South Carolina Criminal Defense Blog

Prelude to Montejo
Montejo Part I

Montejo v. Louisiana, decided in May of this year, 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.

Why is Jackson no longer needed?

Edwards and Minnick held that once a defendant requests an attorney during custodial interrogation the police must cease questioning and must not re-initiate questioning without an attorney present. The purpose of these cases was to "prevent police from badgering defendants into changing their minds about their rights," the effect of which might be to "coerce a waiver, which would render the subsequent interrogation a violation of the [Fifth or] Sixth Amendment." The Court concludes that the trilogy of Miranda, Edwards, and Minnick are more than sufficient to protect defendants' Fifth and Sixth Amendment rights.

The police will not badger defendants into waiving their rights, because all a defendant need do is tell the police he does not want to speak without an attorney present, and the police will stop the interview.

Montejo shows a world-view that is in opposition to that of the Miranda/Edwards/Minnick/Jackson Courts

The Miranda decision and those that followed it recognized that coerced confessions were a reality and that physical beatings had given way to coercive psychological interrogation tactics such as the Reid Technique which is still used today.

In Michigan v. Jackson, the Court made the proud statement that "doubts must be resolved in favor of protecting the constitutional claim. . . . Waivers are presumed "involuntary based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interactions with police."

The Montejo Court balances the Constitution against the needs of law enforcement, and finds that the importance of the Sixth Amendment right to counsel protected by Jackson is minimal compared to “society’s compelling interest in finding, convicting, and punishing those who violate the law.”

The Montejo Court states that in determining whether a Sixth Amendment waiver was knowing and voluntary, "there is no reason categorically to distinguish an unrepresented defendant from a represented one." I can think of a reason - because that defendant has sought the protection of the Sixth Amendment. Because, as the Court stated in Jackson, "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 Court has shifted from one that had, for a time, placed the utmost importance upon the ideals of our founding fathers in protecting us from an oppressive government to a Court that, at least in the context of police interrogation, is willing to look the other way while those same ideals are violated by the same government.

Montejo shows a world-view that is sheltered and out of touch with reality

Reading the majority opinion in Montejo, the impression one is left with is that the authors have never practiced criminal law of any kind, have never been involved in a criminal investigation, and have never had a real police encounter.

The Court states that Miranda and Edwards are sufficient to protect defendants' Sixth Amendment right to counsel as well as their Fifth Amendment right against self-incrimination during custodial interrogations, because all a defendant needs to do is request an attorney and the police will immediately stop the interview.

Because police in this day and age are considerably more professional than they were in the days of Michigan v. Jackson, they will stop questioning a defendant. Because the Court said to. Except that is not always how it works - it never has been and I doubt that it ever will be. In order to obtain a waiver of Miranda, police can and do lie to their suspect. Many officers/investigators do things right, are conscientious, and respect the rules. Some record interviews from the moment they step into the room. Others don't. The statement that is heard in court is not often from the beginning of the interrogation. Often, before a waiver is given, the police must persuade the person to waive their rights - for example:

Cop: We want to speak to you, you don't mind do you?
D: I want my attorney to be here.
Cop: Why do you need an attorney if you have nothing to hide?
D: Well, he told me not to talk to the police.
Cop: It's only going to help your case if you talk to us. Your buddy is next door as we speak and he is blaming all of this on you. We know he's the bad guy, you only played a bit part in this, you aren't going to take the fall for this are you?
D: He's lying, I didn't do anything!
Cop: Well, listen, I need you to sign this form before we can talk anymore, I'll go over each line with you and you need to initial it here, here, here. It's just a formality.

The officer obtains a signed waiver of rights, then begins the interrogation anew. Once the officer gets a version of events that he feels will help to convict, the audio or video is turned on and the finished product is recorded for posterity.

The Montejo Court makes short thrift of the absence of any protections outside of the context of custodial interrogations - "noninterrogative interactions with the State do not involve the inherently compelling pressures that one might reasonably fear could lead to involuntary waivers." Non-custodial interrogations are "the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."

Lets review: When a defendant encounters the police in the real world, he is in control. He need only shut his door or walk away.

Effects of Montejo

- The police will now get at least one free shot at interrogating any defendant, regardless of the defendant's prior requests for counsel in court.

- There will be a marked increase in swearing contests between officer and defendant in pretrial motions to suppress (Defendant: I asked for a lawyer; Cop: No he didn't), which will almost always result in admission of the statement because the defendant has no way to prove what was said. Officers/investigators have the option of bringing a tape recorder or video recorder to an interview, but defendants do not. When there is a recording, the defendant does not operate it.

- We can expect some prosecutors to send investigators to question defendants without their attorney's knowledge, in preparation for trial. Note that Rule 4.2 of the ethics rules that govern attorneys prohibit any contact with a person who is represented by counsel, which also extends to contact through a third party such as an investigator or police officer:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

- When police begin to question defendants outside the presence of their attorneys, it will result in less confidence in the justice system and the reliability of convictions - false confessions have proven to be among the leading causes of wrongful convictions.

How do defense lawyers protect clients from interrogations after Montejo? We can instruct our clients not to speak to investigators about their case, and to only respond with "I want my lawyer," until the questions cease. Some clients, however, are susceptible to any perceived pressure from law enforcement (ironically, the same clients that may be most likely to falsely confess to something they did not do), and some police, despite what the Montejo Court may think, are quite persistent.

A member of our state criminal list-serve suggested that we file and serve notices declaring that our clients have not and will not waive their rights. The Court in Montejo notes, however, that Miranda rights cannot be asserted "anticipatorily":

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’. . . .” McNeil, supra, at 182, n. 3. What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation—not what happened at any preliminary hearing.

If a defendant is not protected under the Sixth Amendment by asserting his rights in open court, I don't see how he will be protected by asserting his rights in a document either.

The only other suggestion that I have at the moment is, when a statement obtained through post-arraignment (initial bond hearing) interrogation is sought to be introduced at trial, preserve an objection based on the State Constitution's right to counsel as well as the Federal Constitution. Increasingly, state courts are stepping in to protect the rights of their citizens when the federal courts will not, and perhaps the South Carolina Supreme Court will take up the challenge.

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."

I skimmed over Montejo v. Louisiana when it was released in May of this year, and did not take the time to read it and study it. That was a mistake - this is a must-read opinion that can and probably will change the practice of investigations and of criminal defense. Others have blogged about it and dissected it already, and back then Scott Greenfield pointed out that the case reinforces and makes even more important the directive that many of our clients ignore before retaining counsel: "The first thing out of your mouth is 'I want to speak with my lawyer.' Then shut up."

I was forced to take a look at Montejo when I discovered that a U.S. marshal, along with an unidentified SLED agent, had interviewed one of my clients at J. Reuben Long detention center a few days ago with no notice to myself, although I have been her attorney for approximately six months now and there is no question that she had invoked her right to counsel. I doubt that the marshal has heard of Montejo or reads appellate court opinions, but when I told other defense lawyers what he had done, their response was to read Montejo, which I did.

More on Montejo later. When I spoke with the marshal, he explained why there was nothing wrong with him and a SLED agent questioning my client:

1) It was ok, because he was only asking questions about her co-defendant who he is attempting to locate, and was not asking anything about her case. (Do I need to explain why questions about someone's co-defendant are exactly questions about that person's case?)

2) It was ok, because she waived her rights and signed a Miranda waiver form before he questioned her. (My response was it is not ok, because you do not approach my client and seek a waiver of her rights after she has invoked her right to counsel)

3) It was ok, because this is the way he has always done it and no-one has ever told him anything different. (My response was: the fact that you have been breaking the law for your entire career does not make it ok to break the law)

The truth is, if the marshal and SLED were looking for this individual that has disappeared off the grid, in this particular case we probably would not have had a problem with providing information to assist. He did not ask - instead he waltzed into the county jail and interrogated my client without my knowledge. Worse, he professes that he is not only unconcerned with my client's Sixth Amendment right to counsel, but that this is how he always does it.

I have been told that my client, when taken into the interrogation room, told them that she had a lawyer and did not want to speak with them. That they told her it was ok to talk with them, because they were only asking about the co-defendant. That it was ok to talk with them, because it would help her case. And that it was ok to talk with them, because I was a court-appointed lawyer who probably would not even come to see her for six months anyway.

I can't independently verify what was said, because I was not there. This is the danger of questioning a defendant outside of the presence of their attorney once they have asserted their right to counsel - unless there is a recording made, there are no witnesses. If a recording is made, the record button is not pressed until after the person has been persuaded to speak. What do you suppose happens when a case gets to court and the defendant says, "I told the officer I wanted my lawyer, but he kept after me," and the officer says, "No, she never said she wanted her lawyer?"

I was court-appointed to this particular case. That changes nothing regarding how I represent my client. We have visited this client three times in past 4 or 5 months, and have a regular correspondence with her. We care about this case no less than if she had paid a $20,000 fee. The part of the story where the interviewer essentially tells the defendant "trust me, because your court-appointed lawyer doesn't care about you," if that is what was said, would be the worst lie that was told to her in that meeting.

Edit: removed the marshal's name from the post.

"God bless America, god bless the Bill of Rights, and thank God for the Fifth Amendment. I'm not ashamed to say I'm proud of the Fifth Amendment . . . and I'm proud to admit that I will never talk to any police officer under any circumstances."

This has been around for a while, but it is worth re-posting it again. In the video below, Professor James Duane explains why you should always exercise your Fifth Amendment right to remain silent, and why you should never speak to the police or investigators under any circumstances.

It will never help. You cannot talk yourself out of getting arrested, and whatever you say (and possibly things that you don't say) will be used against you later as admissions. Anything that you say that could help you later will be inadmissible at trial because it is hearsay. Even the most innocent statement that you make can be used against you later, and James Duane explains how.