U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel

NCJ Number
American Criminal Law Review Volume: 48 Issue: 3 Dated: Summer 2011 Pages: 1335-1370
Eda Katharine Tinto
Date Published
36 pages
This article examines the sixth amendment right to counsel in light of the United States Supreme Court decision in Montejo vs. Louisiana.
In 2009, the U.S. Supreme Court ruled in Montejo vs. Louisiana that a represented defendant could both waive his sixth amendment right to counsel and face police interrogation without his counsel being present. This article examines the consequences for represented defendants of allowing law enforcement to question them without their counsel present. The author presents a detailed examination of defendants' rights under both the fifth and sixth amendments' right to counsel. Under the fifth amendment, the right to counsel comes into play regarding a defendant's right against compulsory self-incrimination, while under the sixth amendment, a defendant has the right to counsel for his defense. In the second section of the article, the author examines how the Supreme Court disregarded the fundamental right to counsel under the sixth amendment and based its decision solely on concerns of coercion are outlined in the fifth amendment. The author next presents several open questions resulting from the Court's ruling in Montejo, namely: 1) Is a formal waiver needed for the sixth amendment right to counsel; 2) what language should comprise a waiver of the sixth amendment right to counsel; and 3) what police conduct will invalidate a waiver of the sixth amendment right to counsel. The author concludes that the U.S. Supreme Court incorrectly valued the goal of unhampered police interrogations over the goal of ensuring fairness for defendants in its ruling in Montejo vs. Louisiana.