Vol. 24 No. 15- U. S. Supreme court relaxes rules on police interrogations without counsel

June 16, 2009

The United States Supreme Court, in a 5 – 4 decision, in Montejo v. Louisiana, 173 L. Ed. 2d 955 (U.S. May 26, 2009) made it easier for police to interrogate a criminal suspect after an arraignment, without the presence of counsel.

The Right of the Accused to Counsel

A suspect who has been formally accused of a crime has a Sixth Amendment right to counsel.  This includes the right to have counsel present at trial, as well as during post-arraignment police interrogations.  Montejo, in the Court’s own words, “changes the legal landscape” of this right for both criminal defendants and the police.

Before this ruling, the courts presumed any waiver of the right to counsel by the accused, which was initiated by the police at a post-arraignment interrogation, to be invalid.

Now under the Montejo ruling, police can seek a waiver from the accused after an arraignment and the appointment or retention of counsel, by merely re-reading Miranda rights to the accused. Nor does the accused have to consult with counsel before waiving this right.

The Court held that the right to counsel may be waived by a defendant, even after counsel is appointed at arraignment, “so long as relinquishment of the right is voluntary, knowing, and intelligent.”

However, the law remains the same that if the accused does affirmatively invoke the right to counsel, the interrogation must cease until counsel arrives or the accused waives the right to counsel, without any prompting from police.

This decision not only impacts the rights of the accused in federal courts, but also changes the rights of the accused in California. The rights of criminal defendants which are guaranteed by our state constitution cannot “be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States.”  Cal Const, Art. I § 24.

Facts of Montejo

Jesse Montejo was arrested on suspicion of robbery and murder.  The suspect waived his Miranda rights and was interrogated at the local sheriff’s office.  Seventy-two (72) hours after his arrest, Montejo was arraigned and formally accused of murder and was appointed counsel by the court.

The Court noted that, after the arraignment, “two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow.”

“Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence.  At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death.”

Montejo appealed his conviction, arguing that the confession obtained by the police should have been suppressed at trial.  Montejo claimed his Sixth Amendment right to counsel was violated, because he did not confer with his attorney before the post-arraignment interrogation.

 Montejo Overrules A 1986 Decision Which Made Certain Waivers of Counsel Invalid.

The decision in Montejo v. Louisiana overturns the U.S. Supreme Court decision in Michigan v. Jackson, 475 U.S. 625 (1986).  The Michigan decision held that once a suspect was arraigned and formally accused of a crime, or an equivalent court proceeding occurred, no interrogations of the accused could occur unless counsel was present, or the accused voluntarily initiated the interrogation, by waiving his or her right to counsel without any prompting from the police.

However, Montejo held that 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.”

How this affects Your Agency

Even after counsel has been appointed by the Court (or counsel has been retained) police can seek from the accused a waiver of the right to counsel being present at interrogation.  If the waiver is “voluntary, knowing, and intelligent,” then police do not need to wait until counsel arrives for interrogation.

However, “a defendant who does not want to speak to the police without counsel present need only say as much when he is…given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited.”

Under those circumstances, the police must wait for counsel to arrive before interrogation can continue or for the accused, on his or her own initiative, to start the interrogation again.

We urge that you consult with your legal counsel before modifying your departmental policies which govern interrogations.  However, if you wish to discuss this case in greater detail, please feel free to contact either of us at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com orcfn@jones-mayer.com.