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Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality

Northwestern University Law Review (Colloquy), Vol. 103, p. 456, 2009

8 Pages Posted: 26 Aug 2009 Last revised: 1 Oct 2009

G. Ben Cohen

Independent

Bidish Sarma

University of California, Berkeley School of Law; The Justice Center's Capital Appeals Project

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute)

Date Written: August 20, 2009

Abstract

The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana1 and Kansas v. Ventris. Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves. Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment prophylactic rule with the Sixth Amendment right to counsel. The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda framework. This short essay explains why the Court should resist the temptation to do so.

Keywords: right to counsel, counsel, Sixth Amendment

Suggested Citation

Cohen, G. Ben and Sarma, Bidish and Smith, Robert J., Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality (August 20, 2009). Northwestern University Law Review (Colloquy), Vol. 103, p. 456, 2009. Available at SSRN: https://ssrn.com/abstract=1458244

G. Ben Cohen

Independent ( email )

No Address Available

Bidish Sarma

University of California, Berkeley School of Law ( email )

391 Simon Hall
UC Berkeley
Berkeley, CA 94720
United States

The Justice Center's Capital Appeals Project ( email )

636 Baronne St.
New Orleans, LA 70113
United States

Robert J. Smith (Contact Author)

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) ( email )

Cambridge, MA
United States

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