Police May Question Criminal Suspect After Lawyer Is Appointed

The U.S. Supreme Court in  Montejo v. Louisiana on 5/26/09 overruled a 23-year-old decision that bars police from questioning suspects without the presence of an appointed lawyer.

The court overturned  Michigan v. Jackson (1986) which held that once a suspect has asserted a right to counsel, any waiver of that right during police questioning is not valid unless the suspect initiated communication with them.

Petitioner Jesse Montejo waived his Miranda rights when police questioned him in connection with the robbery and murder of the owner of a dry cleaners.  He ultimately confessed to the crime.

At a later preliminary hearing, the judge ordered the appointment of a public defender. After another visit by detectives, Montejo wrote a letter of apology, which was introduced at his trial and challenged on appeal.

Justice Scalia wrote in the majority decision that 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 to counsel will be involuntary.

No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be amenable to speaking with the police without having legal counsel present. And no reason exists to prohibit the police from inquiring.

Justice Scalia noted that three other Supreme Court decisions sufficiently protect defendants from being badgered into confessing:

  • Miranda v. Arizona requires defendants to be advised of the right to a lawyer and the right against self-incrimination.
  • Edwards v. Arizona  requires police interrogation to stop once a defendant invokes his right to have counsel present.
  • Minnick v. Mississippi bars further police interrogation without the presence of counsel after the initial request for a lawyer.
  • Under these cases, a defendant who does not want to speak to the police without counsel present need only say as much when first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.

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