Sixth Amendment Waivers

It will now be possible for law enforcement officers to attempt to obtain a waiver and an admissible statement from a defendant without running afoul of the Sixth Amendment.

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Since 1964, courts have been required to exclude confessions that were deliberately elicited from suspects after the Sixth Amendment right to counsel had attached (usually, by indictment or first court appearance) and had been asserted (as when the suspect retained, requested, or was appointed an attorney on the case). (Massiah v. U.S.)

In 1986, the Supreme Court said that police could not obtain a valid waiver of the Sixth Amendment right to counsel for an admissible statement on the charged case following attachment and assertion of the right. (Michigan v. Jackson) But just two years later, the court went halfway to overruling Jackson (Patterson v. Illinois), and has now completely reversed it. (Montejo v. Louisiana)

Michigan v. Jackson

Robert Bernard Jackson and three other men murdered a man as part of the victim's wife's plan. Jackson was arrested and arraigned, and he requested appointed counsel. The following morning, without counsel present, police officers approached Jackson, read him a Miranda warning, and obtained a waiver and an incriminating statement. The statement was used to convict Jackson of murder, but the Michigan Supreme Court reversed on the ground of Sixth Amendment error. The state appealed to the U.S. Supreme Court, and the Supreme Court affirmed.

The court pointed out that in a previous decision about the effects of a custodial suspect's invocation of the Miranda right to counsel, it had held that police could no longer obtain a valid waiver for renewed interrogation, unless an attorney was present or the suspect initiated discussions about the case. (Edwards v. Arizona) The court saw no reason for a different result when the right invoked was the separate Sixth Amendment right to counsel. Said the court:

"Written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis. We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." (Michigan v. Jackson)

The effect of the "Jackson rule" was that police-initiated interrogations of suspects who had been indicted or arraigned and had counsel (or had requested counsel) could not produce an admissible statement about the charged case, even if officers first took a waiver.

Patterson v. Illinois

Tyrone Patterson was part of a Chicago gang that beat a rival gang member to death. He was indicted for murder by the grand jury but had not yet gone to court or asked for counsel when a police officer read him Miranda rights in the jail and obtained a waiver and a statement. The trial court denied Patterson's motion to suppress his statements and he was convicted of murder.

After the Illinois Supreme Court rejected his argument that his Sixth Amendment rights were violated by the use of statements elicited from him after indictment, he appealed to the U.S. Supreme Court.

The Supreme Court affirmed. The court said that if Patterson had asserted his right to counsel, police could not have taken a valid waiver; but since the attached rights had not been asserted, a Miranda warning sufficed to obtain a valid waiver of both the Miranda "right" to counsel and the Sixth Amendment right. The court decided not to create a separate "Massiah warning" for a Sixth Amendment waiver.

"Our cases make it plain," said the court, "that the Sixth Amendment guaranteed defendant the right to have the assistance of counsel at his post-indictment interviews with law enforcement authorities. Defendant, however, at no time sought to exercise his right to have counsel present.

"While our cases have recognized a difference between the Fifth Amendment and Sixth Amendment rights to counsel, and the policies behind these constitutional guarantees, an accused who is admonished with the warnings prescribed by this Court in Miranda has been sufficiently apprised of his Sixth Amendment rights and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one." (Patterson v. Illinois)

Combining Jackson with Patterson, the court gave us a rule that if the suspect's Sixth Amendment right to counsel had attached and been asserted, there could be no valid waiver, and no admissible statement on that case, unless the suspect himself initiated discussions or his attorney was present.

However, if the right had only attached but had not been asserted, a Miranda waiver would also constitute a Massiah waiver, and police could take an admissible statement. This complex rule often proved difficult for law enforcement officers, lawyers, and judges to grasp and apply. Thankfully, it has now been simplified somewhat.

Montejo v. Louisiana

Police arrested Jesse Montejo for his role in a robbery and murder. He was taken before a magistrate for arraignment on the charges, and the magistrate announced that counsel would be appointed for him. Before Montejo had an opportunity to consult with his appointed attorney, detectives approached him, gave a Miranda warning, and took a waiver.

Montejo made incriminating statements that were admitted against him at his trial, and he was convicted. Louisiana appellate courts upheld the trial court decision allowing use of his statements, and Montejo appealed, arguing that use of his statements violated the Jackson rule.

In a 5-4 ruling, the U.S. Supreme Court affirmed Montejo's convictions and completely overruled the Jackson rule:

"Jackson deters law enforcement officers from even trying to obtain voluntary confessions. When the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process and the criminal justice system, we readily conclude that the rule does not pay its way. Michigan v. Jackson should be and is now overruled." (Montejo v. Louisiana)

Montejo also argued that the court should rule his statements inadmissible under the rule of the American Bar Association, forbidding lawyers from talking to an adverse party who is represented by counsel. Rejecting this argument, the court said that the ABA rule is not binding on the court and does not apply to police: "The Constitution does not codify the ABA Model Rules, and does not make investigating police officers lawyers."

The Effect of Montejo

Under the Montejo ruling, it will now be possible for law enforcement officers to attempt to obtain a waiver and an admissible statement from a defendant without running afoul of the Sixth Amendment, even after he has been indicted or has made his first court appearance on the case and has an attorney, or has asked for one. The court imposed no time limit on this new opportunity for questioning, which could presumably occur even during pretrial proceedings or the trial itself.

Remember that under the rulings in Edwards v. Arizona, Arizona v. Roberson, and Minnick v. Mississippi, the separate Miranda right to counsel might preclude getting an admissible statement if the defendant is in custody. Once a custodial suspect has invoked his Miranda "right" to counsel, police can no longer obtain a valid waiver for police-initiated interrogation as to any crime, as long as the person remains in continuous custody. (The Montejo case was remanded to the state courts to examine whether Montejo's statements were inadmissible under this rule.)

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."

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