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Montejo and the Supreme Courts Limits on The Sixth Amendment Right to Counsel
By David L. McColgin
The Supreme Court’s decision in Montejo v. Louisiana1 last term is an assault on the attorney-client relationship. Under Montejo, police may now interrogate defendants in the absence of counsel, even after charges have been brought and counsel has been appointed or retained, as long as the defendants waive their rights under Miranda.2 Montejo, a 5-4 split decision, overrules the longstanding precedent of Michigan v. Jackson,3 which held that once a defendant requests counsel at an initial appearance in court, police may not initiate any interrogation.
This article discusses Montejo and what defense counsel can do in its aftermath to protect their clients’ Sixth Amendment right to counsel. The most important action counsel can take is to be sure clients expressly assert their right to remain silent and right to counsel by advising them to sign a formal “Assertion of Rights” form at their initial appearance in court. The use of such a form should become a routine part of criminal defense
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