Montejo is giving me headaches. Can someone confirm that I am understanding this correctly? Apparently my professor doesn't respond to emails.

After Montejo cops are only barred from approaching the D. once he actually invokes the right to counsel (under Miranda standards) but if the right has merely attached and has not been expressly invoked or if he gives a valid miranda waiver (which is low bar), then they can continue to seek information in the absence of counsel. And this is significant because under Jackson, the bar existed as soon as the right attached regardless of whether it had been expressly invoked or not. Is this right?

Thanks!

Montejo is a bitch because it's about the 6th Amendment, not Miranda and the 5th Amendment. If I am remember correctly, under Miranda (which is founded in the 5th Amendment), once a suspect invokes, the cops must cease any and all questioning, and cannot keep going back to pester him. But under the 6th Amendment (once you've been charged and it attaches), even though you may say you want an attorney present, the cops can keep coming back to ask you if you've changed your mind.




Here are my notes from Montejo, I hope it's helpful:

a. Montejo v. Louisiana
i. Edwards does not apply to 6th Amendment - even after an affirmative invocation of counsel, officers can keep approaching and ask if he has changed his mind
ii. No affirmative misrepresentations about counsel


b. Limitations under 6th Amendment under Montejo
i. Cannot deliberately elicit
1. Such as with an undercover officer
ii. To deliberately elicit, must have a voluntary and knowing waiver



1. Waiver
a. Must give Miranda
i. Patterson v. Illinois



iii. If a lawyer is trying to reach you, police must tell you - rejects Burbine for 6th Amendment purposes
1. Omission versus affirmative misrepresentation
a. Misrepresentations about counsel will render waiver invalid

• Montejo
○ Have to look at whether questioning is under 5th or 6th Amendment
○ Does Edwards attach?
○ Waiver?
○ 14 day break between approaches
○ SCOTUS left a lot of issues open regarding 5th versus 6th Application

This was my understanding as well. Reading Patterson might help as it more or less says the same thing, and in my opinion, it is written more clearly.

Thanks guys that helps . . . I think.

The confusing thing about it is that its not a Miranda case, but it applies the Miranda protections against the 6th amendment, which just makes it difficult to keep track of what's going on. So Jackson no longer applies, but all Jackson did was incorporate a Miranda protection (Edwards). So the court basically says: this Miranda based protection no longer applies, and substitutes in its place . . . Miranda protections. I think the effect is that outside of the post-indictment custodial interrogation context, the only protections that exist are Massiah (deliberate elicitation) and Due process, but I'm not positive. I'll probably just find a law review Note or something to help explain it. I'm finding Dressler's crim pro less than clear here.

Yes, Montejo makes it so if there's a finding of a 5th amendment waiver then the suspect also waived the 6th amendment right to counsel. Scalia felt there's enough prophylaxis in Miranda/Edwards/Minnick to keep the cops from bothering you, so discarded Jackson.

But there's no question of "invoking" for 6th am. Attachment is actually what matters (the problem here was caused by Justice Stevens' opinion in Jackson).

So while you have a 6th am right to counsel protecting against post-intiation deliberate elicitation by the government, your waiver of 5th amendment rights (indeed a low bar) discards that protection and removes the shield given by Massiah against post-indictment deliberate elicitation that isn't police custodial interrogation.

I think.

Yeah OP, your initial post is right, but here is the full line of cases, in case it helps.

We are trying to figure out if there is a Sixth Amendment Massiah violation: has a state actor deliberately elicited words from the defendant in the absence of defendant's counsel (post-attachment of the Sixth Amendment.) A related question here, is that can the defendant waive his Sixth Amendment right to counsel. In Michigan v. Jackson, the Supreme Court said that if defendant himself actually requests for counsel at arraignment, then any waiver of counsel after this point is invalid. (This from the Miranda context is the Edwards layer of prophylaxis.) So for these defendants who have actually represented counsel, state actors cannot come back and deliberately elicit these defendants unless counsel is present.

But in Montejo the Supreme Court overrules Jackson. The problem was that in some states (such as Louisiana), counsel was automatically appointed to defendants at their arraignments. Here, some courts were saying that no prophylaxis protection applies. In a situation where defendant is automatically appointed counsel, the defendant could waive his Sixth Amendment right without counsel being present. However, then, there is random disparity between states like Michigan and states like Lousiana, where the only difference is the procedure by which the state decides to give defendant's counsel. Rejecting this difference, the Supreme Court regardless of how counsel is appointed to defendants, a defendant can waive his right to counsel. There will be no presumption that the waiver was invalid.

The state needs to give warnings before a defendant can validly waive his Sixth Amendment right. Patterson tells us that Miranda warnings work in both contexts. If the defendant invokes his Sixth Amendment right to counsel though, then the state must leave and wait for some period of time before returning. No automatic 14 day bar though applies.

Here's this portion of my outline:
2) Represented? Invocation of Sixth Amendment right.
a) Is suspect represented?
i) Michigan v. Jackson (overruled!).
i) If suspect has had formal hearing and counsel requested, Edwards applies; police cannot come back for a waiver.
ii) "Edwards rule applies by analogy to those situations where an accused requests counsel before the arraigning magistrate. . . . Thus, because the police initiated the questioning, the post-arraignment waivers of Sixth Amendment were invalid."
ii) Montejo v. Louisiana
i) Courts shall not presume that a waiver of the Sixth Amendment right to counsel is invalid, even if defendant is represented. ("In determining whether a Sixth Amendment waiver was knowing and voluntary, there is no reason categorically to distinguish an unrepresented defendant from a represented one. It is equally true, as we held in Patterson, the Miranda warnings adequately inform him of his right to have counsel present during the questioning and make him aware of the consequences of a decision by him to waive his Sixth Amendment rights.")
iii) Louisiana Supreme Court: Since Louisiana automatically appoints counsel at arraignment (not requested), Edwards protection does not apply; there will be no presumption that the waiver was involuntary. Supreme Court rejects this argument as creating "arbitrary and anomalous distinctions between defendants in different States." (But this is a product of federalism? States may have different criminal procedures in place. But the Supreme Court rejects this here.)
iii) Police must wait some period of time (akin to Michigan v. Mosley but that is invocation of right to silence in Miranda context).

Maybe folks could critique this. Based on case law and class discussions, this is how I outlined my "quick attack" for a sixth amendment issue:

Who initiated the conversation after the defendant invoked his sixth amendment right to counsel?

• If police initiate after suspect/defendant invokes right to counsel, courts will generally repress statements; however,
• If suspect/defendant initiates revocation after invoking his right to counsel, it depends on the subject matter of the discussion. If it’s about the investigation: did the suspect knowingly and intelligently revoke her right to counsel? If yes-probably not suppressible. If not, probably suppressible.

Effect of Suppression-Still get the evidence in:
1. Inevitable discovery;
2. Independent source;
3. Defendant testifies or defense raises it in their case-in-chief.

Well it looks like everyone is thinking about this slightly differently. Don't you love how clear crim. professors are; I mean they are all such wonderful teachers. Anyway, just figured I'd add what I have to the mix:

d. Montejo v. LA
i. FACTS → Δ waived his miranda rights, then was placed in a preliminary hearing, at which point he was assigned counsel. Then the cops took him to find the murder weapon which he had told them he found. They read him his rights again and he wrote an apology letter during the trip which was inclulpatory. In this case, the court overrules the Jackson rule which said that after the 6th amendment right attached, the police were barred from beginning interrogation in the absence of counsel.
ii. RULE → Doctrines ensuring the voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver. "When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right will be involuntary."
iii. CONTEXTS
1) Pre-Indictment (or whatever preliminary adversarial proceeding there is) → 6th Amendment just does not apply
2) Post Indictment Custodial Interrogation With Miranda Assertion → Edwards, Minnick etc. apply and protect Δ
3) Post Indictment Custodial Interrogation Without Miranda Assertion → Apply the Miranda test for a valid waiver (Berguis fucks you)
4) Post Indictment No Custodial Interrogation → Massiah etc. and Due Process.

based on that last part in the post from Geist13, does anyone have a flow chart for crim pro? Or a step by step walkthrough?

I found it helpful but with the exam in less than 24 hours, I don't think I can make charts for every topic. email lawschool123@yahoo.com

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