The Police-Prosecutor Relationship and the No-Contact Rule: Conflicting Incentives after Montejo v. Louisiana and Maryland v. Shatzer

Abstract

Two recent cases decided in the last year, Montejo v. Louisiana and Maryland v. Shatzer, have been little noticed by commentators but together effect a significant change in the law of interrogation. Under the rules announced by the new cases, law-enforcement agents may now initiate uncounseled custodial contact with represented defendants in certain circumstances, including some in which a prosecutor is forbidden, under the ethical rules governing attorneys, from contacting the defendant, either personally or by proxy. This article is the first analysis of the new cases and their likely impact on criminal investigations. The article delineates the scope of the new constitutional rules and the likely points of divergence from the ethical rules, and highlights the potential problems this divergence may create in the particular context of the overlapping roles of police and prosecutors in investigating and prosecuting crime.