Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel

37 Pages Posted: 26 Oct 2011

See all articles by Katie Tinto

Katie Tinto

University of California, Irvine School of Law

Date Written: October 26, 2011

Abstract

This Article analyzes the future of the Sixth Amendment right to counsel following the United States Supreme Court case of Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Court overturned a long-standing prohibition on the interrogation of a represented defendant without his counsel present. Now, following Montejo, the police may approach a criminal defendant and ask him, outside the presence of his lawyer, to waive his Sixth Amendment right to have counsel present during an interrogation.

This significant change in Sixth Amendment law raises many new questions regarding the scope and procedure of a waiver of the Sixth Amendment right to counsel. In addressing these questions, this Article first critiques the Montejo decision for its conflation of the Sixth Amendment right to counsel with the Fifth Amendment right to counsel. This Article posits that the Court wrongly grafted Fifth Amendment notions of voluntariness and coercion onto its Sixth Amendment analysis, thereby ignoring traditional Sixth Amendment concerns, such as fairness in the adversarial process and the provision of counsel as an intermediary between the defendant and the State. This Article then considers several questions that arise in the wake of Montejo, including: whether a formal waiver is still needed to waive the Sixth Amendment right to counsel; if it is, what language constitutes a valid waiver; and what police conduct will invalidate a waiver? In answering each of these questions, this Article discusses the inherent limitations of the Montejo Court’s conclusion that the protections afforded by the Fifth Amendment right to counsel, namely those of Miranda and its progeny, offer sufficient protection of a defendant’s Sixth Amendment right to counsel. Finally, this Article argues that these Fifth Amendment-based protections are, in fact, insufficient, and courts should answer these post-Montejo questions by reaffirming the distinct fundamental principles that underlie the Court’s traditional Sixth Amendment right to counsel jurisprudence.

Suggested Citation

Tinto, Katie, Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel (October 26, 2011). American Criminal Law Review, Vol. 48, p. 1335, 2011, NYU School of Law, Public Law Research Paper No. 11-78, Available at SSRN: https://ssrn.com/abstract=1949804

Katie Tinto (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States
949-824-9247 (Phone)

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