(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MONTEJO v. LOUISIANA 

CERTIORARI TO THE SUPREME COURT OF LOUISIANA 

No. 07–1529. Argued January 13, 2009—Decided May 26, 2009 

At a preliminary hearing required by Louisiana law, petitioner Montejo 

was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his 

rights under Miranda v. Arizona, 384 U. S. 436, and he agreed to go

along on a trip to locate the murder weapon. During the excursion,

he wrote an inculpatory letter of apology to the victim’s widow. Upon

returning, he finally met his court-appointed attorney. At trial, his 

letter was admitted over defense objection, and he was convicted and

sentenced to death. Affirming, the State Supreme Court rejected his 

claim that the letter should have been suppressed under the rule of 

Michigan v. Jackson, 475 U. S. 625, which forbids police to initiate

interrogation of a criminal defendant once he has invoked his right to

counsel at an arraignment or similar proceeding. The court reasoned 

that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise asserted

his Sixth Amendment right to counsel; and that, since Montejo stood

mute at his hearing while the judge ordered the appointment of

counsel, he had made no such request or assertion. 

Held: 

1. Michigan v. Jackson should be and now is overruled. Pp. 3–18.

(a) The State Supreme Court’s interpretation of Jackson would 

lead to practical problems. Requiring an initial “invocation” of the

right to counsel in order to trigger the Jackson presumption, as the

court below did, might work in States that require an indigent defendant formally to request counsel before an appointment is made, but

not in more than half the States, which appoint counsel without request from the defendant. Pp. 3–6.

(b) On the other hand, Montejo’s solution is untenable as a theoretical and doctrinal matter. Eliminating the invocation requirement 
2 MONTEJO v. LOUISIANA 

Syllabus 

entirely would depart fundamentally from the rationale of Jackson, 

whose presumption was created by analogy to a similar prophylactic

rule established in Edwards v. Arizona, 451 U. S. 477, to protect the 

Fifth Amendment-based Miranda right. Both Edwards and Jackson 

are meant to prevent police from badgering defendants into changing 

their minds about the right to counsel once they have invoked it, but

a defendant who never asked for counsel has not yet made up his 

mind in the first instance. Pp. 6–13.

(c) Stare decisis does not require the Court to expand significantly the holding of a prior decision in order to cure its practical deficiencies. To the contrary, the fact that a decision has proved “unworkable” is a traditional ground for overruling it. Payne v. 

Tennessee, 501 U. S. 808, 827. Beyond workability, the relevant factors include the precedent’s antiquity, the reliance interests at stake,

and whether the decision was well reasoned. Pearson v. Callahan, 

555 U. S. ___, ___. The first two cut in favor of jettisoning Jackson: 

the opinion is only two decades old, and eliminating it would not upset expectations, since any criminal defendant learned enough to order his affairs based on Jackson’s rule would also be perfectly capable

of interacting with the police on his own. As for the strength of Jackson’s reasoning, when this Court creates a prophylactic rule to protect a constitutional right, the relevant “reasoning” is the weighing of 

the rule’s benefits against its costs. Jackson’s marginal benefits are 

dwarfed by its substantial costs. Even without Jackson, few badgering-induced waivers, if any, would be admitted at trial because the

Court has taken substantial other, overlapping measures to exclude 

them. Under Miranda, any suspect subject to custodial interrogation 

must be advised of his right to have a lawyer present. 384 U. S., at 

474. Under Edwards, once such a defendant “has invoked his 

[Miranda] right,” interrogation must stop. 451 U. S., at 484. And 

under Minnick v. Mississippi, 498 U. S. 146, no subsequent interrogation may take place until counsel is present. Id., at 153. These 

three layers of prophylaxis are sufficient. On the other side of the 

equation, the principal cost of applying Jackson’s rule is that crimes 

can go unsolved and criminals unpunished when uncoerced confessions are excluded and when officers are deterred from even trying to 

obtain confessions. The Court concludes that the Jackson rule does 

not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6, 

and thus the case should be overruled. Pp. 13–18. 

2. Montejo should nonetheless be given an opportunity to contend 

that his letter of apology should have been suppressed under the Edwards rule. He understandably did not pursue an Edwards objection, because Jackson offered broader protections, but the decision 

here changes the legal landscape. Pp. 18–19. 
Cite as: 556 U. S. ____ (2009) 3 

Syllabus 

06–1807 (La.), 974 So. 2d 1238, vacated and remanded. 

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a 

concurring opinion, in which KENNEDY, J., joined. STEVENS, J., filed a 

dissenting opinion, in which SOUTER and GINSBURG, JJ., joined, and in 

which BREYER, J., joined, except for n. 5. BREYER, J., filed a dissenting 

opinion. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 07–1529 

JESSE JAY MONTEJO, PETITIONER v. 

LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

LOUISIANA

[May 26, 2009] 

JUSTICE SCALIA delivered the opinion of the Court. 

We consider in this case the scope and continued viability of the rule announced by this Court in Michigan v. 

Jackson, 475 U. S. 625 (1986), forbidding police to initiate 

interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding. 

I 

Petitioner Jesse Montejo was arrested on September 6, 

2002, in connection with the robbery and murder of Lewis

Ferrari, who had been found dead in his own home one 

day earlier. Suspicion quickly focused on Jerry Moore, a

disgruntled former employee of Ferrari’s dry cleaning 

business. Police sought to question Montejo, who was a

known associate of Moore. 

Montejo waived his rights under Miranda v. Arizona, 

384 U. S. 436 (1966), and was interrogated at the sheriff’s

office by police detectives through the late afternoon and

evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly 

changed his account of the crime, at first claiming that he 
2 MONTEJO v. LOUISIANA 

Opinion of the Court 

had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in

the course of a botched burglary. These police interrogations were videotaped.

On September 10, Montejo was brought before a judge

for what is known in Louisiana as a “72-hour hearing”—a

preliminary hearing required under state law.1 Although

the proceedings were not transcribed, the minute record

indicates what transpired: “The defendant being charged

with First Degree Murder, Court ordered N[o] Bond set in

this matter. Further, Court ordered the Office of Indigent

Defender be appointed to represent the defendant.” App.

to Pet. for Cert. 63a. 

Later that same day, 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. 

The Louisiana Supreme Court affirmed the conviction

and sentence. 06–1807 (1/16/08), 974 So. 2d 1238 (2008).

As relevant here, the court rejected Montejo’s argument

that under the rule of Jackson, supra, the letter should 

—————— 

1 “The sheriff or law enforcement officer having custody of an arrested 

person shall bring him promptly, and in any case within seventy-two 

hours from the time of the arrest, before a judge for the purpose of

appointment of counsel.” La. Code Crim. Proc. Ann., Art. 230.1(A) 

(West Supp. 2009). 
Cite as: 556 U. S. ____ (2009) 3 

Opinion of the Court 

have been suppressed. 974 So. 2d, at 1261. Jackson held 

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.” 

475 U. S., at 636. 

Citing a decision of the United States Court of Appeals 

for the Fifth Circuit, Montoya v. Collins, 955 F. 2d 279 

(1992), the Louisiana Supreme Court reasoned that the 

prophylactic protection of Jackson is not triggered unless

and until the defendant has actually requested a lawyer or

has otherwise asserted his Sixth Amendment right to

counsel. 974 So. 2d, at 1260–1261, and n. 68. Because 

Montejo simply stood mute at his 72-hour hearing while 

the judge ordered the appointment of counsel, he had 

made no such request or assertion. So the proper inquiry,

the court ruled, was only whether he had knowingly,

intelligently, and voluntarily waived his right to have

counsel present during the interaction with the police. Id., 

at 1261. And because Montejo had been read his Miranda 

rights and agreed to waive them, the Court answered that 

question in the affirmative, 974 So. 2d, at 1262, and upheld the conviction. 

We granted certiorari. 554 U. S. ___ (2008). 

II 

Montejo and his amici raise a number of pragmatic

objections to the Louisiana Supreme Court’s interpretation of Jackson. We agree that the approach taken below 

would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in 

different States. Neither would be acceptable. 

Under the rule adopted by the Louisiana Supreme

Court, a criminal defendant must request counsel, or 

otherwise “assert” his Sixth Amendment right at the 

preliminary hearing, before the Jackson protections are 
4 MONTEJO v. LOUISIANA 

Opinion of the Court 

triggered. If he does so, the police may not initiate further

interrogation in the absence of counsel. But if the court on 

its own appoints counsel, with the defendant taking no 

affirmative action to invoke his right to counsel, then 

police are free to initiate further interrogations provided

that they first obtain an otherwise valid waiver by the 

defendant of his right to have counsel present.

This rule would apply well enough in States that require

the indigent defendant formally to request counsel before

any appointment is made, which usually occurs after the 

court has informed him that he will receive counsel if he 

asks for it. That is how the system works in Michigan, for 

example, Mich. Ct. Rule 6.005(A) (2009), whose scheme 

produced the factual background for this Court’s decision 

in Michigan v. Jackson. Jackson, like all other represented indigent defendants in the State, had requested

counsel in accordance with the applicable state law. 

But many States follow other practices. In some two 

dozen, the appointment of counsel is automatic upon a 

finding of indigency, e.g., Kan. Stat. Ann. §22–4503(c) 

(2007); and in a number of others, appointment can be 

made either upon the defendant’s request or sua sponte by

the court, e.g., Del. Code Ann., Tit. 29, §4602(a) (2003).

See App. to Brief for National Legal Aid & Defender Assn. 

et al. as Amici Curiae 1a–21a. Nothing in our Jackson 

opinion indicates whether we were then aware that not all 

States require that a defendant affirmatively request 

counsel before one is appointed; and of course we had no 

occasion there to decide how the rule we announced would 

apply to these other States. 

The Louisiana Supreme Court’s answer to that unresolved question is troublesome. The central distinction it 

draws—between defendants who “assert” their right to

counsel and those who do not—is exceedingly hazy when 

applied to States that appoint counsel absent request from 

the defendant. How to categorize a defendant who merely 
Cite as: 556 U. S. ____ (2009) 5 

Opinion of the Court 

asks, prior to appointment, whether he will be appointed 

counsel? Or who inquires, after the fact, whether he has 

been? What treatment for one who thanks the court after 

the appointment is made? And if the court asks a defendant whether he would object to appointment, will a quick 

shake of his head count as an assertion of his right? 

To the extent that the Louisiana Supreme Court’s rule

also permits a defendant to trigger Jackson through the

“acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed 

by court order? An indigent defendant has no right to

choose his counsel, United States v. Gonzalez-Lopez, 548 

U. S. 140, 151 (2006), so it is hard to imagine what his 

“acceptance” would look like, beyond the passive silence

that Montejo exhibited.

In practice, judicial application of the Louisiana rule in 

States that do not require a defendant to make a request 

for counsel could take either of two paths. Courts might

ask on a case-by-case basis whether a defendant has 

somehow invoked his right to counsel, looking to his conduct at the preliminary hearing—his statements and 

gestures—and the totality of the circumstances. Or, 

courts might simply determine as a categorical matter

that defendants in these States—over half of those in the 

Union—simply have no opportunity to assert their right to 

counsel at the hearing and are therefore out of luck. 

Neither approach is desirable. The former would be 

particularly impractical in light of the fact that, as amici 

describe, preliminary hearings are often rushed, and are

frequently not recorded or transcribed. Brief for National 

Legal Aid & Defender Assn. et al. 25–30. The sheer volume of indigent defendants, see id., at 29, would render 

the monitoring of each particular defendant’s reaction to 

the appointment of counsel almost impossible. And sometimes the defendant is not even present. E.g., La. Code 

Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009) (allow-
6 MONTEJO v. LOUISIANA 

Opinion of the Court 

ing court to appoint counsel if defendant is “unable to

appear”). Police who did not attend the hearing would

have no way to know whether they could approach a particular defendant; and for a court to adjudicate that question ex post would be a fact-intensive and burdensome 

task, even if monitoring were possible and transcription 

available. Because “clarity of . . . command” and “certainty of . . . application” are crucial in rules that govern

law enforcement, Minnick v. Mississippi, 498 U. S. 146, 

151 (1990), this would be an unfortunate way to proceed.

See also Moran v. Burbine, 475 U. S. 412, 425–426 (1986).

The second possible course fares no better, for it would

achieve clarity and certainty only at the expense of introducing arbitrary distinctions: Defendants in States that

automatically appoint counsel would have no opportunity

to invoke their rights and trigger Jackson, while those in 

other States, effectively instructed by the court to request

counsel, would be lucky winners. That sort of hollow 

formalism is out of place in a doctrine that purports to

serve as a practical safeguard for defendants’ rights. 

III 

But if the Louisiana Supreme Court’s application of 

Jackson is unsound as a practical matter, then Montejo’s 

solution is untenable as a theoretical and doctrinal matter. 

Under his approach, once a defendant is represented by

counsel, police may not initiate any further interrogation.

Such a rule would be entirely untethered from the original

rationale of Jackson. 

A 

It is worth emphasizing first what is not in dispute or at

stake here. Under our precedents, once the adversary

judicial process has been initiated, the Sixth Amendment 

guarantees a defendant the right to have counsel present 

at all “critical” stages of the criminal proceedings. United 
Cite as: 556 U. S. ____ (2009) 7 

Opinion of the Court 

States v. Wade, 388 U. S. 218, 227–228 (1967); Powell v. 

Alabama, 287 U. S. 45, 57 (1932). Interrogation by the 

State is such a stage. Massiah v. United States, 377 U. S. 

201, 204–205 (1964); see also United States v. Henry, 447 

U. S. 264, 274 (1980).

Our precedents also place beyond doubt that the Sixth

Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary,

knowing, and intelligent. Patterson v. Illinois, 487 U. S. 

285, 292, n. 4 (1988); Brewer v. Williams, 430 U. S. 387, 

404 (1977); Johnson v. Zerbst, 304 U. S. 458, 464 (1938).

The defendant may waive the right whether or not he is

already represented by counsel; the decision to waive need

not itself be counseled. Michigan v. Harvey, 494 U. S. 344, 

352–353 (1990). And when a defendant is read his 

Miranda rights (which include the right to have counsel 

present during interrogation) and agrees to waive those

rights, that typically does the trick, even though the 

Miranda rights purportedly have their source in the Fifth 

Amendment: 

“As a general matter . . . an accused who is admonished with the warnings prescribed by this Court in 

Miranda . . . has been sufficiently apprised of the nature 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, supra, at 296. 

The only question raised by this case, and the only one 

addressed by the Jackson rule, is whether courts must 

presume that such a waiver is invalid under certain circumstances. 475 U. S., at 630, 633. We created such a 

presumption in Jackson by analogy to a similar prophylactic rule established to protect the Fifth Amendment based 

Miranda right to have counsel present at any custodial 

interrogation. Edwards v. Arizona, 451 U. S. 477 (1981), 
8 MONTEJO v. LOUISIANA 

Opinion of the Court 

decided that once “an accused has invoked his right to 

have counsel present during custodial interrogation . . . 

[he] is not subject to further interrogation by the authorities until counsel has been made available,” unless he 

initiates the contact. Id., at 484–485. 

The Edwards rule is “designed to prevent police from 

badgering a defendant into waiving his previously asserted Miranda rights,” Harvey, supra, at 350. It does this 

by presuming his postassertion statements to be involuntary, “even where the suspect executes a waiver and his 

statements would be considered voluntary under traditional standards.” McNeil v. Wisconsin, 501 U. S. 171, 177 

(1991). This prophylactic rule thus “protect[s] a suspect’s

voluntary choice not to speak outside his lawyer’s presence.” Texas v. Cobb, 532 U. S. 162, 175 (2001) (KENNEDY, 

J., concurring). 

Jackson represented a “wholesale importation of the 

Edwards rule into the Sixth Amendment.” Cobb, supra, at 

175. The Jackson Court decided that a request for counsel 

at an arraignment should be treated as an invocation of 

the Sixth Amendment right to counsel “at every critical 

stage of the prosecution,” 475 U. S., at 633, despite doubt 

that defendants “actually inten[d] their request for counsel 

to encompass representation during any further questioning,” id., at 632–633, because doubts must be “resolved in 

favor of protecting the constitutional claim,” id., at 633. 

Citing Edwards, the Court held that any subsequent

waiver would thus be “insufficient to justify policeinitiated interrogation.” 475 U. S., at 635. In other words, 

we presume such waivers involuntary “based on the supposition that suspects who assert their right to counsel are 

unlikely to waive that right voluntarily” in subsequent 

interactions with police. Harvey, supra, at 350. 

The dissent presents us with a revisionist view of Jackson. The defendants’ request for counsel, it contends, was 

important only because it proved that counsel had been 
Cite as: 556 U. S. ____ (2009) 9 

Opinion of the Court 

appointed. Such a non sequitur (nowhere alluded to in the 

case) hardly needs rebuttal. Proceeding from this fanciful

premise, the dissent claims that the decision actually

established “a rule designed to safeguard a defendant’s

right to rely on the assistance of counsel,” post, at 6–7 

(opinion of STEVENS, J.), not one “designed to prevent

police badgering,” post, at 7. To safeguard the right to 

assistance of counsel from what? From a knowing and 

voluntary waiver by the defendant himself? Unless the 

dissent seeks to prevent a defendant altogether from

waiving his Sixth Amendment rights, i.e., to “imprison a

man in his privileges and call it the Constitution,” Adams 

v. United States ex rel. McCann, 317 U. S. 269, 280 

(1942)—a view with zero support in reason, history or case

law—the answer must be: from police pressure, i.e., badgering. The antibadgering rationale is the only way to 

make sense of Jackson’s repeated citations of Edwards, 

and the only way to reconcile the opinion with our waiver

jurisprudence.2 

B 

With this understanding of what Jackson stands for and 

whence it came, it should be clear that Montejo’s interpretation of that decision—that no represented defendant can 

ever be approached by the State and asked to consent to

interrogation—is off the mark. When a court appoints

counsel for an indigent defendant in the absence of any 

request on his part, there is no basis for a presumption 

—————— 

2The dissent responds that Jackson also ensures that the defendant’s 

counsel receives notice of any interrogation, post, at 6, n. 2. 

But notice to what end? Surely not in order to protect some constitutional right to receive counsel’s advice regarding waiver of the right to

have counsel present. Contrary to the dissent’s intimations, neither the 

advice nor the presence of counsel is needed in order to effectuate a 

knowing waiver of the Sixth Amendment right. Our cases make clear 

that the Miranda waivers typically suffice; indeed, even an unrepresented defendant can waive his right to counsel. See supra, at 7. 
10 MONTEJO v. LOUISIANA 

Opinion of the Court 

that any subsequent waiver of the right to counsel will be

involuntary. There is no “initial election” to exercise the 

right, Patterson, 487 U. S., at 291, that must be preserved 

through a prophylactic rule against later waivers. No 

reason exists to assume that a defendant like Montejo,

who has done nothing at all to express his intentions with

respect to his Sixth Amendment rights, would not be

perfectly amenable to speaking with the police without 

having counsel present. And no reason exists to prohibit

the police from inquiring. Edwards and Jackson are 

meant to prevent police from badgering defendants into 

changing their minds about their rights, but a defendant 

who never asked for counsel has not yet made up his mind 

in the first instance. 

The dissent’s argument to the contrary rests on a flawed 

a fortiori: “If a defendant is entitled to protection from

police-initiated interrogation under the Sixth Amendment 

when he merely requests a lawyer, he is even more obviously entitled to such protection when he has secured a 

lawyer.” Post, at 3. The question in Jackson, however, 

was not whether respondents were entitled to counsel

(they unquestionably were), but “whether respondents

validly waived their right to counsel,” 475 U. S., at 630;

and even if it is reasonable to presume from a defendant’s 

request for counsel that any subsequent waiver of the right 

was coerced, no such presumption can seriously be entertained when a lawyer was merely “secured” on the defendant’s behalf, by the State itself, as a matter of course. Of 

course, reading the dissent’s analysis, one would have no 

idea that Montejo executed any waiver at all. 

In practice, Montejo’s rule would prevent police-initiated 

interrogation entirely once the Sixth Amendment right

attaches, at least in those States that appoint counsel 

promptly without request from the defendant. As the 

dissent in Jackson pointed out, with no expressed disagreement from the majority, the opinion “most assuredly 
Cite as: 556 U. S. ____ (2009) 11 

Opinion of the Court 

[did] not hold that the Edwards per se rule prohibiting all

police-initiated interrogations applies from the moment

the defendant’s Sixth Amendment right to counsel attaches, with or without a request for counsel by the defendant.” 475 U. S., at 640 (opinion of Rehnquist, J.). That 

would have constituted a “shockingly dramatic restructuring of the balance this Court has traditionally struck 

between the rights of the defendant and those of the larger

society.” Ibid. 

Montejo’s rule appears to have its theoretical roots in 

codes of legal ethics, not the Sixth Amendment. The 

American Bar Association’s Model Rules of Professional 

Conduct (which nearly all States have adopted into law in

whole or in part) mandate that “a lawyer shall not communicate about the subject of [a] representation with a

party the lawyer knows to be represented by another

lawyer in the matter, unless the lawyer has the consent of 

the other lawyer or is authorized to do so by law or a court

order.” Model Rule 4.2 (2008). But the Constitution does 

not codify the ABA’s Model Rules, and does not make

investigating police officers lawyers. Montejo’s proposed

rule is both broader and narrower than the Model Rule. 

Broader, because Montejo would apply it to all agents of 

the State, including the detectives who interrogated him,

while the ethical rule governs only lawyers. And narrower, because he agrees that if a defendant initiates

contact with the police, they may talk freely—whereas a 

lawyer could be sanctioned for interviewing a represented 

party even if that party “initiates” the communication and 

consents to the interview. Model Rule 4.2, Comment 3. 

Montejo contends that our decisions support his interpretation of the Jackson rule. We think not. Many of the

cases he cites concern the substantive scope of the Sixth

Amendment—e.g., whether a particular interaction with

the State constitutes a “critical” stage at which counsel is

entitled to be present—not the validity of a Sixth Amend-
12 MONTEJO v. LOUISIANA 

Opinion of the Court 

ment waiver. See Maine v. Moulton, 474 U. S. 159 (1985); 

Henry, 447 U. S. 264; Massiah, 377 U. S. 201; see also 

Moran, 475 U. S. 412. Since everyone agrees that absent a

valid waiver, Montejo was entitled to a lawyer during the 

interrogation, those cases do not advance his argument.

Montejo also points to descriptions of the Jackson holding in two later cases. In one, we noted that “analysis of

the waiver issue changes” once a defendant “obtains or

even requests counsel.” Harvey, 494 U. S., at 352. But 

elsewhere in the same opinion, we explained that Jackson 

applies “after a defendant requests assistance of counsel,”

494 U. S., at 349; “when a suspect charged with a crime

requests counsel outside the context of interrogation,” id., 

at 350; and to “suspects who assert their right to counsel,” 

ibid. The accuracy of the “obtains” language is thus questionable. Anyway, since Harvey held that evidence obtained in violation of the Jackson rule could be admitted 

to impeach the defendant’s trial testimony, 494 U. S., at 

346, the Court’s varying descriptions of when the rule was

violated were dicta. The dictum from the other decision, 

Patterson, supra, at 290, n. 3, is no more probative.3 

The upshot is that even on Jackson’s own terms, it 

—————— 

3 In the cited passage, the Court noted that “[o]nce an accused has a 

lawyer, a distinct set of constitutional safeguards aimed at preserving

the sanctity of attorney-client relationship takes effect.” Patterson, 487 

U. S., at 290, n. 3. To support that proposition, the Court cited Maine 

v. Moulton, 474 U. S. 159 (1985), which was not a case about waiver. 

The passage went on to observe that “the analysis changes markedly

once an accused even requests the assistance of counsel,” 487 U. S., at 

290, n. 3 (emphasis in original), this time citing Jackson. Montejo 

infers from the “even requests” that having counsel is more conclusive of 

the invalidity of uncounseled waiver than the mere requesting of 

counsel. But the Patterson footnote did not suggest that the analysis

“changes” in both these scenarios (having a lawyer, versus requesting

one) with specific reference to the validity of waivers under the Sixth 

Amendment. The citation of Moulton (a nonwaiver case) for the first

scenario suggests just the opposite. 
Cite as: 556 U. S. ____ (2009) 13 

Opinion of the Court 

would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced simply because he had previously been 

appointed a lawyer. 

IV 

So on the one hand, requiring an initial “invocation” of

the right to counsel in order to trigger the Jackson presumption is consistent with the theory of that decision, but

(as Montejo and his amici argue, see Part II, supra) would

be unworkable in more than half the States of the Union. 

On the other hand, eliminating the invocation requirement would render the rule easy to apply but depart fundamentally from the Jackson rationale. 

We do not think that stare decisis requires us to expand 

significantly the holding of a prior decision— 

fundamentally revising its theoretical basis in the process—in order to cure its practical deficiencies. To the 

contrary, the fact that a decision has proved “unworkable”

is a traditional ground for overruling it. Payne v. Tennessee, 501 U. S. 808, 827 (1991). Accordingly, we called for 

supplemental briefing addressed to the question whether 

Michigan v. Jackson should be overruled. 

Beyond workability, the relevant factors in deciding

whether to adhere to the principle of stare decisis include 

the antiquity of the precedent, the reliance interests at

stake, and of course whether the decision was well reasoned. Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip 

op., at 8). The first two cut in favor of abandoning Jackson: the opinion is only two decades old, and eliminating it 

would not upset expectations. Any criminal defendant 

learned enough to order his affairs based on the rule 

announced in Jackson would also be perfectly capable of

interacting with the police on his own. Of course it is 

likely true that police and prosecutors have been trained

to comply with Jackson, see generally Supplemental Brief 
14 MONTEJO v. LOUISIANA 

Opinion of the Court 

for Larry D. Thompson et al. as Amici Curiae, but that is 

hardly a basis for retaining it as a constitutional requirement. If a State wishes to abstain from requesting interviews with represented defendants when counsel is not 

present, it obviously may continue to do so.4 

Which brings us to the strength of Jackson’s reasoning. 

When this Court creates a prophylactic rule in order to

protect a constitutional right, the relevant “reasoning” is 

the weighing of the rule’s benefits against its costs. “The 

value of any prophylactic rule . . . must be assessed not

only on the basis of what is gained, but also on the basis of 

what is lost.” Minnick, 498 U. S., at 161 (SCALIA, J., dissenting). We think that the marginal benefits of Jackson 

(viz., the number of confessions obtained coercively that 

are suppressed by its bright-line rule and would otherwise

have been admitted) are dwarfed by its substantial costs

(viz., hindering “society’s compelling interest in finding,

convicting, and punishing those who violate the law,” 

Moran, supra, at 426).

 What does the Jackson rule actually achieve by way of 

preventing unconstitutional conduct? Recall that the 

purpose of the rule is to preclude the State from badgering 

defendants into waiving their previously asserted rights. 

See Harvey, supra, at 350; see also McNeil, 501 U. S., at 

177. The effect of this badgering might be to coerce a 

waiver, which would render the subsequent interrogation 

a violation of the Sixth Amendment. See Massiah, supra, 

at 204. Even though involuntary waivers are invalid even 

—————— 

4The dissent posits a different reliance interest: “the public’s interest

in knowing that counsel, once secured, may be reasonably relied upon 

as a medium between the accused and the power of the State,” post, at 

9. We suspect the public would be surprised to learn that a criminal

can freely sign away his right to a lawyer, confess his crimes, and then

ask the courts to assume that the confession was coerced—on the 

ground that he had, at some earlier point in time, made a pro forma

statement requesting that counsel be appointed on his behalf. 
Cite as: 556 U. S. ____ (2009) 15 

Opinion of the Court 

apart from Jackson, see Patterson, 487 U. S., at 292, n. 4, 

mistakes are of course possible when courts conduct caseby-case voluntariness review. A bright-line rule like that 

adopted in Jackson ensures that no fruits of interrogations 

made possible by badgering-induced involuntary waivers 

are ever erroneously admitted at trial. 

 But without Jackson, how many would be? The answer 

is few if any. The principal reason is that the Court has

already taken substantial other, overlapping measures 

toward the same end. Under Miranda’s prophylactic 

protection of the right against compelled selfincrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. 384 U. S., at 474. 

Under Edwards’ prophylactic protection of the Miranda 

right, once such a defendant “has invoked his right to have 

counsel present,” interrogation must stop. 451 U. S., at 

484. And under Minnick’s prophylactic protection of the 

Edwards right, no subsequent interrogation may take 

place until counsel is present, “whether or not the accused 

has consulted with his attorney.” 498 U. S., at 153. 

These three layers of prophylaxis are sufficient. Under 

the Miranda-Edwards-Minnick line of cases (which is not 

in doubt), a defendant who does not want to speak to the

police without counsel present need only say as much 

when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact

end, but “badgering” by later requests is prohibited. If 

that regime suffices to protect the integrity of “a suspect’s

voluntary choice not to speak outside his lawyer’s presence” before his arraignment, Cobb, 532 U. S., at 175 

(KENNEDY, J., concurring), it is hard to see why it would

not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And 

if so, then Jackson is simply superfluous.

It is true, as Montejo points out in his supplemental 
16 MONTEJO v. LOUISIANA 

Opinion of the Court 

brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment, not Sixth

Amendment, rights. But that is irrelevant. What matters 

is that these cases, like Jackson, protect the right to have

counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process 

has begun) by two sources of law. Since the right under

both sources is waived using the same procedure, Patterson, supra, at 296, doctrines ensuring voluntariness of the 

Fifth Amendment waiver simultaneously ensure the 

voluntariness of the Sixth Amendment waiver. 

Montejo also correctly observes that the MirandaEdwards regime is narrower than Jackson in one respect: 

The former applies only in the context of custodial interrogation. If the defendant is not in custody then those decisions do not apply; nor do they govern other, noninterrogative types of interactions between the defendant and the

State (like pretrial lineups). However, those uncovered 

situations are the least likely to pose a risk of coerced 

waivers. When a defendant is not in custody, he is in

control, and need only shut his door or walk away to avoid 

police badgering. And noninterrogative interactions with

the State do not involve the “inherently compelling pressures,” Miranda, supra, at 467, that one might reasonably 

fear could lead to involuntary waivers. 

Jackson was policy driven, and if that policy is being 

adequately served through other means, there is no reason 

to retain its rule. Miranda and the cases that elaborate 

upon it already guarantee not simply noncoercion in the

traditional sense, but what Justice Harlan referred to as 

“voluntariness with a vengeance,” 384 U. S., at 505 (dissenting opinion). There is no need to take Jackson’s further step of requiring voluntariness on stilts. 

On the other side of the equation are the costs of adding 

the bright-line Jackson rule on top of Edwards and other 

extant protections. The principal cost of applying any 
Cite as: 556 U. S. ____ (2009) 17 

Opinion of the Court 

exclusionary rule “is, of course, letting guilty and possibly 

dangerous criminals go free . . . .” Herring v. United 

States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson 

not only “operates to invalidate a confession given by the 

free choice of suspects who have received proper advice of 

their Miranda rights but waived them nonetheless,” Cobb, 

supra, at 174–175 (KENNEDY, J., concurring), but also

deters law enforcement officers from even trying to obtain

voluntary confessions. The “ready ability to obtain uncoerced confessions is not an evil but an unmitigated good.” 

McNeil, 501 U. S., at 181. Without these confessions, 

crimes go unsolved and criminals unpunished. These are 

not negligible costs, and in our view the Jackson Court 

gave them too short shrift.5 

Notwithstanding this calculus, Montejo and his amici 

urge the retention of Jackson. Their principal objection to 

its elimination is that the Edwards regime which remains

will not provide an administrable rule. But this Court has 

praised Edwards precisely because it provides “‘clear and 

unequivocal’ guidelines to the law enforcement profession,” Arizona v. Roberson, 486 U. S. 675, 682 (1988). Our 

cases make clear which sorts of statements trigger its

protections, see Davis v. United States, 512 U. S. 452, 459 

(1994), and once triggered, the rule operates as a bright

line. Montejo expresses concern that courts will have to

determine whether statements made at preliminary hearings constitute Edwards invocations—thus implicating all 

the practical problems of the Louisiana rule we discussed 

above, see Part II, supra. That concern is misguided. “We 

—————— 

5The dissent claims that, in fact, few confessions have been suppressed by federal courts applying Jackson. Post, at 8. If so, that is 

because, as the dissent boasts, “generations of police officers have been 

trained to refrain from approaching represented defendants,” post, at 9, 

n. 4. Anyway, if the rule truly does not hinder law enforcement or

make much practical difference, see post, at 7–9, and nn. 3–4, then 

there is no reason to be particularly exercised about its demise. 
18 MONTEJO v. LOUISIANA 

Opinion of the Court 

have in fact never held that a person can invoke his 

Miranda rights anticipatorily, in a context other than 

‘custodial interrogation’. . . .” McNeil, supra, at 182, n. 3. 

What matters for Miranda and Edwards is what happens

when the defendant is approached for interrogation, and 

(if he consents) what happens during the interrogation—

not what happened at any preliminary hearing. 

In sum, when the marginal benefits of the Jackson rule 

are weighed against its substantial costs to the truthseeking process and the criminal justice system, we readily conclude that the rule does not “pay its way,” United 

States v. Leon, 468 U. S. 897, 907–908, n. 6 (1984). Michigan v. Jackson should be and now is overruled. 

V 

Although our holding means that the Louisiana Supreme Court correctly rejected Montejo’s claim under 

Jackson, we think that Montejo should be given an opportunity to contend that his letter of apology should still

have been suppressed under the rule of Edwards. If Montejo made a clear assertion of the right to counsel when 

the officers approached him about accompanying them on 

the excursion for the murder weapon, then no interrogation should have taken place unless Montejo initiated it. 

Davis, supra, at 459. Even if Montejo subsequently agreed 

to waive his rights, that waiver would have been invalid 

had it followed an “unequivocal election of the right,” 

Cobb, 532 U. S., at 176 (KENNEDY, J., concurring).

Montejo understandably did not pursue an Edwards 

objection, because Jackson served as the Sixth Amendment analogy to Edwards and offered broader protections.

Our decision today, overruling Jackson, changes the legal 

landscape and does so in part based on the protections

already provided by Edwards. Thus we think that a remand is appropriate so that Montejo can pursue this 

alternative avenue for relief. Montejo may also seek on 
Cite as: 556 U. S. ____ (2009) 19 

Opinion of the Court 

remand to press any claim he might have that his Sixth

Amendment waiver was not knowing and voluntary, e.g., 

his argument that the waiver was invalid because it was 

based on misrepresentations by police as to whether he

had been appointed a lawyer, cf. Moran, 475 U. S., at 428– 

429. These matters have heightened importance in light 

of our opinion today. 

We do not venture to resolve these issues ourselves, not 

only because we are a court of final review, “not of first

view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), 

but also because the relevant facts remain unclear. Montejo and the police gave inconsistent testimony about 

exactly what took place on the afternoon of September 10, 

2002, and the Louisiana Supreme Court did not make an

explicit credibility determination. Moreover, Montejo’s

testimony came not at the suppression hearing, but rather

only at trial, and we are unsure whether under state law 

that testimony came too late to affect the propriety of the

admission of the evidence. These matters are best left for 

resolution on remand. 

We do reject, however, the dissent’s revisionist legal 

analysis of the “knowing and voluntary” issue. Post, at 

10–14. 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. It is equally true for each that, as 

we held in Patterson, the Miranda warnings adequately

inform him “of his right to have counsel present during the

questioning,” and make him “aware of the consequences of 

a decision by him to waive his Sixth Amendment rights,” 

487 U. S., at 293. Somewhat surprisingly for an opinion

that extols the virtues of stare decisis, the dissent complains that our “treatment of the waiver question rests

entirely on the dubious decision in Patterson,” post, at 12. 

The Court in Patterson did not consider the result dubious, 

nor does the Court today. 
20 MONTEJO v. LOUISIANA 

Opinion of the Court 

* * * 

This case is an exemplar of Justice Jackson’s oft quoted 

warning that this Court “is forever adding new stories to 

the temples of constitutional law, and the temples have a 

way of collapsing when one story too many is added.” 

Douglas v. City of Jeannette, 319 U. S. 157, 181 (1943) 

(opinion concurring in result). We today remove Michigan 

v. Jackson’s fourth story of prophylaxis.

The judgment of the Louisiana Supreme Court is vacated, and the case is remanded for further proceedings

not inconsistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

ALITO, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 07–1529 

JESSE JAY MONTEJO, PETITIONER v. 

LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

LOUISIANA

[May 26, 2009] 

JUSTICE ALITO, with whom JUSTICE KENNEDY joins,

concurring. 

Earlier this Term, in Arizona v. Gant, 556 U. S. ___ 

(2009), the Court overruled New York v. Belton, 453 U. S. 

454 (1981), even though that case had been on the books

for 28 years, had not been undermined by subsequent

decisions, had been recently reaffirmed and extended, had 

proven to be eminently workable (indeed, had been

adopted for precisely that reason), and had engendered 

substantial law enforcement reliance. See Gant, supra, at 

___ (slip op., at 4) (ALITO, J., dissenting). The Court took 

this step even though we were not asked to overrule Belton and this new rule is almost certain to lead to a host of 

problems. See Gant, supra, at ___ (slip op., at 10) (ALITO, 

J., dissenting); Megginson v. United States, post, p. ___; 

Grooms v. United States, post, p. ___. 

JUSTICE SCALIA, who cast the deciding vote to overrule 

Belton, dismissed stare decisis concerns with the following

observation: “[I]t seems to me ample reason that the

precedent was badly reasoned and produces erroneous . . . 

results.” Gant, supra, at ___ (slip op., at 3) (concurring 

opinion). This narrow view of stare decisis provides 

the only principle on which the decision in Gant can be 

justified.

In light of Gant, the discussion of stare decisis in today’s 
2 MONTEJO v. LOUISIANA 

ALITO, J., concurring 

dissent* is surprising. The dissent in the case at hand 

criticizes the Court for “[a]cting on its own” in reconsidering Michigan v. Jackson, 475 U. S. 625 (1986). Post, at 4 

(opinion of STEVENS, J.). But the same was true in Gant, 

and in this case, the Court gave the parties and interested 

amici the opportunity to submit supplemental briefs on

the issue, a step not taken in Gant. 

The dissent faults the Court for “cast[ing] aside the 

reliance interests of law enforcement,” post, at 8–9, but in 

Gant, there were real and important law enforcement

interests at stake. See 556 U. S., at ___ (slip op., at 5–6) 

(ALITO, J., dissenting). Even the Court conceded that the 

Belton rule had “been widely taught in police academies 

and that law enforcement officers ha[d] relied on the rule

in conducting vehicle searches during the past 28 years.” 

556 U. S., at ___ (slip op., at 16). And whatever else might

be said about Belton, it surely provided a bright-line rule.

A month ago, none of this counted for much, but today 

the dissent writes: 

“Jackson’s bright-line rule has provided law enforcement officers with clear guidance, allowed prosecutors

to quickly and easily assess whether confessions will

be admissible in court, and assisted judges in determining whether a defendant’s Sixth Amendment 

rights have been violated by police interrogation.” 

Post, at 8. 

It is striking that precisely the same points were true in 

Gant: 

“[Belton’s] bright-line rule ha[d] provided law enforcement officers with clear guidance, allowed prose-

—————— 

*One of the dissenters in the present case, JUSTICE BREYER, also 

dissented in Gant and would have followed Belton on stare decisis 

grounds. See 556 U. S., at ___ (slip op., at 1). Thus, he would not 

overrule either Belton or Michigan v. Jackson, 475 U. S. 625 (1986). 
Cite as: 556 U. S. ____ (2009) 3 

ALITO, J., concurring 

cutors to quickly and easily assess whether [evidence 

obtained in a vehicle search] w[ould] be admissible in

court, and assisted judges in determining whether a

defendant’s [Fourth] Amendment rights ha[d] been

violated by police interrogation.” Post, at 8. 

The dissent, finally, invokes Jackson’s antiquity, stating 

that “the 23-year existence of a simple bright-line rule” 

should weigh in favor of its retention. Post, at 9. But in 

Gant, the Court had no compunction about casting aside a

28-year-old bright-line rule. I can only assume that the

dissent thinks that our constitutional precedents are like 

certain wines, which are most treasured when they are 

neither too young nor too old, and that Jackson, at 23, is 

in its prime, whereas Belton, at 28, had turned brownish 

and vinegary.

I agree with the dissent that stare decisis should promote “‘the evenhanded . . . development of legal principles,’” post, at 6 (quoting Payne v. Tennessee, 501 U. S. 

808, 827–828 (1991)). The treatment of stare decisis in 

Gant fully supports the decision in the present case. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

STEVENS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–1529 

JESSE JAY MONTEJO, PETITIONER v. 

LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

LOUISIANA

[May 26, 2009] 

JUSTICE STEVENS, with whom JUSTICE SOUTER and 

JUSTICE GINSBURG join, and with whom JUSTICE BREYER 

joins, except for footnote 5, dissenting. 

Today the Court properly concludes that the Louisiana 

Supreme Court’s parsimonious reading of our decision in 

Michigan v. Jackson, 475 U. S. 625 (1986), is indefensible.

Yet the Court does not reverse. Rather, on its own initiative and without any evidence that the longstanding Sixth

Amendment protections established in Jackson have 

caused any harm to the workings of the criminal justice 

system, the Court rejects Jackson outright on the ground

that it is “untenable as a theoretical and doctrinal matter.” Ante, at 6. That conclusion rests on a misinterpretation of Jackson’s rationale and a gross undervaluation of

the rule of stare decisis. The police interrogation in this

case clearly violated petitioner’s Sixth Amendment right 

to counsel. 

I 

The Sixth Amendment provides that “[i]n all criminal 

prosecutions, the accused shall enjoy the right . . . to have

the Assistance of Counsel for his defence.” The right to 

counsel attaches during “the initiation of adversary judicial criminal proceedings,” Rothgery v. Gillespie County, 

554 U. S. ___, ___ (2008) (slip op., at 5) (internal quotation 
2 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

marks omitted), and it guarantees the assistance of counsel not only during in-court proceedings but during all 

critical stages, including postarraignment interviews with

law enforcement officers, see Patterson v. Illinois, 487 

U. S. 285, 290 (1988).

In Jackson, this Court considered whether the Sixth 

Amendment bars police from interrogating defendants 

who have requested the appointment of counsel at arraignment. Applying the presumption that such a request

constitutes an invocation of the right to counsel “at every

critical stage of the prosecution,” 475 U. S., at 633, we held 

that “a defendant who has been formally charged with a 

crime and who has requested appointment of counsel at 

his arraignment” cannot be subject to uncounseled interrogation unless he initiates “exchanges or conversations 

with the police,” id., at 626. 

In this case, petitioner Jesse Montejo contends that

police violated his Sixth Amendment right to counsel by 

interrogating him following his “72-hour hearing” outside

the presence of, and without prior notice to, his lawyer. 

The Louisiana Supreme Court rejected Montejo’s claim.

Relying on the fact that the defendants in Jackson had 

“requested” counsel at arraignment, the state court held 

that Jackson’s protections did not apply to Montejo because his counsel was appointed automatically; Montejo

had not explicitly requested counsel or affirmatively accepted the counsel appointed to represent him before he 

submitted to police interrogation. 06–1807, pp. 28–29

(1/16/08), 974 So. 2d 1238, 1261.

I agree with the majority’s conclusion that the Louisiana

Supreme Court’s decision, if allowed to stand, “would lead

either to an unworkable standard, or to arbitrary and 

anomalous distinctions between defendants in different 

States,” ante, at 3. Neither option is tolerable, and neither 

is compelled by Jackson itself. 

Our decision in Jackson involved two consolidated cases, 
Cite as: 556 U. S. ____ (2009) 3 

STEVENS, J., dissenting 

both arising in the State of Michigan. Under Michigan

law in effect at that time, when a defendant appeared for 

arraignment the court was required to inform him that

counsel would be provided if he was financially needy and 

he requested representation. Mich. Gen. Ct. Rule 785.4(1) 

(1976). It was undisputed that the Jackson defendants 

made such a “request” at their arraignment: one by completing an affidavit of indigency, and the other by responding affirmatively to a question posed to him by the court.

See App. in Michigan v. Jackson, O. T. 1984, No. 84–1531, 

p. 168; App. in Michigan v. Bladel, O. T. 1984, No. 84– 

1539, pp. 3a–4a. In neither case, however, was it clear 

that counsel had actually been appointed at the arraignment. Thus, the defendants’ requests for counsel were

significant as a matter of state law because they served as

evidence that the appointment of counsel had been effectuated even in the absence of proof that defense counsel 

had actual notice of the appointments.

Unlike Michigan, Louisiana does not require a defendant to make a request in order to receive court-appointed

counsel. Consequently, there is no reason to place constitutional significance on the fact that Montejo neither 

voiced a request for counsel nor affirmatively embraced 

that appointment post hoc. Certainly our decision in 

Jackson did not mandate such an odd rule. See ante, at 4 

(acknowledging that we had no occasion to decide in Jackson how its rule would apply in States that do not make 

appointment of counsel contingent on affirmative request).

If a defendant is entitled to protection from police-initiated 

interrogation under the Sixth Amendment when he

merely requests a lawyer, he is even more obviously entitled to such protection when he has secured a lawyer.

Indeed, we have already recognized as much. See Michigan v. Harvey, 494 U. S. 344, 352 (1990) (acknowledging 

that “once a defendant obtains or even requests counsel,” 

Jackson alters the waiver analysis); Patterson, 487 U. S., 
4 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

at 290, n. 3 (noting “as a matter of some significance” to

the constitutional analysis that defendant had “not retained, or accepted by appointment, a lawyer to represent 

him at the time he was questioned by authorities” (emphasis added)).1 Once an attorney-client relationship has

been established through the appointment or retention of

counsel, as a matter of federal law the method by which 

the relationship was created is irrelevant: The existence of 

a valid attorney-client relationship provides a defendant 

with the full constitutional protection afforded by the 

Sixth Amendment. 

II 

Today the Court correctly concludes that the Louisiana 

Supreme Court’s holding is “troublesome,” ante, at 4, 

“impractical,” ante, at 5, and “unsound,” ante, at 6. Instead of reversing the decision of the state court by simply

answering the question on which we granted certiorari in

a unanimous opinion, however, the majority has decided to

change the law. Acting on its own initiative, the majority 

overrules Jackson to correct a “theoretical and doctrinal” 

problem of its own imagining, see ante, at 6. A more 

careful reading of Jackson and the Sixth Amendment 

cases upon which it relied reveals that the rule announced 

in Jackson protects a fundamental right that the Court

now dishonors. 

The majority’s decision to overrule Jackson rests on its 

assumption that Jackson’s protective rule was intended to

“prevent police from badgering defendants into changing 

their minds about their rights,” ante, at 10; see also ante, 

—————— 

1 In Patterson v. Illinois, we further explained, “[o]nce an accused has

a lawyer,” “a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect.” 487 

U. S., at 290, n. 3 (citing Maine v. Moulton, 474 U. S. 159, 176 (1985)). 

“Indeed,” we emphasized, “the analysis changes markedly once an 

accused even requests the assistance of counsel.” 487 U. S., at 290, n. 3. 
Cite as: 556 U. S. ____ (2009) 5 

STEVENS, J., dissenting 

at 13, just as the rule adopted in Edwards v. Arizona, 451 

U. S. 477 (1981), was designed to prevent police from

coercing unindicted suspects into revoking their requests

for counsel at interrogation. Operating on that limited 

understanding of the purpose behind Jackson’s protective

rule, the Court concludes that Jackson provides no safeguard not already secured by this Court’s Fifth Amendment jurisprudence. See Miranda v. Arizona, 384 U. S. 

436 (1966) (requiring defendants to be admonished of their 

right to counsel prior to custodial interrogation); Edwards, 

451 U. S. 477 (prohibiting police-initiated interrogation 

following defendant’s invocation of the right to counsel). 

The majority’s analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests

the decision sought to protect. While it is true that the 

rule adopted in Jackson was patterned after the rule in 

Edwards, 451 U. S., at 484–485, the Jackson opinion does

not even mention the anti-badgering considerations that 

provide the basis for the Court’s decision today. Instead, 

Jackson relied primarily on cases discussing the broad 

protections guaranteed by the Sixth Amendment right to 

counsel—not its Fifth Amendment counterpart. Jackson 

emphasized that the purpose of the Sixth Amendment is

to “‘protec[t] the unaided layman at critical confrontations 

with his adversary,’” 475 U. S., at 631 (quoting United 

States v. Gouveia, 467 U. S. 180, 189 (1984)), by giving 

him “‘the right to rely on counsel as a ‘medium’ between 

him[self] and the State,’” 475 U. S., at 632 (quoting Maine 

v. Moulton, 474 U. S. 159, 176 (1985)). Underscoring that 

the commencement of criminal proceedings is a decisive

event that transforms a suspect into an accused within the

meaning of the Sixth Amendment, we concluded that 

arraigned defendants are entitled to “at least as much

protection” during interrogation as the Fifth Amendment

affords unindicted suspects. See, e.g., 475 U. S., at 632 

(“[T]he difference between the legal basis for the rule 
6 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

applied in Edwards and the Sixth Amendment claim 

asserted in these cases actually provides additional support for the application of the rule in these circumstances”

(emphasis added)). Thus, although the rules adopted in 

Edwards and Jackson are similar, Jackson did not rely on

the reasoning of Edwards but remained firmly rooted in 

the unique protections afforded to the attorney-client

relationship by the Sixth Amendment.2

 Once Jackson is placed in its proper Sixth Amendment 

context, the majority’s justifications for overruling the 

decision crumble. Ordinarily, this Court is hesitant to

disturb past precedent and will do so only when a rule has 

proven “outdated, ill-founded, unworkable, or otherwise

legitimately vulnerable to serious reconsideration.” 

Vasquez v. Hillery, 474 U. S. 254, 266 (1986). While stare 

decisis is not “an inexorable command,” we adhere to it as 

“the preferred course because it promotes the evenhanded, 

predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes 

to the actual and perceived integrity of the judicial proc-

—————— 

2The majority insists that protection from police badgering is the

only purpose the Jackson rule can plausibly serve. After all, it asks, 

from what other evil would the rule guard? See ante, at 9. There are 

two obvious answers. First, most narrowly, it protects the defendant 

from any police-initiated interrogation without notice to his counsel, not

just from “badgering” which is not necessarily a part of police questioning. Second, and of prime importance, it assures that any waiver of 

counsel will be valid. The assistance offered by counsel protects a

defendant from surrendering his rights with an insufficient appreciation of what those rights are and how the decision to respond to interrogation might advance or compromise his exercise of those rights

throughout the course of criminal proceedings. A lawyer can provide 

her client with advice regarding the legal and practical options available to him; the potential consequences, both good and bad, of choosing 

to discuss his case with police; the likely effect of such a conversation on 

the resolution of the charges against him; and an informed assessment

of the best course of action under the circumstances. Such assistance 

goes far beyond mere protection against police badgering. 
Cite as: 556 U. S. ____ (2009) 7 

STEVENS, J., dissenting 

ess.” Payne v. Tennessee, 501 U. S. 808, 827–828 (1991). 

Paying lip service to the rule of stare decisis, the majority acknowledges that the Court must consider many 

factors before taking the dramatic step of overruling a

past decision. See ante, at 12. Specifically, the majority

focuses on four considerations: the reasoning of the decision, the workability of the rule, the reliance interests at

stake, and the antiquity of the precedent. The Court 

exaggerates the considerations favoring reversal, however,

and gives short shrift to the valid considerations favoring

retention of the Jackson rule. 

First, and most central to the Court’s decision to overrule Jackson, is its assertion that Jackson’s “‘reasoning’”—which the Court defines as “the weighing of the

[protective] rule’s benefits against its costs,” ante, at 14— 

does not justify continued application of the rule it created. The balancing test the Court performs, however,

depends entirely on its misunderstanding of Jackson as a 

rule designed to prevent police badgering, rather than a

rule designed to safeguard a defendant’s right to rely on

the assistance of counsel.3 

Next, in order to reach the conclusion that the Jackson 

—————— 

3Even accepting the majority’s improper framing of Jackson’s foundation, the Court fails to show that the costs of the rule are more than 

negligible or differ from any other protection afforded by the right to

counsel. The majority assumes, without citing any empirical or even 

anecdotal support, that any marginal benefits of the Jackson rule are 

“dwarfed by its substantial costs,” which it describes as harm to “ ‘society’s compelling interest in finding, convicting, and punishing those 

who violate the law.’ ” Ante, at 14 (quoting Moran v. Burbine, 475 U. S. 

412, 426 (1986)). That assumption is highly dubious, particularly in

light of the fact that several amici with interest in law enforcement 

have conceded that the application of Jackson’s protective rule rarely 

impedes prosecution. See Supplemental Brief for Larry D. Thompson 

et al. as Amici Curiae 6 (hereinafter Thompson Supplemental Brief); 

Brief for United States as Amicus Curiae 12 (hereinafter United States 

Brief). 
8 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

rule is unworkable, the Court reframes the relevant inquiry, asking not whether the Jackson rule as applied for 

the past quarter century has proved easily administrable,

but instead whether the Louisiana Supreme Court’s

cramped interpretation of that rule is practically workable. The answer to that question, of course, is no. When 

framed more broadly, however, the evidence is overwhelming that Jackson’s simple, bright-line rule has done more

to advance effective law enforcement than to undermine it. 

In a supplemental brief submitted by lawyers and 

judges with extensive experience in law enforcement and 

prosecution, amici Larry D. Thompson et al. argue persuasively that Jackson’s bright-line rule has provided law 

enforcement officers with clear guidance, allowed prosecutors to quickly and easily assess whether confessions will 

be admissible in court, and assisted judges in determining 

whether a defendant’s Sixth Amendment rights have been

violated by police interrogation. See generally Thompson 

Supplemental Brief 6. While amici acknowledge that 

“Jackson reduces opportunities to interrogate defendants”

and “may require exclusion of evidence that could support 

a criminal conviction,” they maintain that “it is a rare case 

where this rule lets a guilty defendant go free.” Ibid. 

Notably, these representations are not contradicted by the

State of Louisiana or other amici, including the United

States. See United States Brief 12 (conceding that the 

Jackson rule has not “resulted in the suppression of significant numbers of statements in federal prosecutions in 

the past”).4 In short, there is substantial evidence sug-

—————— 

4Further supporting the workability of the Jackson rule is the fact 

that it aligns with the professional standards and norms that already

govern the behavior of police and prosecutors. Rules of Professional 

Conduct endorsed by the American Bar Association (ABA) and by every 

State Bar Association in the country prohibit prosecutors from making

direct contact with represented defendants in all but the most limited

of circumstances, see App. to Supplemental Brief for Public Defender 
Cite as: 556 U. S. ____ (2009) 9 

STEVENS, J., dissenting 

gesting that Jackson’s rule is not only workable, but also

desirable from the perspective of law enforcement.

Turning to the reliance interests at stake in the case,

the Court rejects the interests of criminal defendants with 

the flippant observation that any who are knowledgeable

enough to rely on Jackson are too savvy to need its protections, and casts aside the reliance interests of law enforcement on the ground that police and prosecutors remain free to employ the Jackson rule if it suits them. See 

ante, at 12. Again as a result of its mistaken understanding of the purpose behind Jackson’s protective rule, the 

Court fails to identify the real reliance interest at issue in

this case: the public’s interest in knowing that counsel,

once secured, may be reasonably relied upon as a medium

between the accused and the power of the State. That 

interest lies at the heart of the Sixth Amendment’s guarantee, and is surely worthy of greater consideration than 

it is given by today’s decision.

Finally, although the Court acknowledges that “antiquity” is a factor that counsels in favor of retaining precedent, it concludes that the fact Jackson is “only two decades old” cuts “in favor of abandoning” the rule it 

established. Ante, at 13. I would have thought that the 

—————— 

Service for the District of Columbia et al. as Amici Curiae 1a–15a 

(setting forth state rules governing contact with represented persons);

ABA Model Rule of Professional Conduct 4.2 (2008); 28 U. S. C.

§530B(a) (making state rules of professional conduct applicable to

federal attorneys), and generations of police officers have been trained 

to refrain from approaching represented defendants, both because 

Jackson requires it and because, absent direction from prosecutors, 

officers are reticent to interrogate represented defendants. See United 

States Brief 11–12; see also Thompson Supplemental Brief 13 (citing

Federal Bureau of Investigation, Legal Handbook for Special Agents 

§7–4.1(7) (2003)). Indeed, the United States concedes that a decision to 

overrule the case “likely w[ill] not significantly alter the manner in 

which federal law enforcement agents investigate indicted defendants.”

United States Brief 11–12. 
10 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

23-year existence of a simple bright-line rule would be a

factor that cuts in the other direction. 

Despite the fact that the rule established in Jackson 

remains relevant, well grounded in constitutional precedent, and easily administrable, the Court today rejects it 

sua sponte. Such a decision can only diminish the public’s 

confidence in the reliability and fairness of our system of 

justice.5 

III 

 Even if Jackson had never been decided, it would be 

clear that Montejo’s Sixth Amendment rights were violated. Today’s decision eliminates the rule that “any

waiver of Sixth Amendment rights given in a discussion 

initiated by police is presumed invalid” once a defendant 

has invoked his right to counsel. Harvey, 494 U. S., at 349 

(citing Jackson, 475 U. S., at 636). Nevertheless, under 

the undisputed facts of this case, there is no sound basis 

for concluding that Montejo made a knowing and valid 

waiver of his Sixth Amendment right to counsel before

acquiescing in police interrogation following his 72-hour 

hearing. Because police questioned Montejo without 

notice to, and outside the presence of, his lawyer, the 

—————— 

5 In his concurrence, JUSTICE ALITO assumes that my consideration of 

the rule of stare decisis in this case is at odds with the Court’s recent 

rejection of his reliance on that doctrine in his dissent in Arizona v. 

Gant, 556 U. S. ___ (2009). While I agree that the reasoning in his 

dissent supports my position in this case, I do not agree with his

characterization of our opinion in Gant. Contrary to his representation, 

the Court did not overrule our precedent in New York v. Belton, 453 

U. S. 454 (1981). Rather, we affirmed the narrow interpretation of 

Belton’s holding adopted by the Arizona Supreme Court, rejecting the

broader interpretation adopted by other lower courts that had been 

roundly criticized by judges and scholars alike. By contrast, in this 

case the Court flatly overrules Jackson—a rule that has drawn virtually no criticism—on its own initiative. The two cases are hardly 

comparable. If they were, and if JUSTICE ALITO meant what he said in 

Gant, I would expect him to join this opinion. 
Cite as: 556 U. S. ____ (2009) 11 

STEVENS, J., dissenting 

interrogation violated Montejo’s right to counsel even 

under pre-Jackson precedent.

 Our pre-Jackson case law makes clear that “the Sixth 

Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s 

right to have counsel present in a confrontation between

the accused and a state agent.” Moulton, 474 U. S., at 

176. The Sixth Amendment entitles indicted defendants 

to have counsel notified of and present during critical

confrontations with the state throughout the pretrial 

process. Given the realities of modern criminal prosecution, the critical proceedings at which counsel’s assistance 

is required more and more often occur outside the courtroom in pretrial proceedings “where the results might well 

settle the accused’s fate and reduce the trial itself to a 

mere formality.” United States v. Wade, 388 U. S. 218, 

224 (1967).

In Wade, for instance, we held that because a postindictment lineup conducted for identification purposes is 

a critical stage of the criminal proceedings, a defendant

and his counsel are constitutionally entitled to notice of 

the impending lineup. Accordingly, counsel’s presence is a

“requisite to conduct of the lineup, absent an intelligent 

waiver.” Id., at 237 (internal quotation marks omitted).

The same reasoning applies to police decisions to interrogate represented defendants. For if the Sixth Amendment 

entitles an accused to such robust protection during a

lineup, surely it entitles him to such protection during a 

custodial interrogation, when the stakes are as high or 

higher. Cf. Spano v. New York, 360 U. S. 315, 326 (1959) 

(Douglas, J., concurring) (“[W]hat use is a defendant’s

right to effective counsel at every stage of a criminal case

if, while he is held awaiting trial, he can be questioned in 

the absence of counsel until he confesses?”). 

The Court avoids confronting the serious Sixth Amendment concerns raised by the police interrogation in this 
12 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

case by assuming that Montejo validly waived his Sixth

Amendment rights before submitting to interrogation.6 It 

does so by summarily concluding that “doctrines ensuring

voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment 

waiver,” ante, at 15–16; thus, because Montejo was given 

Miranda warnings prior to interrogation, his waiver was 

presumptively valid. Ironically, while the Court faults 

Jackson for blurring the line between this Court’s Fifth 

and Sixth Amendment jurisprudence, it commits the same

error by assuming that the Miranda warnings given in

this case, designed purely to safeguard the Fifth Amendment right against self-incrimination, were somehow 

adequate to protect Montejo’s more robust Sixth Amendment right to counsel. 

The majority’s cursory treatment of the waiver question

rests entirely on the dubious decision in Patterson, in 

which we addressed whether, by providing Miranda warnings, police had adequately advised an indicted but unrepresented defendant of his Sixth Amendment right to counsel. The majority held that “[a]s a general matter . . . an 

accused who is admonished with the warnings prescribed 

. . . in Miranda, . . . has been sufficiently apprised of the 

nature of his Sixth Amendment rights, and of the consequences of abandoning those rights.” 487 U. S., at 296. 

The Court recognized, however, that “because the Sixth

Amendment’s protection of the attorney-client relationship 

—————— 

6The majority leaves open the possibility that, on remand, Montejo 

may argue that his waiver was invalid because police falsely told him

he had not been appointed counsel. See ante, at 18. While such police

deception would obviously invalidate any otherwise valid waiver of 

Montejo’s Sixth Amendment rights, Montejo has a strong argument

that, given his status as a represented criminal defendant, the Miranda 

warnings given to him by police were insufficient to permit him to

make a knowing waiver of his Sixth Amendment rights even absent 

police deception. 
Cite as: 556 U. S. ____ (2009) 13 

STEVENS, J., dissenting 

. . . extends beyond Miranda’s protection of the Fifth 

Amendment right to counsel, . . . there will be cases where 

a waiver which would be valid under Miranda will not 

suffice for Sixth Amendment purposes.” Id., at 297, n. 9. 

This is such a case. 

As I observed in Patterson, the conclusion that Miranda 

warnings ordinarily provide a sufficient basis for a knowing waiver of the right to counsel rests on the questionable 

assumption that those warnings make clear to defendants 

the assistance a lawyer can render during post-indictment 

interrogation. See 487 U. S., at 307 (dissenting opinion). 

Because Miranda warnings do not hint at the ways in

which a lawyer might assist her client during conversations with the police, I remain convinced that the warnings prescribed in Miranda,7 while sufficient to apprise a

defendant of his Fifth Amendment right to remain silent,

are inadequate to inform an unrepresented, indicted defendant of his Sixth Amendment right to have a lawyer

present at all critical stages of a criminal prosecution. The 

inadequacy of those warnings is even more obvious in the

case of a represented defendant. While it can be argued

that informing an indicted but unrepresented defendant of 

his right to counsel at least alerts him to the fact that he is 

entitled to obtain something he does not already possess,

providing that same warning to a defendant who has 

already secured counsel is more likely to confound than

enlighten.8 By glibly assuming that that the Miranda 

—————— 

7Under Miranda, a suspect must be “warned prior to any questioning

that he has the right to remain silent, that anything he says may be

used against him in court of law, that he has the right to the presence 

of any attorney, and that if he cannot afford an attorney, one will be

appointed for him prior to any questioning if he so desires.” 384 U. S., 

at 479. 8With respect to vulnerable defendants, such as juveniles and those

with mental impairments of various kinds, amici National Association 

of Criminal Defense Lawyers et al. assert that “[o]verruling Jackson 

would be particularly detrimental . . . because of the confusing instruc-
14 MONTEJO v. LOUISIANA 

STEVENS, J., dissenting 

warnings given in this case were sufficient to ensure

Montejo’s waiver was both knowing and voluntary, the

Court conveniently avoids any comment on the actual 

advice Montejo received, which did not adequately inform

him of his relevant Sixth Amendment rights or alert him 

to the possible consequences of waiving those rights. 

A defendant’s decision to forgo counsel’s assistance and 

speak openly with police is a momentous one. Given the 

high stakes of making such a choice and the potential 

value of counsel’s advice and mediation at that critical 

stage of the criminal proceedings, it is imperative that a 

defendant possess “a full awareness of both the nature of 

the right being abandoned and the consequences of the 

decision to abandon it,” Moran v. Burbine, 475 U. S. 412, 

421 (1986), before his waiver is deemed valid. See Iowa v. 

Tovar, 541 U. S. 77, 81 (2004); Johnson v. Zerbst, 304 

U. S. 458, 464 (1938). Because the administration of 

Miranda warnings was insufficient to ensure Montejo 

understood the Sixth Amendment right he was being

asked to surrender, the record in this case provides no 

basis for concluding that Montejo validly waived his right 

to counsel, even in the absence of Jackson’s enhanced 

protections. 

IV 

The Court’s decision to overrule Jackson is unwarranted. Not only does it rests on a flawed doctrinal prem-

—————— 

tions regarding counsel that they would receive. At the initial hearing, 

they would likely learn that an attorney was being appointed for them, 

In a later custodial interrogation, however, they would be informed in

the traditional manner of ‘their right to counsel’ and right to have

counsel ‘appointed’ if they are indigent, notwithstanding that counsel 

had already been appointed in open court. These conflicting statements 

would be confusing to anyone, but would be especially baffling to

defendants with mental disabilities or other impairments.” Supplemental Brief for National Association of Criminal Defense Lawyers

et al. as Amici Curiae 7–8. 
Cite as: 556 U. S. ____ (2009) 15 

STEVENS, J., dissenting 

ise, but the dubious benefits it hopes to achieve are far 

outweighed by the damage it does to the rule of law and 

the integrity of the Sixth Amendment right to counsel. 

Moreover, even apart from the protections afforded by 

Jackson, the police interrogation in this case violated 

Jesse Montejo’s Sixth Amendment right to counsel. 

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 556 U. S. ____ (2009) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 07–1529 

JESSE JAY MONTEJO, PETITIONER v. 

LOUISIANA 

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

LOUISIANA

[May 26, 2009] 

JUSTICE BREYER, dissenting. 

I join JUSTICE STEVENS’ dissent except for footnote 5. 

Although the principles of stare decisis are not inflexible, I 

believe they bind the Court here. I reached a similar 

conclusion in Arizona v. Gant, 556 U. S. ___, ___–___ 

(2009) (slip op., at 1–2) (BREYER, J., dissenting), and in 

several other recent cases. See, e.g., Leegin Creative 

Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, ___– 

___ (2007) (slip op., at 17–19) (BREYER, J., dissenting); 

Parents Involved in Community Schools v. Seattle School 

Dist. No. 1, 551 U. S. 701, ___–___ (2007) (slip op., at 65– 

66) (BREYER, J., dissenting); Federal Election Comm’n v. 

Wisconsin Right to Life, Inc., 551 U. S. 449, ___–___ (2007) 

(slip op., at 31–32) (SOUTER, J., dissenting); Bowles v. 

Russell, 551 U. S. 205, 219–220 (2007) (SOUTER, J., dissenting); Gonzales v. Carhart, 550 U. S. 124, 190–191 

(2007) (GINSBURG, J., dissenting); District of Columbia v. 

Heller, 554 U. S. ___, ___–___ (2008) (slip op. at 41–45) 

(STEVENS, J., dissenting).