South Carolina Lawyer
SC Lawyer, May 2010, #1.
Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements Part Two
South Carolina LawyerMay 2010Is It Admissible? Tips For Criminal Defense Attorneys on Assessing the Admissibility of a Criminal Defendant's Statements Part TwoBy John H. Blume and Emily C. Paavola Part One of this article addressed the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements. Part Two discusses the Sixth Amendment, the 14th Amendment's Due Process Clause and impeachment issues.
Was the statement obtained in violation of the Sixth Amendment?
The Sixth Amendment guarantees that in all criminal prosecutions "the accused shall enjoy the right to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. The essence of this right is the opportunity for a defendant to consult with an attorney and to have her investigate the case and prepare a defense for trial. Powell v. Alabama, 287 U.S. 45, 58 (1932). "The right is grounded in the presumed inability of a defendant to make informed choices about the preparation and conduct of his defense." State v. Quattlebaum, 338 S.C. 441, 446, 527 S.E.2d 105, 107 (2000) (quotation omitted).
In Michigan v. Jackson, 475 U.S. 625 (1986), the Court created a bright-line rule for deciding whether an accused who has "asserted" his Sixth Amendment right to counsel has subsequently waived that right. Transposing the reasoning of Edwards v. Arizona, 451 U.S. 477 (1981), which announced an identical "prophylactic rule" in the Fifth Amendment context, the Court held that after a defendant requests assistance of counsel, any waiver of Sixth Amendment rights given in a discussion initiated by police is presumed invalid, and evidence obtained pursuant to such a waiver is inadmissible in the prosecution's case in chief. Jackson, 475 U.S. at 636.
The Court recently overruled Jackson, however, in a 5-to-4 decision in Montejo v. Louisiana, (2009). Montejo originally raised only the narrow issue of whether a criminal defendant "asserts" his Sixth Amendment right to counsel when he simply stands mute while a judge orders the appointment of counsel, as Montejo did, or whether the defendant must do something more to affirmatively request counsel and thereby trigger the protections of the Sixth Amendment. But after oral argument in January 2009, the Supreme Court ordered supplemental briefing as to whether it should entirely overrule its former decision in Jackson, and ultimately the Court did just that.
The Court's decision in Montejo hinges on the argument that Jackson provides only a "meager benefit" that is not outweighed by its substantial costs. The majority ignored the traditional core of the Sixth Amendment and claimed instead that the real issue is protection from police badgering, not the defendant's right to the assistance of counsel. Montejo, 129 S.Ct. at 2089-90. The Court held that Fifth Amendment precedent, including Miranda,
Edwards and Minnick, already provides sufficient protection from coercive police practices. Id. at 2090. Although the Court acknowledged that Jackson's protection was designed to encompass situations broader than those protected by the Fifth Amendment, it dismissed that issue by simply asserting that the relevant reasoning is the weighing of the rule's benefits against its costs. And since the majority believed that "the marginal benefits of Jackson ... are dwarfed by its substantial costs (viz., hindering society's compelling interest in finding, convicting, and punishing those who violate the law)," the Court struck down its twenty-three-year-old precedent in Jackson as "superfluous." Id. (quotation omitted).
Thus, police are now free to initiate interrogation and attempt to obtain a waiver of rights even after the Sixth Amendment right to counsel has attached through the initiation of formal proceedings. In the aftermath of Montejo, the Sixth Amendment protection carries significantly less force. The issue can be analyzed by considering the following three questions.
1. Did the defendant have a Sixth Amendment right to counsel?
The Sixth Amendment right to counsel attaches once formal adversary proceedings have commenced against an individual. Brewer v. Williams, 430 U.S. 387, 398 (1977) ("[T]he right to counsel guaranteed by the Sixth...