Montejo Part I
Every criminal defense lawyer needs to read this opinion and consider what it means to our clients and to the ever-diminishing protections we are given by the Constitution. In a nutshell, Montejo overruled Michigan v. Jackson, which said that police could not initiate an interrogation of a defendant once the Sixth Amendment right to counsel had attached. Per Montejo, police can now seek a waiver of rights and interrogate a defendant even after they are represented by counsel. Some background, first:
The Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
MIranda v. Arizona:
The Miranda decision was based on the Fifth Amendment right against self-incrimination, and held that before questioning a suspect, the police must tell that person what their rights are, including that they have a right to an attorney:
Prior 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. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [p445] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
In Miranda the Court recognized the need to protect accused persons against coercive interrogations, and recognized that coercion does not necessarily involve physical violence - the Court discussed in detail the psychological interrogation techniques that were, and still are, used by police to obtain confessions from a person. The Miranda rule applies only when a person is in custody.
Edwards v. Arizona:
Edwards reaffirmed that questioning must cease when a person asserts their right to counsel, and that the police cannot come back later and re-initiate questioning unless the person's attorney is present.
Minnick v. Mississippi:
Minnick further clarified Miranda and Edwards, holding that once a person has requested counsel and spoken to counsel the police cannot then come back and re-initiate questioning without the attorney being present.
Michigan v. Jackson:
The rules of Miranda, Edwards, and Minnick were based on the Fifth Amendment right against self-incrimination, and applied only to custodial interrogation. Jackson extended the Edwards rule to post-arraignment interrogation, and held that once an accused person has requested an attorney at his arraignment the police cannot then initiate contact with the defendant and seek a waiver of his rights - it should make no difference whether a person is speaking to police or to a judge when he asks for the assistance of counsel.
Jackson held that interrogation by government agents is a critical stage of the proceedings where a defendant is entitled to the assistance of counsel under the Sixth Amendment, and recognized that police interrogation is often a coercive and one-sided endeavor. The language of the opinion makes clear the importance that the Jackson Court placed on the protections of the Sixth Amendment:
"[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings 'is far from a mere formalism.' Kirby v. Illinois, 406 U.S. at 406 U. S. 689. It is only at that time that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." 467 U.S. at 467 U. S. 189.As a result, the "Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State. . . ."
. . . "Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking, he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."
"The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly."
