With Montejo v. Louisiana, a unified Miranda warning now applies to custodial interrogation.
John Bradley
God asked Eve, “What is this you have done?” Eve, on behalf of everyone, replied, “The serpent tricked me, and I ate.”1 And so, without the intervention of Miranda warnings, lawyers, or an appellate court, God concluded the first recorded interrogation and dispensed justice upon Satan and man-kind.
Not having the same powers of omniscience and infinite perfection, humans have taken a more rule-based approach to interrogation. The Supreme Court’s recent decision in Montejo v. Louisiana2 provides a striking moment in the development of those bright-line interrogation rules. Tests under the Fifth and Sixth Amendments used to be separate and distinct, but the Montejo decision creates a new, far simpler test for the admissibility of a defendant’s confessions.
Case background
In 2002, Jesse Montejo was arrested as a suspect in a robbery and murder in Louisiana. Unlike Eve, Montejo heard Miranda warnings read to him before any interrogation.3 Like Eve, though, Montejo made an incriminating statement that minimized his participation, blaming a co-defendant for the worst of the crime. During a subsequent court appearance, similar to the procedure required in Texas by article 15.17 of the Code of Criminal Procedure (commonly called magistration), a judge notified Montejo of the charges pending against him, denied bail, and appointed an attorney. Montejo was then returned to jail, presumably to await indictment and the arrival of his lawyer.
Later that same day, as part of an ongoing investigation, police contacted Mon-tejo at the jail, again read to him Miranda rights, and asked him to show them where he disposed of the murder weapon. During that excursion, Montejo wrote a letter of apology to the victim’s widow. At trial, he challenged the admissibility of the letter, claiming that his Sixth Amendment right to counsel was violated when police contacted him despite the appointment of a lawyer.
“Hold on!” you exclaim. “This Montejo guy is right. His appointed attorney was not present when he confessed while writing a letter at the encouragement of police. That has to be an automatic violation.” After all, since 1986, the Supreme Court has protected the Sixth Amendment right to counsel by consistently applying the prophylactic, court-created rule adopted in Michigan v. Jackson4 prohibiting police from initiating contact with a suspect once that right to counsel has attached. (That likely explains why Montejo’s lawyer was “quite upset” about the post-appointment interrogation.)
And only last year, we learned from Walter Rothgery, a Texan arrested in Gillespie County, that a defendant’s initial appearance before a magistrate—even though it only follows arrest on a police officer’s complaint with no formal involvement of a prosecutor—is a triggering moment for the Sixth Amendment right to counsel.5 Applying the Rothgery decision, the Court of Criminal Appeals has since held that police may not initiate a conversation with a suspect after a magistrate conducts an article 15.17 procedure.6 How, then, could the Louisiana police lawfully initiate contact with Montejo after he had already made a Sixth Amendment-triggering appearance before a judge?
The simple answer is the Supreme Court changed the rule adopted in Jackson. Justice Scalia, writing for a five-judge majority, approached the issue as a pragmatist in search of a broad solution that would work in all 50 states. He also recognized that law enforcement, when rightfully pursuing custodial interrogation, is sometimes faced with the complex problem of applying two sets of rules in protecting a right to counsel that arises from both the Fifth and Sixth Amendments.7 With the Montejo decision, police in all 50 states now have a single consistent, clear constitutional rule.
To protect the privilege against self-incrimination under the Fifth Amendment, before initiating custodial interrogation, an officer must inform a defendant of his right to remain silent and his right to have an appointed or retained lawyer present.8 These are the classic Miranda rights. If a confession follows a defendant’s waiver of those Miranda rights, the courts must consider the confession presumptively voluntary. On the other hand, in Edwards v. Arizona,9 the Supreme Court held that if a defendant invokes the right to have a lawyer present, police may not proceed with interrogation until a lawyer is actually present.10 The Edwards bright-line rule prevents police from badgering a suspect into giving up the Fifth Amendment right to counsel after it has been invoked, but the defendant still must make an unambiguous request for this right to counsel. And an absent third party (such as a lawyer, priest, or the defendant’s mother who hires a lawyer on the defendant’s behalf) cannot invoke the right for the defendant.11 These decisions all emphasize that the Fifth Amend-ment right to counsel is a personal right that may be waived or invoked only by the defendant.
In protecting the Sixth Amend-ment right to counsel, the Supreme Court in Jackson adopted a more rigid rule than the one applied in the Miranda decision. In Jackson, the court held that regardless of whether a defendant had actually communicated any desire to have a lawyer present for interrogation, police could not initiate contact with a suspect following any event that triggered the attachment of that right to counsel. As states have moved toward early proceedings to appoint counsel following arrest, the Jackson rule has presented practical problems for police approaching a suspect for custodial interrogation. At the early stages of a case, how can a police officer know with certainty whether some procedure has already triggered the Sixth Amendment right to counsel? And, given the different laws and timing of appointment of counsel in the 50 states, the Jackson rule has resulted in radically different outcomes regarding a confession’s admissibility, each one depending on the venue of a suspect’s crime and the timing of interrogation.
Scalia found a solution to these questions by abandoning the Jackson rule and adopting a unified Miranda rule for protecting both the Fifth and Sixth Amendment rights to counsel. Now, the defendant, after hearing Miranda rights, must waive or invoke the right to remain silent and the right to an attorney. If the defendant waives those Miranda rights, then interrogation may continue, even if a lawyer has been appointed in a previous setting. In short, the defendant personally controls whether to have a lawyer present for interrogation by invoking or waiving that right.
Heading off defense arguments
Defense attorneys no doubt will argue that the Montejo decision is not so clear when applied to Texas law. Montejo, they will argue, was interrogated in Louisiana, where appointment of counsel is automatic. Texas law, on the other hand, requires an indigent defendant to request appointed counsel.12 Shouldn’t that express request for appointment of counsel serve as an actual invocation of the Sixth Amendment right to counsel and prevent police from contacting the defendant, even if only for the limited purpose of interrogation?
Anticipating that challenge, Scalia wrote, “What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation—not what happened at any preliminary proceeding.” In other words, regardless of how a particular state’s law triggers the right to counsel under the Sixth Amendment, a defendant still must protect that right to counsel as it applies to custodial interrogation by expressly invoking it for the purpose of preventing or delaying interrogation. And, once invoked, the police must cease contact with the defendant unless and until counsel is actually present.13 On the other hand, if a defendant, even after appointment of counsel, independently decides to waive the right to counsel after presentation of Miranda rights for the purpose of custodial interrogation, then a constitutionally acceptable interrogation may take place.
Justice Scalia came to believe that adopting the more flexible Miranda rights standard for protecting the Sixth Amendment right to counsel was appropriate because he placed great weight on society’s proper expectation that law enforcement should be able to pursue evidence, especially a confession, so long as a defendant’s personal rights were protected. The rigid Jackson rule too often prevented police from pursuing a confession, even under circumstances that did not threaten the defendant’s right to counsel. Prosecutors should recognize that Montejo is a remarkable—perhaps radical—alteration of the constitutional scenery as applied to custodial interrogation.
No doubt there will be much litigation over this new rule. Indeed, Montejo himself has been given a second chance, through remand, to litigate whether he actually waived his Sixth Amendment right to counsel before writing a letter of apology. On remand, he may well complain that he was confused about his right to counsel. Courts may be inclined to apply strict scrutiny to such a waiver, especially if the defendant requested and was appointed an attorney before interrogation took place. Prosecutors should advise police to act carefully before contacting a suspect who may have already appeared before a magistrate, making sure to document and record a clear, unambiguous waiver of Miranda rights.
Ethics alert
Before advising police about contacting a potentially represented defendant for interrogation, prosecutors should consider Texas ethics Rule 4.02(a) for lawyers.14 That no-contact rule is designed to prevent interference with the attorney-client relationship once it has been formed.15 Note that the no-contact rule applies only to lawyers, not police officers but does discourage lawyers from encouraging police officers to make contact with a represented defendant. However, the no-contact rule does not apply if the lawyer is “authorized by law” to advise another person to make such contact.
Under the authorized-by-law exception, Rule 4.02(a) would not be violated if the Montejo decision is new case “law” that authorizes contacting a represented defendant for the limited purpose of interrogation.16 This would seem comparable to past caselaw authorizing law enforcement to respond to contact initiated by a represented defendant.17 Perhaps even stronger authorization is contained in the Texas confession statute, expressly accepting the use of a confession as evidence so long as the defendant received Miranda warnings from a magistrate or an officer and waived those rights before interrogation took place.18
Likewise, the no-contact rule would not apply if the prosecutor advised an officer to contact a represented defendant for information about a subject other than the subject that triggered the representation.19 And, of course, if the defendant does not yet actually have a lawyer, by appointment or otherwise, he would not be represented, and there would be no violation of the no-contact rule.
Balanced against the no-contact rule is the duty of all prosecutors to educate the police. Indeed, the American Bar Association Standards for Criminal Justice strongly encourage prosecutors to work with police and advise them on investigative decisions. One of those standards, while reminding prosecutors not to circumvent ethical rules that apply to lawyers, expressly provides: “The prosecutor may provide legal advice to law enforcement agents regarding the use of investigative techniques that law enforcement agents are authorized to use.”20 That standard certainly suggests some tension between the no-contact rule and the duties of a prosecutor.
Even if defense counsel could ultimately allege a prosecutor’s violation of the no-contact rule, suppression of an otherwise admissible confession is not a remedy; state disciplinary rules are not part of the “laws” subject to the exclusionary rule.21 Nonetheless, prosecutors should act carefully in this area. Perhaps the most cautious approach for now would be for prosecutors to educate police in general as to the constitutionally acceptable choices in seeking to interrogate potentially represented defendants without providing any express advice in a particular case.
The Montejo decision is a dramatic simplification of the custodial interrogation landscape in what has otherwise been a legal minefield. Confessions, which for decades have been viewed as violating the Sixth Amendment right to counsel, may now be constitutionally acceptable.22 Nonetheless, numerous new questions will be raised as lawyers and police begin to apply the Montejo decision. In the meantime, prosecutors should continue to educate law enforcement on the powerful influence of a lawful confession, press for careful documentation of the interrogation process, and encourage the use of modern recording equipment whenever possible.✤
Endnotes
1 Genesis, 3:13.
2 556 U.S. __ (2009).
3 Arguably, Eve was not in custody and, therefore, not entitled to Miranda warnings. Even so, the warnings likely would not have been helpful, given the absence of any lawyers and God’s ability to know Eve’s thoughts before she expressed them.
4 475 U.S. 625 (1986).
5 Rothgery v. Gillespie County, 554 U.S. __ (2008).
6 Pecina v. State, 268 S.W.3d 564 (Tex. Crim. App. 2008).
7 The Fifth Amendment right to counsel is implied in the Miranda rights that protect the Privilege Against Self-Incrimination. U.S. Const. amend. V. The Sixth Amendment right to counsel is an express clause. U.S. Const. amend. VI.
8 Miranda v. Arizona, 384 U.S. 436 (1966).
9 Edwards v. Arizona, 451 U.S. 477 (1981).
10 If the defendant invokes his right to remain silent, a different standard applies. Michigan v. Mosely, 423 U.S. 96 (1975) (requiring that right to remain silent be “scrupulously honored”). For an application of the factors relevant to that standard, see Maestas v. State, 987 S.W.2d 59 (Tex. Crim. App. 1999).
11 Moran v. Burbine, 475 U.S. 412 (1986).
12 Tex. Code Crim. Proc. art. 1.051.
13 Note that a defendant may independently initiate contact with the police following invocation of a Miranda right. Michigan v. Harvey, 494 U.S. 344, 352 (“But nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney.”).
14 See Texas Disciplinary Rule of Conduct, 4.02(a) (“In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization, or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so”).
15 See also Texas Disciplinary Rule of Conduct, 3.09(b) (“The prosecutor shall . . . refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining counsel and has been given reasonable opportunity, to obtain counsel.”).
16 See also Heinrich v. State, 694 S.W.2d 341, 343 n.2 (Tex. Crim. App. 1985)(State Prosecuting Attorney argued that various laws authorized prosecutor to investigate criminal cases by recording phone call to defendant).
17 See, e.g., State v. Maldonado, 259 S.W.3d 184 (Tex. Crim. App. 2008) (officer lawfully received incriminating letter from defendant following appointment of counsel because conduct initiated by defendant); Heinrich v. State, 694 S.W.2d 341, 343 n.2 (Tex. Crim. App. 1985)(State Prosecuting Attorney argued that defendant initiated conversation).
18 Tex. Code Crim. Pro. art. 38.22.
19 See Texas v. Cobb, 532 U.S. 162 (2001) (Miranda rule is offense-specific; invocation of Miranda right to counsel or right to silence for one offense does not automatically prevent interrogation on separate offense).
20 ABA Criminal Justice Section Standards, Prosecutorial Investigations, Standard 1.3(g) (approved 2/08) (www.abanet.org/crimjust/ standards/pinvestigate.html). Cf. National District Attorneys Association Prosecutor Standards 2-7.6 (3rd Edition)(“A prosecutor performing his or her duty to investigate criminal activity should neither be intimidated by nor discouraged from communicating with a defendant or suspect in the absence of his or her counsel when the communication is authorized by law or court rule or order.”).
21 Pannell v. State, 666 S.W.2d 96 (Tex. Crim. App. 1984).
22 See, e.g., Pecina v. State, 268 S.W.3d 564 (Tex. Crim. App. 2008).