Crim Pro Q -6th Am Montejo-Please Help

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Crim Pro Q -6th Am Montejo-Please Help

Postby meliketoparty » Sun Nov 30, 2014 5:31 pm

Hi -

Someone please help me. I think 3/4s of my battle for understanding 5th & 6th Amendment protections is realizing that we have so few of them.

I don’t really get Montejo. Are the following statements the practical effect of it?

D is arrested, Miranda is administered. D invokes neither silence nor counsel. (Then 1 of 2 things could happen: 1) D eventually breaks down & signs a full blown confession* or 2) D remains mute.) Later, D goes to arraignment. D is appointed counsel there. (So counsel was never invoked, but counsel did attach at the time formal proceedings commenced.) D talks to counsel & is released on bail. Later, when D is out of custody, police approach D and start pestering D with questions. D tells them to fuck off.

So this ^ is how it goes, right? It doesn’t matter that formal proceedings have begun, etc.? Police can initiate & seek waiver?

Is all the above true EVEN when D invoked counsel during the custodial interrogation?

If that ^ is true, is this all really coming down to custodial interrogations? As in - invoking the right to counsel while in custody allows you to have counsel present during custodial interrogations, but that right does not extend to non-custodial questioning, etc? :|

* So long as D understood the Miranda warning, then the confession will be admissible no matter what b/c D invoked neither.

If anyone can help me I would be super appreciative!!!!

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Re: Crim Pro Q -6th Am Montejo-Please Help

Postby encore1101 » Sun Nov 30, 2014 7:07 pm

A defendant has two sources of Right to Counsel:

Under the Fifth Amendment, the right to counsel attaches when it is explicitly invoked by the defendant. Although there is no textual reference to the right to counsel in the Fifth Amendment, it is a prophylactic to ensure his due process rights are not violated, as well as to protect against self-incrimination.

Under the Sixth Amendment, the right to counsel attaches at the initiation of criminal proceedings.

Under Montejo, the police may approach defendant after defendant has been assigned counsel only if the defendant's counsel attached via the Sixth Amendment (i.e. defendant was arraigned).

If the defendant has an attorney vis-a-vis the Fifth Amendment (i.e. defendant clearly and unambiguously asked for an attorney while being questioned), then the police officers may not approach him. The rule that says police officers may not approach someone who invoked their Fifth Amendment RtC is to prevent police officers from changing a defendant's mind about whether to waive his rights or not. However, someone who hasn't invoked his right to counsel hasn't even made up his mind yet. A defendant who is represented via the Sixth Amendment may not even have asked for an attorney, but he has one because the State assigned him one.


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Re: Crim Pro Q -6th Am Montejo-Please Help

Postby meliketoparty » Sun Nov 30, 2014 7:49 pm

Thanks!!!! :D :D

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