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.
Imagine the following: a defendant is charged with a crime and released on bond. At his initial court appearance, he asks for and receives a court-appointed lawyer. A few days later, the police pick him up for questioning. When he arrives at the police station, his lawyer is not there. The police tell the defendant he is "free to go" if he chooses but suggest that it would be helpful to his case if he speaks with them. The defendant, unfamiliar with the criminal justice system and having not yet spoken to his lawyer, agrees to talk to the police without his lawyer being present. The defendant eventually admits he was at the scene of the crime, thus incriminating himself. This interrogation is conducted without the defense attorney's knowledge or consent.
For more than twenty years, this factual scenario was prohibited under Sixth Amendment jurisprudence. The Sixth Amendment generally prohibited the police from interrogating a suspect who had been charged with a crime and was represented by counsel. (1) Such questioning by an arm of the prosecution was considered a violation of a defendant's right to counsel under the Sixth Amendment. However, in the spring of 2009, the United States Supreme Court, in Montejo v. Louisiana, (2) overturned this bright-line prohibition. The Montejo Court held that a represented defendant could both waive his Sixth Amendment right to counsel and face police interrogation without his counsel being present. (3) As a result, the above hypothetical is likely now permissible under Sixth Amendment law.
The Montejo Court suggested that its decision would have a minimal impact on the protections afforded criminal defendants. (4) The Court also reasoned that the safeguards rooted in the Fifth Amendment right to counsel were sufficient protection of a defendant's right to counsel under the Sixth Amendment. (5) Moreover, the Court stated that the mechanism for waiving these distinct but overlapping rights to counsel is the same--the reading of rights and the subsequent waiver of rights as established in the Fifth Amendment cases of Miranda v. Arizona (6) and its progeny. (7)
At face value, equating a waiver of the Fifth Amendment right to counsel with a waiver of the Sixth Amendment right to counsel has an easy symmetry. However, this symmetry only extends so far. Historically, the Fifth Amendment right to counsel and the Sixth Amendment fight to counsel have distinct underlying goals and purposes. The fight to counsel of the Fifth Amendment is a safeguard recognized by the Supreme Court as necessary to protect the Fifth Amendment fight against compulsory self-incrimination. This fight to counsel is therefore only constitutionally required in the setting of custodial interrogation, as it is in this factual context that concerns of coerced confessions arise. (8) By contrast, the Sixth Amendment fight to counsel is in the text of the Amendment itself and protects all critical stages of criminal proceedings. (9) As such, the Sixth Amendment right to counsel serves the broader purpose of providing counsel as an intermediary between the defendant and the State and strives for the goal of a fair adversarial process.
The Montejo Court, however, failed to recognize the fundamental principles of the Sixth Amendment right to counsel and instead collapsed a Fifth Amendment analysis into its evaluation of a Sixth Amendment question. As a result, there are now many new questions about the scope of the Sixth Amendment right to counsel and the means by which a defendant may validly waive that right. (10) Specifically, the Court's assertion that the protections and procedures of Miranda and its progeny will govern a waiver of the Sixth Amendment fight to counsel does not resolve the question of what constitutes a valid waiver in situations that fall outside the confines of Miranda. Miranda and its progeny only apply to the narrow factual circumstance of custodial interrogation. (11) Yet the Sixth Amendment right to counsel is implicated in numerous situations that arise outside this limited purview. It is, therefore, critical to examine whether the formal waiver procedure associated with the Fifth Amendment right to counsel is sufficient to safeguard the interests protected by the Sixth Amendment fight to counsel in the many factual circumstances that implicate this Sixth Amendment right. Such an analysis raises additional questions regarding the validity of a waiver of the Sixth Amendment right to counsel, the circumstances under which a formal waiver would be necessary, and the extent to which the procedure for waiving these two rights can be the same.
Part I of this Article begins with a brief discussion of the fundamental purposes of--and the differences between--the Sixth Amendment fight to counsel and the Fifth Amendment right to counsel. Part I also previews the reasoning of the Montejo Court by discussing the earlier analytical blurring of these two rights in the context of police interrogation. Part II focuses specifically on the case of Montejo. Part II posits that the majority's conflation of the Sixth Amendment right to counsel with the Fifth Amendment right to counsel, as well as its unfounded assumptions regarding defense counsel's role in the criminal justice system, led directly to its problematic holding.
Part III challenges Montejo's conclusion that the formal waiver procedure established by Miranda and its progeny provides sufficient protection of a defendant's Sixth Amendment right to counsel. By illuminating the numerous questions that now exist in Sixth Amendment jurisprudence, this Part demonstrates that the Miranda cases provide little guidance for answers. These open questions are divided into three general inquiries: first, is a "formal waiver" (12) required to waive the Sixth Amendment right to counsel in situations in which a formal waiver is not required under Miranda? Second, if a formal waiver is required, what language should comprise such a waiver? Third, what police conduct will invalidate a Sixth Amendment waiver of counsel? Finally, this Article concludes by proposing ways in which courts should ensure a protective Sixth Amendment fight to counsel in the wake of the Montejo decision.
PAVING THE WAY FOR MONTEJO
The Right to Counsel of the Fifth and Sixth Amendments
The right to counsel of the Fifth Amendment and the fight to counsel of the Sixth Amendment have distinct constitutional underpinnings. (13) In addition, while both fights come into play in the context of police interrogation, they do so from different perspectives and with their own guiding concerns.
The Sixth Amendment right to counsel is a substantive right within the text of the Amendment, (14) which provides for "the accused ... to have the Assistance of Counsel for his defence." (15) The central purposes of this right are to protect the fundamental rights of criminal defendants and to ensure fairness in criminal proceedings. (16) In order to achieve these goals, the Sixth Amendment guarantees a criminal defendant "the fight to rely on counsel as a 'medium' between him and the State." (17) The provision of counsel is rooted in the recognition that the typical criminal defendant does not have legal knowledge or skills and that counsel is needed when a defendant is faced with an opponent who does have such knowledge and training. (18)
This fundamental interest in ensuring a fair adversarial process is reflected in the well-established principle that the Sixth Amendment fight to counsel attaches at the beginning of criminal proceedings. (19) It is at this point that the defendant is faced with the State as prosecutor and is required to understand both substantive and procedural law. (20) Placing the attachment point at the initial stage of criminal proceedings also reflects an understanding that events may occur in pretrial stages, "the results [of...