledge the reasoning and rationale of Griffith32 we decline to apply it to the cases before us today.33 Instead, we find the analysis in Stovall v Denno,34 to be more persuasive.35

*59In Stovall, the United States Supreme Court addressed the retroactivity of United States v Wade.36 Wade required the exclusion of an in-court identification that was based on a prior lineup conducted without counsel unless the in-court identification had an independent origin or was harmless error. The Stovall Court cited the “unusual force of the countervailing considerations” in holding that the Wade rule was to have total prospective application. The Court made no distinction between final, convictions, convictions on direct review, and convictions at various stages of trial, holding that the “factors of reliance and burden on administration of justice” were paramount.37 In addressing the equity argument, the Court observed that “[i]nequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making.”38

In determining the scope of prospective application, Professors LaFave and Israel submit that reliance is a critical factor.

If non-retroactive application is to be geared to reliance, the critical point for application of the new ruling must be the operative event regulated by that ruling, rather than the *60finality of the conviction. Where the new ruling was directed at a police practice, it would be applied only to police action occurring after the date of the new ruling.!391

In holding that Bender is to be given prospective application only, we agree with the Stovall Court that no distinction should be made between final convictions, convictions on direct review, and convictions at various stages of trial.40 We simply decline to extend Bender’s “court-made exclusionary rule to cases in which its deterrent purpose would not be served.”41

rv

In Hampton, supra, we recognized a three-part test of retroactivity that assesses (1) the purpose of the new rules;42 (2) the general reliance on the old rule, and (3) the effect of retroactive application of the *61new rule on the administration of justice.43 We hold that the application of these three factors to the rule in Bender precludes retroactive application.

A

As noted above, the purpose of the Bender rule is to provide “prophylactic” protection against potential *62Miranda violations by mandating suppression as a deterrence to police misconduct.44 The Bender majority held that “ [i]f it is deemed to be important that the accused be informed that he is entitled to counsel, it is certainly important that he be informed that he has counsel.”45 Miranda warnings are not constitutionally mandated. Rather, the United States Supreme Court in Miranda created a prophylactic set of warnings to ensure protection of Fifth Amendment rights.46 The Supreme Court has further held that Miranda is to have prospective application only.47

Furthermore, the Bender rule is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process. In People v Young,48 the Court considered whether the Court of Appeals had correctly applied People v Fountain49 which required that a prosecutor who knows of a defendant’s prior felony record proceed against the defendant as an habitual offender in the adjudication of the current felony offense, failure of which reverses the defendant’s conviction as an habitual offender. The Court observed that the rule was based on “this Court’s supervisory powers over the *63practices and procedures used in our courts”50 and concluded:

When a decision of this Court involves a rule which concerns the ascertainment of guilt or innocence, retroactive application may be appropriate. People v Hampton, supra. Conversely, a new rule of procedure adopted by this Court which does not affect the integrity of the fact-finding process should be given prospective effect.]51]

Because the doctrinal foundation for the Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process, it is amenable to prospective application. Because the police acted in full compliance with the law as it existed at the time, the purpose of preventing police misconduct will in no way be served by retroactive application. The rule, by its nature, can only have a prospective effect on police conduct.

B

Because the amount of past reliance will often have a profound effect on the administration of justice, the second and third factors are often dealt with together.52

When a decision overrules settled law, more reliance is likely to have been placed in the old rule than in cases in which the law was unsettled or unknown.53 Judicial decisions are generally given *64complete retroactive effect unless the decisions are unexpected or indefensible.54

The defendants in this case argue that Bender was foreshadowed by People v Wright, supra. Because of the holding in Wright, the defendants argue, the decision in Bender cannot be deemed to be unexpected. In Wright, four members of the Court held that the defendant’s confession could not be admitted into evidence. Justice Mallett, joined by Justice Levin, held that the Michigan Constitution, art 1, § 17, required the police to inform the defendant of in-person efforts by his retained attorney to contact him.55 Chief Justice Cavanagh agreed with Justice Mallett’s inteipretation of the Michigan Constitution, but wrote separately to further cite defendant’s right to assistance of counsel under Const 1963, art 1, § 20.56 Chief Justice Cavanagh also held that the rale should not be limited to apply only to in-person efforts to contact.57 Justice Brickley concurred that the confession should be suppressed. However, Justice Brickley wrote separately to base his conclusion on a rationale distinct from that of Justices Mallett, Levin, and Cavanagh.58 Justice Brickley did not reference any provision of our constitution, but relied on a totality-of-the-circumstances analysis to find that the coercive nature of the defendant’s interrogation precluded a voluntary waiver of the right to remain silent.59

*65Given that the majority in Wright did not agree that failure to allow retained counsel access to the client-mandated exclusion of the statements as a matter per se it cannot be said that Wright foreshadowed Bender. In announcing a rule of exclusion per se, Bender is a complete break with past precedent. As this Court held in People v Anderson:60

The clear rale in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment but the case is not authority beyond the immediate parties.

Therefore, even after Wright, there was no established rule that mandated the exclusion of evidence when the police failed to apprise a defendant of retained counsel’s attempts at contact. Bender could not have been foreshadowed by Wright where the case established no precedential value under the principle of stare decisis.

While the police could not rely on Wright, they could rely on the United States Supreme Court’s decision in Moran v Burbine, supra. As noted in Moran, the Court held that a defendant’s knowledge of his attorney’s presence is irrelevant to the voluntariness of a waiver. Under Moran, the proper focus is on the voluntariness of the defendant’s decision to speak with the full awareness and comprehension of all the information Miranda requires the police to convey.

*66Whether a statement is deemed voluntary is to be determined using a totality-of-the-circumstances analysis. As this Court said in People v Cipriano:61

In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse.

In view of the earlier reliance on Moran and Cipriano and the lack of foreshadowing by Wright, before Bender the police could legitimately rely on the fact that an inculpatory statement would not be automatically excluded when they failed to inform a suspect of the presence of counsel hired by a third party. This legitimate reliance was reinforced through subsequent decisions of the Court of Appeals, which held that Wright did not establish a binding principle regarding rationale.62 Furthermore, subsequent Court of Appeals decisions expressly refused to impose a requirement per se that the police inform a suspect of *67counsel’s presence. These opinions correctly employed a traditional totaiity-of-the-circumstances analysis in determining whether the defendant’s statements were voluntary.63

In Bender, the Court announced for the first time that police must inform a suspect of an attorney’s attempted contact, failing which the suspect’s Miranda waiver is invalid per se and the resulting statement suppressed. Because Bender is a new rule of law, it is uniquely susceptible to prospective application.

As to the third factor, we find that retroactive application of Bender would be extremely disruptive to the administration of justice. Convictions would be called into question and evidence excluded that was obtained in full compliance with the law extant at the time the statement was given. The ultimate result might undermine the validity of a large number of convictions and burden the criminal justice system with numerous retrials. Accordingly, we hold that the decision in Bender is to be given prospective application only.

v

Defendants Sexton and Young also claim that their inculpatory statements should have been suppressed because they were not voluntary. As noted above, whether a statement is deemed voluntary is to be determined using a totality-of-the-circumstances anal*68ysis.64 While the voluntariness of a confession is a question for the trial court, an appellate court must examine the entire record and make an independent determination of voluntariness.65 The decision of the trial court will not be disturbed unless clearly erroneous.66

As to defendant Young, review of the record shows that the trial court did not err in finding Bryce Young’s statement voluntary under the circumstances. Defendant maintains that his statement was involuntary because he was not informed that counsel was attempting to contact him and because he was deprived of food and sleep for twenty-one hours. As noted above, defendant’s not being informed of the presence of counsel is merely a factor in the determination of voluntariness.

Defendant was arrested at 9:00 P.M. on September 9. He was given a soft drink and a snack cake at approximately noon on September 10, which was the first and only occasion defendant complained about being hungry. According to defendant’s testimony at the evidentiary hearing, he specifically requested a soft drink. He further testified that he spoke with his lawyer for approximately an hour and then ate a hot meal. Any delay in eating due to speaking with counsel is certainly not attributable to the police.

Furthermore, defendant’s testimony at the evidentiary hearing reveals that his lack of sleep was principally attributable to his “being scared” rather than any coercive tactics on the part of the police.

*69Under the totality of the circumstances, we hold that defendant Young’s statement was voluntary.

As to defendant Sexton, the matter was not addressed by the appellate court. Therefore, we remand the issue to the Court of Appeals for further proceedings.

VI

In all three cases before us, the inculpatory statements of the defendants were ordered suppressed pursuant to Bender. Because we hold that the decision in Bender is to apply only to interrogations that occurred after July 23, 1996, the inculpatory statements of the defendants should not be suppressed. Accordingly, we reverse the decisions of the Court of Appeals and remand the cases for proceedings consistent with this opinion.

i

I respectfully dissent in these cases for two primary reasons. First, I believe that the time has come for us to reevaluate our retroactivity jurisprudence and align it with the current federal model. Second, I believe that the majority’s retroactivity analysis is in error for two reasons: retroactivity may not even be an issue in this case because the rule set forth in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), was clearly foreshadowed by People v Wright, 441 Mich 140; 490 NW2d 351 (1992), and even if I agreed with the majority regarding the applicable case law, I disa*70gree with its analysis and conclusion regarding whether the Bender rule should be applied retroactively.

n

The majority articulates two grounds for its apparent disinclination to apply current United States Supreme Court precedent regarding retroactivity. First, it asserts that the rule set forth in Bender does not have constitutional implications, and, second, federal retroactivity precedent only applies to rules of criminal procedure emanating from the federal constitution.

The majority implies throughout its analysis that the rule set forth in Bender has no basis in our constitution. While the Bender rule is prophylactic in nature like Miranda,1 that fact does not detract from its constitutional underpinnings. Its very purpose is to protect a suspect’s right to counsel and the privilege against self-incrimination. To deny the constitutional import of this rule is to ignore the plain language set forth in Bender.

The right to counsel and the right to be free of compulsory self-incrimination are part of the bedrock of constitutional civil liberties that have been zealously protected and in some cases expanded over the years. Given the focus and protection that these particular constitutional provisions have received, it is difficult to accept and constitutionally justify a rule of law that accepts that law enforcement investigators, as part of a custodial interrogation, can conceal from suspects that counsel has been made available to them and is at their disposal. If it is deemed to be important that the accused be informed that he is enti*71tied to counsel, it is certainly important that he be informed that he has counsel. [Id. at 621 (emphasis added).]

In my view, the rule we adopt today requiring police to inform suspects that counsel has been retained for them insures that our system of criminal justice remains accusatorial and not inquisitorial in nature. Perhaps more importantly, it demonstrates that eocperience has taught us that the good will of state agents is often insufficient to guarantee a suspect’s constitutional rights. [Id. at 623 (emphasis added).]

The constitutional undeipinnings of Bender are obvious.

The majority asserts that it “assume[s] that the Bender majority employed the term ‘prophylactic’ as it is used in Miranda, that is, ‘procedural safeguards’ that are not themselves constitutionally based.” Ante, p 62, n 44. Contrary to the majority’s assumption, I assume that the Bender majority meant precisely what it stated:

As Justice Souter explained in Withrow v Williams, 507 US 680, 691; 113 S Ct 1745; 123 L Ed 2d 407 (1993): “ ‘Prophylactic’ though it may be, in protecting a defendant’s Fifth Amendment privilege against self-incrimination Miranda safeguards ‘a fundamental trial right.’ ” [Id. at 621.]

In addition, the majority contends that “the Bender-rule is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process.” Ante, p 62. Again, the plain language set forth by the Bender majority indicates otherwise:

“Nor does the Fifth Amendment ‘trial right’ protected by Miranda serve some value necessarily divorced from the *72correct ascertainment of guilt. ‘ “[A] system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses” than a system relying on independent investigation.’ Michigan v Tucker [417 US] [433] 448, n 23 [94 S Ct 2357; 41 L Ed 2d 182 (1974)] (quoting Escobedo v Illinois, 378 US 478, 488-489 [84 S Ct 1758; 12 L Ed 2d 977] [1964]). [Some citations omitted.]” [Id. at 622.]

By its adoption of the Bender rule, this Court clearly sought to protect a “fundamental trial right” rooted in the privilege against self-incrimination and the right to counsel. Accordingly, the majority’s conclusion that “[b]ecause the doctrinal foundation for the Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process, it is amenable to prospective application” is unsupported by the foundation laid for the rule set forth in Bender. Ante, p 63. By deeming Bender prospective only, the majority fails to heed its own counsel that “the good will of state agents is often insufficient to guarantee a suspect’s constitutional rights.” Bender at 623. Thus, I find the majority’s conclusion that Bender does not implicate a defendant’s constitutional rights wrong and without any viable legal support.

As an additional matter, I am not persuaded that merely because the underpinnings of Bender are grounded in the Michigan Constitution and do not emanate from the federal constitution that we should summarily dismiss a body of law that has undergone decades of cautious and in-depth examination, culminating in the rule set forth in Griffith v Kentucky, 479 *73US 314; 107 S Ct 708; 93 L Ed 2d 649 (1987).2 The Supreme Court has carefully analyzed the public policy involved in retroactive application of new rules of criminal procedure, producing a rule that protects both the constitutional rights of defendants and the state’s interest in the finality of judgments. This rule is set forth in Griffith, which holds that newly declared constitutional rules must be applied retroactively to all cases pending on direct review with no exception for cases in which the new rule is a “ ‘clear break’ with the past.” Id. at 328. The failure to do so “violates basic norms of constitutional adjudication.” Id. at 322. Moreover, the “integrity of judicial review requires that we apply that rule to all similar cases pending on direct review” and the failure to do so “violates the principle of treating similarly situated defendants the same.” Id. at 323. The failure to give the appropriate measure of consideration to these important concerns and the resulting decision not to accord the Bender rule retroactive effect also violates the “basic norms of constitutional adjudication” and the “integrity of judicial review.”

The majority also fails to give appropriate consideration to the analysis set forth in Shea v Louisiana, 470 US 51; 105 S Ct 1065; 84 L Ed 2d 38 (1985), in which the Supreme Court held that the rule of Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L *74Ed 2d 378 (1981), would be applied retroactively to cases not yet final, that is, those cases pending on direct review.3 In Edwards, the Supreme Court held that once an accused has asserted the right to counsel, “the interrogation must cease until an attorney is present.” Id. at 485. The protection set forth in Edwards is clearly rooted in Miranda-.

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Id. at 484]

Likewise, Bender is also rooted in Miranda-like protections and should be afforded retroactive effect just as was Edwards. Even if the majority was correct in its assessment that the Bender rule is not rooted in the protection of constitutional rights, the same rule of retroactivity applies where a “prophylactic” rule is at issue.

The analyses set forth in Shea and Griffith are based on United States v Johnson, 457 US 537; 102 S Ct 2579; 73 L Ed 2d 202 (1982), which examined the difficulties and inconsistencies in the long evolution of retroactivity jurisprudence. The majority relies heavily on our decision in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), which is based on Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and also on the analysis set forth in Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d *751199 (1967). However, the Supreme Court noted in Johnson:

Because the balance of the three Stovall factors inevitably has shifted from case to case, it is hardly surprising that, for some, “the subsequent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” [Id. at 544.]

These factors have also been “attacked as being both difficult to apply and easy to manipulate to reach a desired result.” Moody, Retroactive application of law-changing decisions in Michigan, 28 Wayne L R 439, 455 (1982). The reliance factor “merits little protection when, as is the case where the retroactivity of constitutional procedural rights is at issue, a criminal defendant’s life or liberty is at stake.” Id. Finally, the administration of justice factor has also been labeled as “easily subject to misuse and distortion so as to justify a court’s predetermined non-retroactivity result.” Id. The factors utilized by the majority have been called into question again and again. I believe that the time has come for us to reexamine retroactivity.

After examining the numerous opinions authored by Justice Harlan on the issue of retroactivity, the Supreme Court agreed that “ ‘[r]etroactivity’ must be rethought.” Johnson at 548. The Court concluded, in accordance with Justice Harlan’s view, that a decision from it construing the Fourth Amendment is to be applied to all convictions not yet final at the time the decision was rendered. Id. at 562.

The Court looked approvingly on two statements of Justice Harlan in particular:

*76“We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently.” Desist v United States, 394 US [244, 258; 89 S Ct 1030; 22 L Ed 2d 248 (1969)] (dissenting opinion). Applying Payton [v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980)] to convictions that were not yet final when Pay-ton issued would accomplish the first step toward “turning our backs on the ad hoc approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle.” Jenkins v Delaware, 395 US [213, 224; 89 S Ct 1677; 23 L Ed 2d 253 (1969)] (Harlan, J., dissenting). [Id. at 561-562.]

I agree with Justice Harlan’s assessments regarding retroactivity. Not only does fairness require that similarly situated defendants be treated the same, but the majority offers no “principled reason” for doing otherwise. We, too, should take this opportunity to “turn our backs on the ad hoc” and inconsistent retroactivity jurisprudence and to mind Justice Moody’s observation:

Selective application of the benefit, and perhaps also the burden, of the change to one party and not to others similarly situated is difficult to justify in view of the fact that it is often pure happenstance that leads a court to select one case rather than another as a vehicle for an overruling or first-impression decision. [Moody, supra at 446.]

The test employed by the majority “fails to consider the ‘hardship and inequity suffered by those who are denied the benefit of the new rule and compelled to bear the burden of what is now admittedly recognized as an unjust rule.’ ” Id. at 456.

*77More important, this Court has already examined and adopted the more recent retroactivity analysis set forth by the Supreme Court. Contrary to the majority’s analysis, we have previously utilized federal retroactivity analysis post-Linkletter, and our own jurisprudence did not stagnate with the Hampton decision. Not only is there a failure to undertake the task of determining whether we should apply current federal retroactivity precedent in this case, there is a disregard of other decisions of this Court doing so.4

The fact that we did not cease utilizing federal retroactivity precedent after the adoption of Linkletter in Hampton is evidenced by several decisions from this Court. In People v Gay, 407 Mich 681, 705; 289 NW2d 651 (1980), we noted our adoption of Linkletter; however, we proceeded to state that “the United States Supreme Court has since determined that the question whether a double jeopardy holding should be given retroactive effect is ‘not readily susceptible of analysis under the Linkletter line of cases.’ ” Citing Robinson v Neil, 409 US 505, 508; 93 S Ct 876; 35 L Ed 2d 29 (1973).

The issue presented in Gay was the retroactive application of People v Cooper, 398 Mich 450, 460-461; 247 NW2d 866 (1976), in which we held that limitations existed under the Michigan Constitution on the state’s ability to prosecute a defendant in a state court following a conviction in federal court for crimes arising out of the same acts. Gay still used the *78Linkletter factors in its analysis in accordance with Supreme Court dictates. However, the Gay Court noted that “many of the decisions of the United States Supreme Court in recent years demonstrate a growing limitation upon the concept of dual prosecution originally approved [by it].” Id. at 707. Thus, previous reliance on the dual sovereignty concept was recognized as “dubious.” Id. at 708. We concluded that “retrospective application of the Cooper rule is required to assure the fair distribution of a fundamental right.” Id. at 709.

As noted above, the majority characterized the Bender rule as safeguarding “a fundamental trial right” in spite of its prophylactic nature. Bender at 621. As in Gay, Bender involves a fundamental right mandating retroactive application and the fact that Bender, like Gay, is grounded in the protection of state constitutional rights does not control whether we should apply the current federal retroactivity model.

Next, in People v Woods, 416 Mich 581; 331 NW2d 707 (1982), we decided whether our decision in People v Wright, 408 Mich 1; 289 NW2d 1 (1980), based on Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979), was retroactive. Wright and Sandstrom held that due process is violated when the jury is instructed that the law presumes that a person intends the ordinary consequences of his voluntary acts where a reasonable juror would inteipret the presumption as conclusive or as shifting the burden of persuasion to the defendant on the issue of intent. Woods at 612. In deciding whether to apply these cases retroactively, we utilized the analysis set forth in Johnson, supra, “the Supreme Court’s most recent *79opinion on retroactivity,” in spite of that decision’s express limitation of its analysis to Fourth Amendment violations. Woods at 616.5

Still utilizing the Linkletter factors, we first concluded that, given the reliance by lower courts on unreversed cases approving these jury instructions, “the effect full retroactivity would have on Michigan’s system of justice is unacceptable. Since this Court long approved of such instructions, the number of cases where this instruction was used is surely enormous. Taking this into consideration with the purpose of the Sandstrom rule, we feel full retroactivity is unwarranted.” Woods at 621. However, we went on to hold:

[R]etroactive application to those defendants whose cases were pending on direct appeal when Sandstrom was decided is required if the issue was properly raised and preserved. United States v Johnson, supra, which allowed retroactive application of Payton, supra, to cases pending on direct appeal, was specifically limited to decisions involving the Fourth Amendment. However, it clearly manifested a preference for limited retroactivity since it is consonant with the Court’s original understanding of retroactivity in Linkletter, does justice to “each litigant on the merits of his own case,” and furthers the goal of giving similar treatment to defendants similarly situated. We find these reasons equally applicable to this case. [Id. at 621-622 (citations omitted; emphasis added).]

*80We essentially applied the same rule set forth by the Supreme Court in Johnson, Shea, and Griffith, that is, a new rule applied retroactively to all cases pending on direct appeal at the time of decision where the issue was properly raised.6 Unlike the present situation, the decision in Woods was applied retroactively, despite the fact that this Court had “long approved” such instructions. As will be discussed in more detail below, the police conduct denounced in Bender has not been “long approved” by this Court, at the very least not since our decision in Wright.

m

A

I find that the majority erred in its retroactivity analysis for two reasons. First, although it engaged in a “foreshadowing” analysis in the context of the second and third factors of Hampton, the majority misapprehends one of the primary purposes of this type of analysis. The majority acknowledges that judicial decisions are to be given complete retroactive effect. People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996). However, it fails to note that “ ‘[c]omplete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.’ ” Id., quoting Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). Moreover, only if the decision is “unexpected” or “indefensible” in light of the law in place at the time *81of the conduct in question does retroactive application of the new decision even become problematic. Id.

Thus, before any question of the retroactive application of a decision arises, “it must be clear that the decision announces a new principle of law.” People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982). A rule of law is “new” for purposes of retroactivity analysis “either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision.” Id.7 Albeit for different reasons, four members of this Court, in Wright, found the police officers’ failure to inform a suspect of an attorney’s presence to be impermissible police conduct. I cannot conclude that after Wright, the police did not have reason to be aware that withholding information regarding the presence of an attorney from a suspect was impermissible. Therefore, Bender is not a “new rule” within the meaning of Phillips.

Simply because Wright did not create an exclusionary rule per se does not lead to the conclusion that it did not foreshadow Bender. The majority evidently equates foreshadowing with the principle of stare *82decisis. However, had Wright created the exclusionary rule per se that the majority seems to think was necessary,8 not only would retroactivity of the Bender rule not be an issue, it need not have been decided at all (because Wright already would have done so). Therefore, equating foreshadowing with stare decisis renders the foreshadowing analysis pointless.

Presumably, the majority would conclude that the police are not sufficiently aware of the impermissibility of engaging in any relevant factor utilized in the totality-of-the-circumstances test for vohmtariness simply because the violation of any one factor might not result in an exclusion of evidence per se. However, official awareness of an exclusionary rule per se is not the same as official awareness that certain conduct is simply not allowed. Police misconduct is police misconduct, regardless of the consequences. The majority overlooks such misconduct simply because the police were unaware that the fruit of their misconduct would be absolutely inadmissible at trial. I submit that conduct so clearly contrary to Wright should not be rewarded.

Accordingly, I cannot agree with the majority’s conclusion that Bender was not clearly foreshadowed by Wright, and, thus, Bender cannot be properly characterized as a “new rule.” The majority’s foreshadowing analysis is quite similar to the government’s argument soundly rejected in Johnson:

*83[T]he only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officer violated pre-existing guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, pre-existing Fourth Amendment guidelines raise no real questions of retroactivity at all. Literally read, the Government’s theory would automatically eliminate all Fourth Amendment rulings from consideration for retroactive application. [Id. at 560 (emphasis added).]

This is precisely what the majority seeks to do here: Unless settled principles are applied, the decision should not be retroactive. In doing so, the majority distorts retroactivity jurisprudence and effectively renders engaging m retroactivity analysis in the future an exercise in futility by disallowing retroactive application of any rule that could possibly be characterized as “unsettled” in any infinitesimal way.

B

The majority’s second error lies in its analysis of the Hampton/Linkletter factors.9 The three factors applied by the majority are set out in Hampton and *84analyze: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of retroactive application of the new rule on the administration of justice. Contrary to the majority’s assertions10 regarding the purpose of the Bender rule, the Bender majority found the Bender rule necessary to protect “a fundamental trial right” that serves a value not “necessarily divorced from the correct ascertainment of guilt.” Bender at 620-621.* 11 Thus, the Bender rule is fully amenable to retroactive application, even under the law as so narrowly viewed by the majority.12

The majority’s assertions that the “police acted in full compliance with the law as it existed at the time” and that “the purpose of preventing police misconduct will in no way be served by retroactive applica*85tion” axe inconsistent with the plain import of Wright and with its admission that the Court of Appeals, subsequent to Wright, “correctly employed a traditional totality-of-the-circumstances analysis in determining whether the defendant’s statements were voluntary.” Ante, p 67.

First, if Wright had established such a rule, Bender not only would have been an unnecessary decision, it could not possibly implicate retroactivity. Second, if failure to inform a suspect that an attorney was waiting to speak with him is an appropriate factor to be utilized in the test for vohmtariness, then how could the police possibly be unaware that such behavior was inappropriate? Third, the violation of any factor utilized in the totahty-of-the-circumstances test simply cannot be characterized as “full compliance with the law.”13 Fourth, the prevention of police misconduct certainly will be furthered by retroactive application of Bender because no legitimate reason existed for the police to ignore Wright and any reliance placed elsewhere is simply unjustified.

*86In applying the third Hampton factor, the majority asserts that if Bender was applied retroactively, “[c]onvictions would be called into question and evidence excluded that was obtained in full compliance with the law extant at the time the statement was given.” Ante, p 67. There is no burden on the administration of justice where we require the police to follow the rules set forth by this Court that are designed to protect fundamental constitutional rights, i.e., Wright. Again, the majority’s decision permits the police to ignore the plain significance of our decision in Wright simply because Wright did not adopt an exclusionary rule per se. It is this ultimate conclusion that I find illogical, legally unjustifiable, and constitutionally offensive.

IV

In sum, I believe we should take the significant step of adopting the consistent, simple, and clear approach to retroactivity utilized by the federal courts. In addition, the majority’s retroactivity analysis is in error for two reasons: Bender is not a “new rule” of law because it was foreshadowed by Wright, and application of the Hampton/Linkletter factors mandates retroactive application of Bender. Accordingly, I conclude that retroactive application of Bender is appropriate, no matter the test applied.