Abstract

http://ssrn.com/abstract=1949804
 
 

Footnotes (191)



 


 



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


Katie Tinto


Benjamin N. Cardozo School of Law

October 26, 2011

American Criminal Law Review, Vol. 48, p. 1335, 2011
NYU School of Law, Public Law Research Paper No. 11-78

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.

Number of Pages in PDF File: 37

Accepted Paper Series


Download This Paper

Date posted: October 26, 2011  

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: http://ssrn.com/abstract=1949804

Contact Information

Katie Tinto (Contact Author)
Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
Feedback to SSRN


Paper statistics
Abstract Views: 945
Downloads: 134
Download Rank: 125,892
Footnotes:  191

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.250 seconds