1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O F THE UNI TED STATES

Sy llabu s MONTEJO v . LOUISIANA
CERTIORARI TO THE SUPREME COUR T OF LOUISIANA No. 07–1 52 9. Ar g u ed Janu a r y13, 2009 —Dec ided M ay26, 2009 At a preli m ina r y hearing requ ired byLouisiana law, petitioner Montejo

was c h ar g e d with fir s t-deg r ee mur d er , and the c o ur t order e d the ap

pointment of c o unsel. Laterthat day, th e police read Montejo his rights under Miran d av. Arizona , 384 U. S. 43 6, an d h e ag r eed to g o alongon a tr ip to loc a te the mur d er weapon. During the excursion, he wrote an inculpatory lette r of ap ology to the victim’s w i dow. Upon r e tur n ing , he finallymethi s c o ur t-appoin ted a ttor n ey . Attr ial, his letterwas ad mittedov erdefense objec t io n, and he was c o nv ic ted and s e ntenced to dea t h. Affirming, th e State Supreme Court rejected hi s c l aim that the lettershould hav e been sup p ressed under the rule of Michi ganv. J a ck son , 475 U

. S. 625, wh ic hforb ids po lic e to in i t ia t e inter r o g a tion of a c r i minal d e fendant onc e he has inv o ked his r i gh t to c o u n s el at an ar r a ig n m en t orsimila r proceeding. The co urt reasoned that Jack son ’s prophylactic protection is not tr ig g e r e d unless the de

fendant has a c tuallyr e quested ala wyer or has otherwise asserte d his S i xth Amendment right to couns el; and that, since Montejo stoo d mute at his hear ingwhile the ju dge ordered the appointment o f couns el, he ha d ma de no s u c hreq u es t or a s s e rtion. Held: 1. Mic h iganv. Jack sonsh ou l dbe an d n o w i s ov er ru led. Pp. 3–18.

(a) The State Supreme Co ur t’ s inter p r e tation of Jack so n would lead to pract i cal problems. Requir ing an initial “invocation” of the r i gh t to c o uns el in or der to tr ig g e rthe Ja ck sonpresum ption, as the c o u r t below di d, migh t wor kinS t ate s th atr e qu ir e anin dig e n tdefen

dan tfor m al ly to r e qu est c o u n sel befor e anappoin t m en t is m a de, bu t not in mor ethan half the Sta t es , which appoint couns el without re

qu est fr om th e defen d an t. Pp. 3–6. (b ) On theoth e r ha nd, Mo ntej o’ s solution is untenable as a theo

ret i ca l a n d doct rina l ma t t e r. Elim ina t ing the invoca t i on req u irem ent2 M O NTEJO v. LOUISIANA Sy llabu s entirely woulddepa rt funda m en tally from the rationale of Jack son, whose presumption was created by an alo gyto a s i mil a rpr oph y lac t ic rule establ ish e d in Edwards v. Arizona , 4 51 U. S. 47 7, t o pr otec t th e Fifth Amend m ent-based M i randar i ght. Both Edwardsan d Jack son ar e meant to pr ev ent polic e fr om bad geri ng defe nda n ts into cha n ging theirminds about the r i ght to c o unse l once they haveinvoked it, but adefenda n t who neve r a s ked for couns el ha s not yet ma de up hi s min dinth e first in st an c e . Pp. 6–13. (c) Stare de cis i sdoes not r e quire the Co urt to expand signifi

ca nt ly t h e holding of aprior decis i on in or der t o cure it s pra c t i ca l de

ficiencies

. To t h e cont ra ry, t h e fa ct t h a t adecis i on has proved “ un workable” is a traditiona l ground for overruling i t

. Paynev. Tenn es se e , 501 U. S. 8 08, 8 27. Bey o nd w o rkability , the relev a nt fac

tors include the preceden t’ s antiquity , the r e lianc e inter e sts a tst ake , and whether the decision was well reaso n ed. P e arso nv. Callaha n , 555 U. S. ___, ___. The first tw o cut in fa vor of jettison i ng Jack son : the opinion is only two deca des old, and el iminat ing it would not up

s e t expectations , s i nce a n y crimina l defendant le arned enough to or

der his affairs based on Jack son ’ s r u le would also be per f ec tlyc a pable of interacting with the police on hi s own. As for the strength of Jack

son ’s rea s onin g, whe nt h is Courtcre ates a prophylactic rule to pro

tec ta c o nstitutional r i gh t, th e r e le va nt“r ea s o ning” is the weighingof th e r u le’ s benefits ag ain s t i t s c o sts. Jack son’ s mar gin alben e fits ar e dwar fed byits su bst a n t ia l c o sts. Ev enwi th ou t Jack son , few badger

ing-inducedwaivers, if any, woul d be ad mitted a ttr ia l bec a use the Court ha s ta ken s u b s ta ntia l other, o v erla pping mea s ures to exclude them. Under Miran d a , anysuspec t subj ec t to c u stodia l i n ter r o g a tion mu st be a dv i s e d of h i s r i gh tto h av e a lawy erpr esen t. 384 U. S., a t 474. Under Edwards , on c e suc ha defen d an t “h as in v o ked h i s [Miranda] r i gh t,” in ter r o g a tionmu st stop

. 45 1 U. S., at 484. An d under Mi nni c kv. Missi ssip p i , 498 U. S. 146, n o su bse q u e n tin ter r o g a tion mayta ke plac e unt il counsel is present. Id., at153. Th es e three layers o f prophylaxis are suffi cient. On the othe r side of the equation, the principal cost of applying Jack son ’s rule is t h a tcrim e s ca n go uns olv e d a n d crimina ls unpunis h ed when un coe rced confes

sions are excl uded and whe noffice rs are deterred from even trying to obtain confessions. The Cour t c o nc ludes that the Jackson rule does not “pay its w a y , ” United Statesv. Leon , 468 U. S. 89 7, 9 07– 90 8, n

. 6, a n d thus the c a s e sh ou ld be ov er ru led. Pp. 13–1 8.

2

. Montej o s h ould nonetheles s b e given an opportunityto contend that his letter of apology sh ouldhave been suppressed under the Ed

wards ru le

. He unde r standably did not pursuean Ed w a r ds objec

tion, because Jack sono ffered broader protecti ons, but the decision h e r e c h an g e s th e leg a l lan d sc ape. Pp. 18–19.3 Cite as: 55 6 U

. S. ____ (2009) Sy llabu s 06– 18 07 (La.), 974 So. 2d 12 38, v a c a ted an d r e man d ed.

S CALI A , J., delivered the opinion of the Cour t, in whic h R OBERTS , C. J., and K E NNEDY , T HOMAS , and ALI TO , JJ., joined. ALITO , J., filed a conc urri ng opi n ion, in w h ichK ENNEDY , J., joined. S TEVENS , J., filed a dissenting opi n ion, in which S OUTER an d G IN SB U R G , JJ., joined, and i n which B REYER , J., joined, except for n. 5. B REYER , J., fil e d a di ssent ing opinion._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt

NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O F THE UNI TED STATES

No. 07–1 52 9
JESSE JAY MONT EJO, PETITIONER v. LOUISIANA
ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF LOUISIANA [M ay26, 2009 ] J USTICE S CALIA delivered the opini o n of the Co urt. We consider in this ca se the scop e and continued viabil

ity of the r u le ann oun c ed by this Court in Michiganv. Jackson , 475 U. S. 625 (1986), forbidding police to initiate interrogation of a cri minal defendant once he has re

quested counsel at an a rraignment or similar proceeding. I Petitioner Jesse Mont ejo was arrested on Se ptember 6, 2002, in connection with the robbery and murder of Lewis Ferrari, wh o had beenfound dead in his own home on e day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montej o, who was a k n own associate of Moo r e. Montejo waived his rights under Mirandav. Arizona , 384 U. S. 436 (1966), a n d was interrogated at the sheriff’s office by police detectives th rough the late afternoon and evening of September 6 and the early morning of Septem

ber 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that h e2 M O NTEJO v. LOUISIANA Opinion of theCourt had only driven Moore to the victim’s home, and ulti

mately admitting that he had s h ot and killed Ferrari in the course of a botche dburgla r y. These police interrog a tions were videotaped. On September 10, Montejo was b r ought before a judge for what is known in Louisiana as a “72-hour hearing”—a preliminary hearing required under state law. 1 Al t h o u gh the proceedings were not transcr ibed, the minute record indicates what transpi red: “The defendant being charged with First Degree Murder, Cou rt ordered N[o] Bond set in this matter. Further, Court or der e d the Office of Indigent Defender be appointed to repr esent the defendant.” App. to Pet. for Cert. 63a. Later that same day, two police detectives visited Mon

tejo back a tthe prison and requested that h e accompan y them on an excursion t o locate the murder weapon (which Montejo had earlier indicated he had thro wninto a lake ). After some back-and-forth, the s ubstance of which re

mains in d i spute, Montejo was again read his Mirand a rights and agreed to g o along; during the e x cursion, he wrote an inculpatoryletter of apology to the victim’s widow. On ly upon the i r return did Montejo f i nally meet his court-ap pointed att o rney, who was quite u p set that th e detectives had interrog a ted his client in his absence. At trial, the letter of apol ogy was admitted over defense objection. The juryco nvicted Mo ntejo of first-degree m u r der, 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 relevanthere, the court reject ed Montejo’s argument that under the rule of Jackson , supra , the letter should

——————

1 “The sheriff or law enforcement offi cer havi ng cus t ody of a na rres t ed person shall b r ing him promptly, an d in a n y ca s e wit h in s e vent y-t w o hour s fr om the time of the ar r e st, before a judge for the purpose o f a ppointment of couns el.” La . Code Crim. Proc. Ann. , Art. 230.1(A) (West Su pp. 2 009).3 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt have been suppressed. 974 So. 2d, at 1261. J a cksonheld that “if police initiate interrogation after a defendant’s assertion, a tan arraignment or si milar proceeding, of hi s right to co unsel, any waiver of the defendant’s right t o counsel forthat police-initiated i n terrogatio nis invalid .” 475 U. S., at 636. Citing a de cision of the United States Court of Appeals for the Fift h Circuit, Montoya v. Collins , 9 55 F. 2d 2 7 9 (1992), the LouisianaSupreme Court reas oned that the prophylacti c prote ction of Jack sonis not triggered unless and until th e defendant has actuall yrequested a lawyer or has otherwise asserted his Sixt h Amendment right t o counsel. 9 74 So. 2d, at 1260–1261, and n. 68. Because Montejo si mply stood mute ath i s 72-hour hearing wh ile the judge ordered the appointment of counsel, he h a d made no su ch request or assertion

. So the proper inquiry, the court ruled, was only whether he had knowingl y , intelligentl y, and voluntarily waived his right to have counsel present duringthe interaction with the police. Id. , at 1261. And because Montejo ha d been readhis Miranda rights and agreed to waive them, the Court answered th at question inthe affirm ative, 974 So. 2d, at 1 262, and u p held the conviction. We granted certiorari. 554 U. S. ___ (2008). II Montejo and his amiciraise a number of pragmatic objections to the Louisiana Supreme Court’s interpreta

tion of Jackson

. We agree that the approach tak e n below would lead either to an unworka ble standard, or to arb i

trary and anomalous distinctions between defendants in different States. Neithe r would be acceptable. Under the rule adopted by the Louisiana Supreme Court, a criminal defendant mu st request counsel, or otherwise “assert” his Sixth Am endment right at the preliminary hearing, before the Jacksonprotections are4 M O NTEJO v. LOUISIANA Opinion of theCourt triggered. I f he does so, the police may not initiate further interrogation in the absence of counsel. But if the courton its own appoints counsel, with the defendant ta king no affirmative action to invoke his right to c o unsel, then police are free to initiate further interrogations provided that the yf i rst obtain an otherwi s e valid waiver byth e defendant of his right to have counsel present. This rule would apply well enough in Sta t es that require the indigent defendant formallyto request counsel befor e any appoin tment is m a de, which usually occurs after th e court has i n formed him that he will receive counsel if he asks for it. That is how the system works in M i chigan, for example, Mich. Ct. Rule 6.005(A) (2009), whose scheme produced t h e factual backg round for this Court’s decision in Michigan v. Jackson

. Jacks on, like all other repre

sented indigent defendants in the State, had requested counsel in a ccordance with the applicable state law. But many States follow other pr actices. In some two dozen, the appointment of counsel is autom atic upon a finding of indigency, e.g. , Kan. Stat. Ann. §22–4503(c) (2007); and in a num ber of others, appointment can be made either upon the defendant’s request or sua sponteby the court, e.g. , Del. Code Ann., Tit. 29, §4602(a) (2003). See App. to Brief for National Legal Aid & De fender Assn

. et al. as Amici Curiae1a–21a. Nothing in our Jackson opinion indicates whether we were then aware that not all States req u ire that a defendant affirmati v ely request counsel bef o re one is appointed; and of course we had no occasion there to decide how the rule we ann ounced would apply to the s e other States. The Louisiana Supreme Court’s answer to that unre

solved ques t ion is troub lesome. T h e central distinction it draws—bet w een defendants who “assert” t h eir right to counsel an d those who do no t—is exceedingly hazy when applied to States that appoint counsel abs ent request from the defendant. Ho w to catego rize adefendant who merely5 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt asks, prior to appointment, whether he will be appointed counsel? Or who inqui res, after the fact, wh ether he has been? Wha ttreatment for on e who thanks the court after the appointment is made? Andif the court a s ks a defen

dant whether he would object to appointment, will a quick shake of his head count as an asser t ion of his r i ght? To the exte nt that the Louisiana Supreme Court’s rule also permit s a defendant to trigge r Jackson through th e “acceptan ce” of counsel, that notion is even more mysteri

ous: H o w does one affi rmatively accept counsel appointed by court order? Anindigent defendant has no right to choose hi s counsel, Un i t edS t a t e sv. Gonzalez-Lopez , 548 U. S. 140, 151 (2006), so it is ha rd to imagine what his “acceptan ce” would look like, bey o nd the pa ssive silenc e 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-cas e basis whether a defendant has somehow invoked his right to counsel, lookin g to his con

duct at th e prelimin ary hearing—his statements an d gestures—and the tot a lity of the circumst ances. Or , courts migh t simply determine as a categorical matter that defendants in these States—over half of those in th e Union—simply have no opportunity to assert their right to counsel at the hearing and are therefore out o f luck

. Neither approach is desirable. The former would be particularlyimpractica l in light of the fact that, as amici describe, preliminary hearings are often rushed, and are frequently not recorded or tr anscr ibed. Brief for National Legal Aid & Defender Assn. et al. 25–30. The sheer vol

ume of indigent defendants, see id

. , at 29, would render the monitoring of eac hparticula r defendant ’s reaction to the appointment of counsel almostimpossible. And some

times the d e fendant is not evenpresent. E.g. , La. Code Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009) (allow

-6 M O NTEJO v. LOUISIANA Opinion of theCourt 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 th ey could approach a par

ticular defendant; and for a co urt to adjudicate that ques

tion ex pos twould be a fact-intensive and burdensome task, even if monitoring we re po ssible and transcription available. Because “clarity of .

. . command” and “cer

tainty of .

. . application” are crucial in rules that govern law enforcement, Minnickv. Mi s s issip p i , 49 8 U. S. 146 , 151 (1990), this would be an unfortunate wa y to proceed. See also Moranv. Bu rb ine , 475 U. S. 412, 425–426 (1986). The second possible course fa res no better, for it would achieve clarity and certainty on ly at the expense of intro

ducing arbi trary distin ctions: Defendants in States tha t automatically appoint counsel would have no opportunity to invoke their rights and trig g er Jackson , while those i n other State s , effectively instru c t ed by the court to request counsel, would be lu cky winners. That sort of hollow formalism is out of pl ace in a do ctrine thatpurpor ts t o serve as a practical safeguard for defendants’ rights. III But if the LouisianaSupreme Court’s application of Jacksonis unsound as a practicalmatter, then Montejo’s solution is untenable a s a theoretical and doctrinal matter. Under his approach, once a defendant is re pres entedby counsel, police may not initiate any further in terrogation. Such arule would be e n tirely unte t hered from the origina l rationale of Jackson

. A It is worth emphasizin g first what is notin dispute or at stake here. Under our precede n ts, once the adversar y judicial process has be en initiated , the Sixth Amendment guarantees a defendant the right to have counsel presen t at all “c ritic a l” stages o f the crimin a l proceedings. Uni t ed7 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt Sta t esv. Wade , 388 U. S. 218, 227–228 (1967); Powell v. Alabama , 2 87 U. S. 45 , 57 (1932). Interroga tion by the State is such a stage. Massiah v. UnitedStates , 377 U. S. 201, 204–2 05 (1964); s ee als o United S t atesv. Henry , 4 47 U. S. 264, 274 (1980). Our precedents also place beyond doubt tha tthe Si xth Amendment right to counsel maybe waived by a defen

dant, so long as relin quishment of the right is voluntary, knowing, and intelligent. Patt ersonv. Illinois , 487 U. S. 285, 292, n

. 4 (1988); Bre w er v. William s , 430 U. S. 387, 404 (1977); Johnsonv. Zerbs t , 304 U. S. 458, 464 (1938). The defendant may waive the right whether or not he i s already represented by counsel; the decision to waive need not itself b ecounseled. Michiganv. Harvey , 49 4 U. S. 344, 352–353 (1 990). An d when a defendant is read h i s Mirandari ghts (whi chinclude the right to have counsel present during interrogation) and agrees to waive those rights, tha ttypicallydoes the trick, eventhough the Miranda ri ghts pu rpor tedly have their source in the Fif t h Amendment: “As a general matter

. . . an accu sed who is admon

ished with the warnin gs prescrib e d by this Court in Miranda

. . . has be en sufficiently apprised of the na

ture of his Sixth Amen dment righ ts, and of the conse

quences of abandoning those rights, so that his waiver on this basi s will be considered a knowing and intelli

gent one.” Patterson , supra , at 29 6. The onlyquestion rais ed by this case, and th e only one addressed by the Jacksonrule, is whether courts mu s t presum ethat such a waiver is invalid under certain cir

cumstances. 475 U. S. , at 630, 6 33. We created such a presumption in Jacksonby analogy to a similar prophyla c tic rule est ablished to protect the Fifth Amendment based Mirandari ght to hav e counsel present at any custodial interrogation. Edwardsv. Ar izon a , 451 U. S. 477 (1981),8 M O NTEJO v. LOUISIANA Opinion of theCourt decided tha tonce “an accuse d h a s invoked his right to have counsel present during cust odial interrogation .

. . [he] is not subject to further interrogation by the authori

ties until c o unsel ha s been mad e available, ” unless h e initiates the contact. Id. , at 484–485. The Edwa r dsrule is “designed to prevent police from badgering a defendant into waiving his previously as

serted Mirandarights,” Harv ey , supra , at 350. It does this by presuming his postassertion statements to be involun

tary, “evenwhere the suspect executes a waiver and his statements would be considered voluntary under tradi

tional stand ards.” McNeil v. Wis c onsin , 501 U. S. 171, 17 7 (1991). This prophylactic rule thu s “protect[s ] a suspect’s voluntary choice not to speakoutside his lawyer’s pres

ence.” Texa sv. Cobb , 5 32 U. S. 162, 175 (200 1) (K E NNED Y , J., concurri ng). Jacksonrepresented a “wholesale importation of the Edwa rdsru le into the Sixth Amen dment.” Cobb , supra , a t 175. The JacksonCourt decided t hat a request for counsel at an arrai g nment should be treated as an invocation of the Sixth Amendment righ t to c o unsel “at every c r itic al stage of the prosecution,” 475 U. S., at 633, despite doub t that defendants “actual ly inten[ d] t h eir request for counsel to encompass representation duri ng any fu rt her question

ing,” id. , at 632–633, because doubts must be “resolved in favor of pr otecting th e constitutional claim,” id. , at 633. Citing Ed wards , the Court held that any subsequent waiver wo uld thus be “insufficient to j u stify police

initiated int e rrogation.” 475 U. S., at 635. Inother words , we presume such waivers involuntary “based on the sup

position that suspects who assert their rightt o counsel are unlikely to waive tha trigh t voluntarily” i nsubsequent interactions with police. Harv ey , su pra , at 350. The dissent presents us with a revisionist vi ew of Jack

son. The defendants’ requestfor counsel, it contends, was important only because itproved that couns el had been9 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt appointed

. Such a non sequitur (nowhere allu ded to in the case) hardly needs rebuttal. Proceeding from this fanciful premise, the dissentclaims that the decision actually established“a rule designed to s a feguard adefendant’s right to rely on the assistance of counsel,” post , at 6– 7 (opinion of S TEVENS , J.), not one “designed to prevent police badgering,” post , at 7. To safeguard the right to assistance of counsel from wha t ? From a k n owing and voluntary waiver by the defenda n t himself?Unless t h e 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 Sta t es ex rel. McCa n n , 317 U. S. 269, 280 (1942)—a view with zero support in reason, h i story or case law—the answer must be: from p o lice pressu re, i.e. , badg

ering. Th e antibadgering ratio nale is the only wa y to mak e sense of Jackson ’s repeated citations of Edwa r ds , and the only way to reconcile the opinion with our waive r jurispruden c e. 2 B With this u n derstanding of what Jacksons t an d s f o rand whence it c a me, it should be clear that Montej o’s interpre

tation of that decision—that no re pres e n t e ddefendant can ever be approached by the State and asked to consent to interrogation—is off the mark. When a court appoint s counsel f o r an indigen tdefendant in the abs ence of any request on his part, th ere is no b a sis for a presumption

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2 Th e dissen tr e spon ds th at J a ck sonalso en su r e s th at th e defen d an t’ s couns el receiv es not i ce of a n y int e rr oga t ion, post , at 6, n . 2. But notic e to what end? S u r e ly no t in or derto pr otect some c o nstit u t i ona lrightt o receive co uns el’s a dvice reg a rding wa iverof t h e rightt o have cou n s e l pres ent. Contr a ry to the diss ent’ s intima tio n s, neitherthe advice nor the presence of counsel is nee d ed in order to effectuate a knowing waiver of theSixth Amendm entright

. Ourc a s e s ma ke clea r that the Mirandawaivers typically suffi ce; indeed, eve nan un repre sent e d defend a n t ca n wa ive his right to co uns el. S ee supr a , at 7.10 M O NTEJO v. LOUISIANA Opinion of theCourt that any subsequent waiver of the right to co unsel will b e involuntary. There is no “ initial election” to exercise th e right, Pa tte rson , 487 U. S., at 291, that must be preserved through a prophylacti c rule against later waivers. No reason exis ts to assume that a defendant like Montejo, who has done nothing at allto express his in tentions with respect to his Sixth Amendm ent rights, would not be perfectly a m enable to speaking with the police without having cou n sel present. And no reason exists to p r ohibit the police from inquiring. Ed wardsand Jacksonare meant to prevent police frombadgering defendants into changing their minds about their rights, but a defendant who never asked for co unsel has n o t yet made up his mind in the first instance. The dissent ’s argumentto the cont rary rests on a flawed a fortiori:“ I f a defendant is entitled to protection fro m police-initiated interrog a tion under the Sixth Amendment when he merely requestsa lawye r , he is even more obvi

ously entitled to such protection when he has secu reda lawyer.” Pos t , at 3. The question in Jackson , however, was not whether respondents were entitled to counsel (they unquestionably were), but“whether respondents validly wai v ed their ri ght to coun sel,” 475 U. S., at 630; and even if it is reasonable to presume from adefendant’s requestfor counsel that any subsequent waiver of the right was coerced, no such presumption can seriously be ent e r tained when a lawyer was merely “secured” o nthe defen

dant’s behalf, by the State itself, a s a matter of course. Of course, reading the dissent’s analysis, one w o uld have no idea that Montejo execut ed any waiver at all. In practice, Montejo’s rule would prevent police-initiated interrogation entirely once the S i xth Amendment righ t attaches, at least in those States that appoint counsel promptly without re quest from the defendant. As the dissent in Jacksonpointed out, with no expressed dis

agreement from the majority, the opinion “most assuredl y11 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt [did] nothold that the Edwa rds p e r serule prohibiting al l police-initia ted interrogations applies from the momen t the defend ant’s SixthAmendm ent right to counsel at

taches, wit hor withou t a request for counsel by the defen

dant.” 475 U. S., at 6 40 (opinionof Rehnquist, J.). Tha t would have constituted a “sho ckingly dramati crestructu r ing of the balance this Court has traditi onally 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 Profession al Conduct (which nearly all States have adopted into law in whole or in part) mandate that “a lawyer shall not com

municate about the subject of [a] representation with a party the lawyer kno w s to be r e presented by another lawyer in the matter, unless the l a wyer 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 off i cers la wyers. Montej o’s propose d rule is b o th broader and narrower than the Model Rule. Broader, because Montejo would apply it to a ll agents of the State, i n cluding th e detectives who interr ogated him , while the ethical rule governs o n ly lawyers. And nar

rower, because he agrees that if a defendant initiates contact with the police, they may talkfreely—whereas a lawyer coul d be sancti oned fo r interviewing arepresented partyeven if that par t y “initiates” the communication and consents to the interview. Model Rule 4.2, Comment 3. Montejo contends thatour decisions support his inter

pretation of the Jacksonrule. We think not. Many of the cases he cites concern the substantive scope of the Sixth Amendment—e.g. , wh ether a particular interaction wit h the Sta t e c o nstitutes a “c ritical” st age at whic h counsel is entitled to be present— notthe validity of a Sixth Amend

-12 M O NTEJO v. LOUISIANA Opinion of theCourt ment waiver. See Mainev. Moulton , 474 U. S. 159 (1985); Henry , 447 U. S. 264; Massiah , 377 U. S. 2 01; 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 Jacksonhold

ing 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. B u t elsewhere i nthe same opinion, we explained that Jack son applies “after a defendant requests assistance of counsel, ” 494 U. S., at 349; “wh e n a suspect cha r ged with a crime requests counsel outside the cont ext of inter r ogation,” id. , at 350; and to “suspects who a ssert their right to counsel,” ibid. The a ccuracy of the “obtains ” language is thus ques

tionable. Anywa y , since Harv eyheld that evidence ob

tained in violation of t h e Jackson rule couldbe admitted to impeach the defendant’s trial testimony, 494 U. S., at 346, the Co urt’s varying descriptions of when the rule wa s violated we re dicta. T h e dictum f r om the ot her decision, Patterson , supra, at 29 0, n. 3, is no more probative. 3 The upshot is that even on Jackson ’s ownterms, it

——————

3 In the c i ted pass ag e, the Cour t no ted th at “[o]n c e anaccu sed h a s a lawy er , a disti n c tset of c o nstitution al safe g u ar ds aimed at pr eserv i n g the sanc tityof attor n ey -c lient r e lationship takes effec t .” Patterso n , 487 U. S., at 29 0, n

. 3. To su ppor tth at pr opo s ition , th e Co u r t c i ted Maine v. Mo ulton , 474 U. S. 15 9 ( 198 5), wh ic h was n o t a c a s e abou twaiv e r . The passage went on to observe that “the analysi s changes markedl y once an accused even req ue ststhe assi stance of counsel ,” 487 U. S., at 290, n

. 3 (em p h a sis inor igin al), th is ti me c i tin g Jac k son . Montej o infers from the “even req ue s t s ” tha thavin gcouns el is moreconclusive of the invalidity of unco unseled waiverthan the mer er e questingof c o unsel. But the Patterso n footnote didnot sug g e st tha tthe an aly s i s “c hang es” in b o th these sc enar ios (h av in ga lawy er , v e r s u s r e qu estin g one) with spe c ificr e fer e nc e to th e validi t y of waivers under the Sixth Amendment. The citation o f Moulton (a nonwaiver case) for the first sc en ar io su g g e sts ju s tth e opposite.13 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt would be completely unjustified to presume that a defen

dant’s cons ent to police-init iated interrogatio nwas invol

untary or coerced simply because he had pre viously been appointed a lawyer. IV So on the one hand, requiring an initial “invocation” of the right t o counsel in order to trigger the Jacksonpre sumption is consistent with the th eory of thatdecision, but (as Montejo and his amiciargue, see Part II, su p ra) would be unworkable inmore than half t h e States of the Union

. On the other hand, eliminating the invocation require

ment would render the rule ea sy to apply but depart fun

damentally from the Jacksonrationale. We do not think that stare deci sis requires us to expand significantly the holding of a prior decision— fundamentally revisin gits theoretical basis in the proc

ess—in order to cure its pra ctica l deficiencies. To the contrar y , th e fact that a decision has proved “ unworkable ” is a traditio nal ground for overruling it. Payn ev. Tenn es see , 501 U. S. 808, 827(1991). Accordingly, we called f o r supplemental briefing addressed to the qu est i on whethe r Michiganv. Jacksonshould be ove rruled. Beyond wo rkability, the rele vant factors i ndeciding whether to adhere to the principle of stare de cisisinclude the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well rea

soned. Pea rsonv. Call ahan , 555 U. S. ___, ___ (2009) (slip op., at 8). The first two cut in favor of abandoning Jack

son:the opi n ion is onlytwo decades old, and el iminating it would not upset expe ctations

. Any criminal defendant learned en ough to order his affairs basedon the ru le announced in Jackson would also be perfectly capable of interactingwith the police on his own. Of course it is lik ely true that police and prosecutors have been trained to comply with Jack son , see gene rally Supplemental Brief14 M O NTEJO v. LOUISIANA Opinion of theCourt for Larry D. Thompson et al. as Amici Curi ae , but that i s hardly a ba sis for retaining it as a constitutional require

ment. If a State wishe sto abstainfrom requesting inter

views with represented defendants when co unsel is no t present, it obviously may continue to do so. 4 Which brings us to the strength of Jackson ’s r e asoning. When this Court c r eat e s a prophylactic rule in order t o protect a c o nstitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. “The value of an y prophyla ctic 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 (S CALIA , J., dis

senting). We think that the marginal benefits of Jackson (viz., the number of confessi ons obtained coercively that are suppressed by its bright- line rule and would otherwise have been admitted) a r e dwa r fed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the la w, ” Moran , sup ra, at 426). What does the Jacksonrule actu ally achieve by way of preventing unconstitutional conduct? Recall that th e purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted right s . See Harvey , supra, at 350; see als o McNeil , 501 U. S., at 177. The effect of this badgering might be to coerce a waiver, whi c h would re nder the su bsequent interrogation a violation of the Sixth Amendment. See Ma ssiah , su pra, at 204. Even though i n voluntary waivers are invalid even

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4 The dissent posits a differe nt relianc e interest: “the public’s interest in knowin g t h a tcouns el, on ce s e cured , m a y b e rea s onab l y relied upon as a med i u mbetweenth e ac c u se d and the power of theState,” post , at 9. We su spec t th e pu blicwou l d be su r p r i sed to lear nt h at a c r i min a l c a nfr eelysig naw ayh i s r i gh t to alaw y er , c o n f ess h i s c r i mes, an d th en ask the c o ur t s to assum ethat the conf ession was coerced—on the g r ound that he had, at som e ear lierpoint in time, mad e a pro forma statement requesting that counselbe appointed on his behalf.15 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt apart from Jackson , see Patte rson , 487 U. S., at 292, n. 4 , mistakes are of course possibl e when courts conduct case

by-case vol untariness review. A bright-line rule like that adopted in Jacksonen sures that no fruits of interrogations made possible by badgering-indu c ed involuntary waivers are ever erroneously ad mitted at trial. But without Jack son , how many would be? The answer is few if an y. The principal reason is that t h e Court has already taken substantial other, overlapping measures towardthe same end. Under Miranda ’s prophylacti c protection of the right a g ainst compelled self

incrimination, any sus p ect subj ect to custodial interroga

tion has the right to have a law y er present if he so re

quests, andto be advised of that r i ght. 384 U. S., at 474. Under Edwards ’ prophylactic protection of t h e Mirand a right, once such a defendant “ has invoked his right to ha ve counsel present,” interrogation must stop. 451 U. S., at 484. And under Minnick ’s prop hylactic pro t ection of the Edwa rds r i ght, no subsequent interrogation may ta ke place until counsel is present, “whether or not the accuse d has consulted with his attorney.” 498 U. S., at 153. These three layers of prophylaxis are sufficient. Under the Miranda

- Edwards

- Minnickline of cases (w hich is not in doubt), a defendant who does n o t want to speak to the police without counselpresent n eed only s a y as much when he is first approa ched and given the Miranda wa rn ings. Atth at point, not only mustthe immediate contact end, but “badgering” b ylater requests is pr ohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speakoutside his lawyer’s pres

ence” before his arraignment, Cobb , 532 U. S., at 1 75 (K ENN E DY , J., concurri ng), it is h a rd to see why itwou l d not also suffice to protect t hat sa me choice after arraign

ment, whenSixthAme n dment righ ts have at tached. An d if so, then Jackson is simply superfluous. It is true, as Montejo points out in his sup p lemental16 M O NTEJO v. LOUISIANA Opinion of theCourt brief, that the doctrin e established by Mirandaand Ed

wardsis designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is ir relevant. What matters is that thes e cases, lik e Jackson, protect the right to have counsel during custodial interrogation—whic hright hap

pens to be guaranteed (once the a dversary ju dicial process has begun) by two sources of law. Since the right unde r both sources is waived using the same procedure, Patter

son , supra, at 296, doctrines ensur i ng voluntariness of the Fifth Ame n dment waiver simultaneouslyensure the voluntariness of the Sixth Amendment waiver. Montejo also correctly observes that the Miranda

Edwa rds regime is nar rower than Jacksonin one respect: The former applies onlyin the context of custodial interro

gation. If the defendant is notin custody then those deci

sions do notapply; nor do theygovern other, noninterroga

tive types of interactions between the defendant and the State (lik e pretrial lineups). H o wever, those uncovered situations are the leastlikely to pose a risk of coerce d waivers. When a defendant is not in custody, he is in control, and need only s hut his door or walk away to avoid police badgering. And noninte rrogative interactions with the State do not involve the “inherently compelling pres

sures,” Miranda , supr a , at 467, that one migh t reasonab ly fear could lead to involuntary waivers. Jacksonwas policy dri v en, and if that policy is being adequately served thro ugh other means, there is no rea s on to retain its rule. Mi randaand the cases that elabora te upon it already guara n tee not simply noncoercion in the traditional sense, but what Justic e Harlan r e ferred to as “voluntarin ess with a vengeance,” 384 U. S., at 505 (dis

senting opi n ion). There is no n e ed to take Jackson ’s fur

ther step of requiring voluntarines s on stilts. On the other side of the equation a r e the costs of adding the bright-line Jackson rule on top of Edwardsand other extant protections. The prin cipa l cost of a p plying an y17 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt exclusionary rule “is, of course, let t ing guilty and possibly dangerous criminals go free .

. . . ” Herrin g

v. United Sta t es , 555 U. S. ___, ___ (2009) (slip op., at 6). Jack son not only “o perates to i n validate a confession given by th e free choice of suspects who have received proper advice of their Miran d arights b u t waived t h em nonetheless,” Cobb , supra , at 174–175 (K ENN E DY , J., concurri ng), but also deters law enforcement officers from even trying to obtai n voluntary confessi ons. The “ready ability to obtain unco

erced confe ssions is not an evil bu t an unmiti g ated good.” McNeil , 50 1 U. S., at 181. Wit h out these confession s, crimes go u n solved and criminals unpunished. These are not negligible costs, and in our view the J a cksonCou r t gave them t oo short shrift. 5 Notwithsta nding this calculus, Montejo and his amici urge the retention of Jackson

. Their principal objection to its eliminat ion is that the Edwardsregime which remains will not pro vide an administrabl e rule. But this Court has praised Ed wardsprecisely because it provide s “ ‘clear an d unequivocal ’guidelines to the la w enforcement profes

sion,” Arizonav. Roberson , 486 U. S. 675, 682 (1988). Ou r cases make clear whic h sorts of statements triggerits protections, see Davisv. Uni t ed S t ates , 512 U. S. 452, 4 5 9 (1994), and once triggered, the rule operates as a bright line. Mont ejo express e s concern that courts will have to determine whether statements m a de at preliminary hear

ings constitute Edwa r dsinvocations—thus implicating all the practical problems of the Louisiana rule we discusse d above, see Part II, supra . That concern is misguided. “We

——————

5 Th e dissen tc l aim s th at, infac t , fewc o nfession s h av e beensu p pressed by fe deral courts applying Jack s o n . Post , at 8. If s o , that is bec a u s e, as th e dissen t boas ts, “g en er ations of police offi cers have been tr ain e d to r e fr ainfr om appr oa ching rep r esented defendants,” post , at 9, n. 4

. Anywa y , if the rule truly does not hinder la w enforcement or make muc hp r ac tic a l differ e nc e, see post , at 7–9, an d n n . 3–4, th en th er e is n o r e asonto be par t i c u l ar lyex er c i s e d abou tits de mise.18 M O NTEJO v. LOUISIANA Opinion of theCourt have in fa ct never h e ld that aperson ca n invoke h i s Mirandari ghts anticipatorily, in a context other than ‘custodial interrogatio n ’. . . .” McNeil , supra , at 182, n. 3. What matt ers for Miranda and Ed wards is what happens when the defendant is approache dfor interrogation, and (if he consents) what h a ppens during the interrogation— not what ha ppened at any preliminary hearing. In sum, when the marginal benefits of the Jackson rule are weighed against its substantial costs to the truth

seeking process and the criminal justice system, we read

ily conclude that the rule does not “pay its way,” Uni t ed Sta t es v. Leon , 468 U. S. 897, 907 –908, n. 6 (1984). Michi

ganv. Ja ck sonshould be and now is overruled. V Although our holding means that the Louisiana Su

preme Court cor r ectlyrejected Montejo’s claim under Jackson , we think tha tMontejo should be given an oppor

tunity to contend that his letter of apology should still have been s u ppressed under the rule of Edwards

. If Mon

tejo made a clear assertion of the right to counsel when the officers approached him about accompanyi n g them on the excursi o n for the murder weapon, then no interrog a tion shouldhave tak e n place unless Montej o initiated it. Davis , supr a , at 459. Even if Mont ejo subsequ e ntly agreed to waive his rights, th at waiver would have been invalid had it followed an “unequivocal election of the right, ” Cobb , 532 U. S., at 17 6 (K ENN E DY , J., concurring). Montejo understandably did not pursue an Edwa r ds objection, because Jacksonserved as the Sixth Amend

ment analogy to Ed wa rdsand offered broader protections. Our decision today, ov erruling Ja ckson , chan ges the legal landscape and does so in part based on the protections already pro vided by Edw a r ds . Thus we think that a re

mand is appropriate so that Montejo can pursue th is alternative avenue for relief. Mo ntejo may also se eko n19 Cite as: 55 6 U

. S. ____ (2009) Opinion of theCourt remand to press any claim he might ha ve that his Sixth Amendment waiver was not kno w ing and voluntary, e. g. , his argument that the waiver wa s invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer, cf. Moran , 475 U. S., at 42 8– 429. These matters h a ve heightened importance in light of our opini o n today. We do not venture to resolve thes e issues ourselves, not only because we are a court of final review, “not of first view,” Cutter v. Wilkin son , 544 U. S. 709, 718, n. 7 (2005), but also because the relevant facts remain unclear. Mon

tejo and the police gave incon s istent testimony about exactly what tookplace on the afte rnoon of Se ptember 10, 2002, and the Louisian a Supreme Court did n o t make an explicit credibility determinat ion. Moreover, Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we a r e unsure whether under state law that testimony came too late to affect the pr opriety of the admission o f the eviden ce. Thes e matters are best l e ft fo r resolution on remand. We do reject, however , th e dissent’s revisionist legal analysis of the “knowing and voluntary” issue. Post , a t 10–14. Indetermining whether a Sixth Amendment waiver was knowing and voluntary, there is no reason categorically to distinguis h an u n represented defendant from a represented on e . It is equa lly true for each that, as we held in Patterson , the Miran d awarnings adequately inform him “of his rightto have counsel present durin gth e questioning ,” and make him “aware of the con s equences of a decision by him to waive his Sixth Amendment rights ,” 487 U. S., at 293

. Somewhat surprisingly for an opinion that extols the virtue s of stare decisi s , the dissent com

plains that our “treatment of the waiver question rests entirely on the dubious decision in Patterson ,” post , at 12. The Court in Pa tte rson did not consider the res u lt dubious, nor does the Court tod a y.20 M O NTEJO v. LOUISIANA Opinion of theCourt

* * * This case is an exemplar of Justice Jackson’s oft quoted warning th at this Cou rt “is fo rev e r adding n e w stories to the temples of constitutional law, and the te mples have a way of collapsing when one story too many is added.” Douglas v. City of Jeannette , 31 9 U. S. 157 , 181 (1943) (opinion concurringin result). We today remove Michigan v. Jackson ’s fourth story of prophylaxis. The judgm e nt of the Louisiana Supreme Court is va

cated, and the case is remanded for further proceedings not inconsistent with th is opinion. It is so orde red._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)
ALITO , J ., con c urrin g 

## SUPREME CO URT O F THE UNI TED STATES

No. 07–1 52 9
JESSE JAY MONT EJO, PETITIONER v. LOUISIANA ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF LOUISIANA [M ay26, 2009 ] J USTICE ALITO , with whom J U S TICE K EN NEDY joins, concurring. Earlier this Term, in Arizona v. Gan t , 556 U. S. ___ (2009), the Court overruled New York v. Belto n , 453 U. S

. 454 (1981), even though that cas e had been on the books for 28 years, had not been undermined by subsequen t decisions, h a d been rec e ntly reaffirmed and extended, had proven to be emine n tly work able (indeed , had bee n adopted for precisely that reason) , and had engendered substantial law enforcement reliance. See Ga nt , sup ra , a t ___ (s lip op. , at 4) (ALITO , J., dissenting). The Court took this step even though we were not asked to overrule Bel

tonand thi s new rule is almost certain to lead to a host of problems. See Gant, s u pra , at ___ (slip op., at 10) (ALITO , J., dissenting); Me ggi nson v. Un ited Sta t es , post , p. ___; Grooms v. United Sta t es , post , p. ___. J USTICE S CALIA , who c a st the deciding vote t o overrule Belton , dismissed star e de cisisco ncerns withthe followin g observation: “[I]t seems to me ample reason that the precedent was badly reasoned an d produces erroneous .

. . results.” Gant , su pra , at ___ (slip op., at 3) (concurrin g opinion). This narrow view of star e deci sisprovide s the only principle on which the decision in Gantcan b e justified. In light of Gant , the discussion of sta re d ecis i sin today’s2 M O NTEJO v. LOUISIANA
ALITO , J ., con c urrin g dissent* is surprising. The dissent in the case at hand criticizes th e Court for “[a]ctingon its own” in reconsider

ing Michigan v. Jack son, 475 U. S. 625 (1986). Post , at 4 (opinion of S TEVE NS , J.). But the same was true in Gan t , and in this case, the Co urt gave th e parties an d interested amicithe opportunity to submitsupplemen t al briefs on the issue, a step not taken in Gant

. The dissent faults the Court for “cast[ing] aside the reliance int e rests of law enforcement,” post , at 8–9, but in Gant , ther e 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 conce d ed that th e Beltonrule had “been widely taught in police academies and that la w enforcem e nt officers ha[d] relied on the rule in conducting vehicle searches during the past 28 years. ” 556 U. S., at ___ (s lip op., at 16)

. And whatever else might be said about Bel t on , it surely provided a bright-line rule. A month a g o, none of this counted for mu ch, but toda y the dissent writes:

“ Jackson ’s bright-line rule has provided law enforce

ment officers with clear guidance, allowed prosecutors to quickly and easily assess whether confessions will be admissible in court , and assist ed judges in deter

mining whether a d e fendant’s Sixth Ame n dment rights hav e been violated by police interrogation.” Post , at 8. It is striking that preci s ely the same points were true in Gant: “[Bel t on ’s] bright-line rule ha[d] provided law en

forcement officers withcl ear guidance, allowe d prose

-

——————

* One of the dissenters in the present case, J US TI CE B REYER , a l s o dissen t ed in Gantand wo uld have followed Beltonon stare deci si s grounds. See 556 U. S., at___ (slip op., at 1). Thus, he would not overrule eithe r Beltonor Mi chiga n v . Ja ck son , 475 U. S. 625 (1 98 6).3 Cite as: 55 6 U

. S. ____ (2009)
ALITO , J ., con c urrin g cutors to q u ickly and easilyasses s whether [evidence obtained ina vehicle search] w[ou ld] be admissible in court, and assisted judges in determining whether a defendant’s [Fourth] Amendment rights ha[d] been violated by police inter r ogation.” Post , at 8. The dissent , finally, invokes Jackson ’s antiquity, statin g that “the 23-year existence of a simple bright-line rule” should weigh in favor o f its retenti o n. Post , a t9

. B u ti n Gant , the Court had no compuncti on about ca sting aside a 28-year-old bright-line rule. I ca n only assume that th e dissent thinks tha tou r constituti onal precedents are like certain win e s, which are most treasured when they are neither too young nor too old, and that Jackso n , at 23, is in its prim e, whereas Belton , at 28, had turned brownish and vinegary. I agree with the dissent that s t a re d ecisi ssh ou l dp r o mote “ ‘the evenhanded .

. . development of legal princi

ples,’ ” post , at 6 (quoting Paynev. Tenn es se e , 501 U. S. 808, 827–828 (1991)). The treatment of sta re de cisis in Gantfully s u pports the decision in the present case._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting 

## SUPREME CO URT O F THE UNI TED STATES

No. 07–1 52 9
JESSE JAY MONT EJO, PETITIONER v. LOUISIANA ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF LOUISIANA [M ay26, 2009 ] J USTICE S TEVEN S , with whom J USTICE S OUTER and J USTICE G IN S B UR G join, and withwhom J U S TICE B REYE R joins, except for footnote 5, dissenting. Today the Court properly conclu des that th e Louisiana Supreme Court’s parsimonious re ading of ou r decision i n Michiganv. Jackson , 4 75 U. S. 62 5 (1986), is indefensible. Yet the Court does not reverse. Rather, on its own init ia

tive and without any evidence that the longstanding Sixth Amendment protections establis hed in Jacksonhave caused any harm to the working s of the criminal justice system, the Court rejects Jacksonoutright on the ground that it is “untenable as a theoretical and doctrinal mat

ter.” An te , at 6. Tha t conclusion rests on a misinterpreta

tion of Jackson ’s rationale and a gross undervaluation of the rule of sta re de cisi s . The police interrog a tion in this case clearly violated petiti oner’s Sixth Ame n dment right to counsel. I The Sixth Amendment provides that “[i]n all criminal prosecutions, the accus e d shall enjoy the righ t

. . . to have the Assistance of Counsel for his defence.” The right to counsel attaches during “the initiation of adversary jud i

cial criminal proceedings,” Rothgeryv. Gillespie County , 554 U. S. ___, ___ (2008) (slip op., a t5) (internal quotation2 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting marks omitted), and it guarantees the assista n ce of coun

sel not only during i n -court pro c eedings but during all critical stag es, including postarrai g nment interviews wit h law enforcement offic e rs, see Pattersonv. Illinois , 4 8 7 U. S. 285, 290 (1988). In Jackson , this Court considered whether the Sixt h Amendment bars police from in terrogating defendants who have requested the appointment of counsel at ar

raignment. Applying the presumption that such a request constitutes an invocation of the right to coun sel “at ever y critical stage of the prosecution,” 4 75 U. S., at 633, we held that “adefendant who has been formally ch arged with a crime and who has requested appointment of counsel at his arraign m ent” cann ot be subject to un counseled inter

rogation un less he init iates “exch anges or co nversations with the police,” id. , at 626. In this case, petitioner Jesse Montejo contends that police viola t ed his Sixth Amendment right to counselby interrogati ng him following his “72-hour hearing” outside the presence of, and without pr ior notice to, his lawyer. The Louisiana Supreme Court rejected Montejo’s claim. Relying on the fact that the defendants in Jacksonha d “requested” counsel at arraignme n t, the stat e court held that Jackson ’s protections did not apply to Montejo be

cause his counsel was appointed automatically; Montejo had not explicitly requested counsel or affirmatively a c cepted the counsel appointed to represent him before he submitted to police interrogatio n . 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 allow e d to stand, “would lead either to a nunworka ble standard, or to arbitrary and anomalous distinctions between defendants in different States,” an te , at 3. Neither option is tolerable, and neither is compelled by Jack sonitself. Our decision in Jacksoninvolved t w o consolid ated cases,3 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting both arising in the State of Michigan. Under Michigan law in effec tat that time, when adefendant appeared for arraignment the courtwas required to inform him that counsel would be provided if he was financially needy a nd he reque ste drepre sen tation

. Mich. Gen. Ct. Rule 785.4( 1) (1976). It was undisputed that the Jacksondefendants made such a “request” at their arraignment: one by com

pleting an a ffidavit of indigency, and the other by respond

ing affirma t ively to a question posed to him by the court. See App. in Michiganv. Jackson , O. T. 1984, No. 84–153 1, p. 168; App. in Michiganv. Bl a d el , O. T. 1984, No. 84– 1539, pp. 3 a–4a. In neither case, however, was it clea r that counsel had actua lly been appointed at the arraign

ment. Th us, the defendants’ re quests for counsel were significant as a matter of stat e law because they served as evidence that the appointment of counsel ha d been effe c tuated eve nin the absence of proof that defense couns el had actual notice of the appointments. Unlike Michigan, Louisiana does not require a defen

dant to ma ke a request in ordert o receive court-appoint e d counsel. Consequently, there is no reasonto place con s ti

tutional significance on the fact that Montejo neither voiced a request for counsel n o r affirmatively embraced that appointment post hoc

. Ce rtainly our decision in Jacksondid not manda t e such an odd rule. S ee ante , at 4 (acknowledging that we had no oc casion to decide in Jack

sonhow 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 req uestsa lawyer, he is even more obviously enti

tled to suc hprotectio nwhen he has se cur e d a lawyer. Indeed, we have already recognized as much. See Michi

ganv. Har v ey , 494 U. S. 344, 352 (1990) (acknowledgi ng that “once a defendant obtains or even requests counsel,” Jacksonalters the wai v er analysis); Patterso n , 487 U. S.,4 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting at 290, n. 3 (noting “as a matter of some sign ificance” to the constitutional an alysis that defendant had “not re

tained, or a ccep tedby appointmen t , a lawyer to represent him at the time he was question e d by authorities” (em

phasis added)). 1 Once a nattorney- c lient relationship has been established through the appointment or retention of counsel, as a matter of federal law the method by whic h the relationship was cr eated is irrelevant: The existence of a valid attorney-client relationship provides a defendan t with the f u ll constitutional protection afforded by th e Sixth Amendment. II Today the Court corre ctly concludes that the Louisiana Supreme C o urt’s hold ing is “tro ublesome,” ante , at 4, “impracti cal,” ante , at 5, and “u nsound,” ante , at 6. In

stead of rev e rsing the d e cision of the state co urt b ysimp ly answering the questionon which we gran ted certiorari i n a unanimou s opinion, h o wever, the majority h a s decided to change the law. Acting on its own initiative, the majority overrules Jacksonto c o rrect a “th eoretical and doctrinal” problem of its own i m agining, see ante , at 6. A more careful reading of Jacksonand the Sixth Amendment cases upon which it relied reveals that the rul e announced in Jacksonprotects a fundamental right that the Court now dishonors. The majorit y ’s de cision to overrule Jackson re sts on its assumption that Jackson ’s protective rule was intended to “prevent police from badgering defendants into changi n g their minds about their righ ts,” ant e , at 10; see also ante ,

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1 In Patt erso n v. Illinois , we f u rther e x pla i ned, “[o]nce a n a ccus e d ha s a lawy er ,” “a distinc t set of c o nstitutional safeg u ar ds ai med atpr eserv ingthe sanc tityof the attor n ey -c lientr e l a tion sh ip t a k e s effec t

. ” 487 U. S., at 2 90, n . 3 (c itin g Mainev. Mo ulto n , 474 U. S. 1 59, 1 76 ( 198 5) ). “Indeed,” we emphasized, “the anal ys is cha n ges m a rkedly once a n accused even re q u est s th e assist an c e of c o un sel.” 487 U. S., at 290, n

. 3.5 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting at 13, just as the rule adopted in Edwa rdsv. Arizona , 4 51 U. S. 477 (1981), was designed to prevent police from coercing unindicted suspects into revoking th eir request s for counsel at interro gation. Op erating on that limited understanding of the purpose behind Jackson ’s protective rule, the C o urt concludes that Jacksonprovides no saf e guard not already secured by thi s Court’s Fifth Amend

ment jurisprudence. See Mirandav. Arizona , 384 U. S. 436 (1966) (r equiring defendants to be admonished of their right to counsel prior t o custodial interrogatio n); Edwards , 451 U. S. 477 (prohibiting police-initiated interrogation following defendant’s invocation of the right to counsel). The majority’s analysi s flagrantly misrepresents Jack

son ’s under lying ration ale and the constitutional interests the decision sought to protect. While it is true that the rule adopted in Jackso n was patt erned after the rule in Edwa rds , 4 51 U. S., a t484–485, the Jackson opinion does not even m e ntion the anti-badgering considerations that provide the basis for the Court’s decision today. Instead, Jacksonrel i ed primari l y on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel—not its Fifth Amendment counterpa rt. 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 Uni t ed Sta t es v. Gouveia , 467 U. S. 180, 189 (1984)), by giving him “ ‘the right to rely on counsel as a ‘medium’ betwee n him[self] an d the State, ’ ” 475 U. S., at 632 (quoting Maine v. Moulton , 474 U. S. 1 59, 176 (19 85)). Un derscoring th at the commencement of criminal proceedings is a decisive event that t r ansforms a suspect int o an accused within th e 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 sus p ects. See, e.g. , 475 U. S., at 632 (“[T]he diff erenc e bet w een the legal basis for the rule6 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting applied in Edwa rds and the Si xth Amendment claim asserted in these cases actually provides ad ditional sup

port for the application of the rule in these cir c umstances ” (emphasis added)). Thus, althou gh the rules adopted in Edwa rdsan d Jackson are similar, Jacksondid not rely on the reasoni n g of Edwa rdsbut remained fir m ly rooted in the unique protection s afforded to the at torney-client relationshi p by the Sixth Amendment. 2 Once Jacksonis placed in its pro p er Sixth Amendment context, th e majority’s justifications for overruling th e decision crumble. Ordinarily, this Court is hesitant to disturb past precedent and will do so only when a rule ha s proven “outdated, ill-founded, un work able, or otherwise legitimately vulnerable to serious reconsideration.” Vasquez v. Hillery , 474 U. S. 254, 266 (1986). While star e decisi sis n o t “an inexorable comm and,” we adhere to it a s “the preferred course b e cause it promotes the evenhanded, predictable, and consistent development of legal princi

ples, fosters reliance onjudicial decisions, andcontributes to the actu al and perc eived integrity of the j u dicial proc

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2 The major i tyinsist s that pr otec ti on fro mpolice badg e ring is the only purpose the Jack sonr u le ca n pla u s i b l y s e rve. Aft e r a ll, itas ks , from what other evil wo uld the rule guard ? See ante , at 9. Th er e ar e two obvious answers. First, most na rrowly, it protects the defendan t fr om anypolice-initiate d inter r o g a tion with out notic e to his c o unsel, not j u s tfrom “ba d gering” whic h is not ne cessarily a p a rt of p o lice question

in g . Sec o n d , an d of pr ime impor t an c e , itas su r e s th at an ywaiv erof counsel will be valid. The as sis t ance of fered by counsel protect s a defenda n t from s u rrenderi n g his righ ts with an insuffic i ent appr ec ia

tion of what those rights are and ho w the dec i sion to r e spond to inter

r o g a tion migh t adv a nc e orc o mpr o mi se his exercise of those rights throughout th e cou r s e of c r imina l proceedings. A lawyer can p r ovid e her clientwit ha dvice rega rding t h e lega l a n d pra c t i cal opt i ons av a i l

ab l e to him; the potentia l cons eq uenc es, both good andbad, of choosi n g to disc u ss h i s c a se w i thpolic e; th e lik ely ef fect of such a conversation on th e r e solu tion of th e c h ar g e s ag ain s th i m; an d anin for m ed as ses s men t of the be st co urse of actionunder t h e circum s t a nces . S u ch a s s i s t a n ce goes far beyond mere protect i on against po lice badgering.7 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting ess.” Paynev. T e nne s see , 501 U. S. 808, 827–82 8 (1991). Paying lip s e rvice to th e rule of stare d ecis i s , the major

ity acknowledges that the Court must con s ider many factors before takin gt h e dramati cstep of o v erruling a past decision. See ante , at 12. Specifically, the majority focuses on four considerations: the reasoning of the deci

sion, the workability of the rule, the reliance interests at stak e, and the antiq uity of the precedent. The Cou r t exaggerates the considerations favoring revers al, however, and gives short shrift to the valid considerations favoring retention of the Jackson rule. First, and most centr a l to the Court’s decis i on to over

rule Jackson , is its assertion that Jack son ’s “ ‘reason

ing’ ”—which the Court defines as “the weighing of the [protective] rule’s benefi ts against its costs,” ante , a t14— does not justify continued application of the rule it cre

ated. The balancing test the Court performs, however, depends entirely on its misunderstanding of Jacksonas a rule designed to prevent police b a dgering, rather than a rule design ed to safeguard a defendant’s righ t to rely on the assistance of counsel. 3 Next, in order to reach the conclusion that the Jackso n

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3 Ev en acc e ptingthe major i ty ’s improper framing of Jack son ’s fou n dation, the Co ur t fails to show that the costs of the rule are more than negligible or differ from any other pr otection afforded by the right t o c o unsel. The major i ty assu mes, with out citing any empirical or even anec dotal sup p or t, that any mar ginal ben e fits of the Jack son rule a r e “dw a r f ed byits su bst a n t ia l c o sts, ” w h ic hit desc r ibes as h a r mto “ ‘s oci

ety’s compelling interest in findin g, co nvicting, and p unishing those who violate th e law.’ ” Ante , at14 (qu o tin g Moranv. Burbine , 475 U. S. 412, 4 26 (1 98 6)). Th at as s u mptionis h i gh lydu biou s, par t ic u l ar lyin light of the fa ct that several amiciwith i n ter e st in lawenfor c e ment have conceded that the appl ication of Jack son ’s prot ect ive rule ra rely impedes prose c ution. See Supplem ental Brief for Larry D. Thompson et al. as Amici Curiae6 (hereinafter Thomps on Suppl emental Brief ) ; Brief for United Sta t es as Am i c u s C u r i a e 12 (hereinafte rUnited State s Brief).8 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting rule is unworkable, the Court reframes the relevant in

quiry, asking not whether the Jackson rule as applied f o r the past qu arter centu r y has proved easily a d ministrable, but instead whether the Louisiana Supreme Court’s cramped interpretatio nof that r u le is practically worka

ble. The a n swer to th at question, of course, is no. When framed more broadly, however, the evidence is overwhelm

ing that Ja ckson ’s simple, bright-line rule ha s done mor e to advance effective law enforce ment than to undermine it. In a suppl e mental brief submitted by lawyers an d judges with extensive experi ence in law enforcement an d prosecution, amiciLarry D. Tho m pson et a l . argue pe r suasively that Jackso n ’s bright-li n e rule has provided l a w enforcement officers with cl ear guidance, allo wed prosecu

tors to quic k ly and easily assess whether confessions will be admissib l e in court, and assisted judges in determining whether a defendant’s SixthAme n dment rights have been violated by police interrogation. See generall y Thompso n Supplemental Brief 6. While am i c iackno w ledge tha t
“ Jacksonre duces opportunities to interrogate defendants” and “may require exclusion of evidence that could support a criminal conviction,” t h ey maintain that “it is a rare case where this rule lets a guilty defendant go free.” Ibi d

. Notably, th ese representation s are not contra dicted byth e State of Lo uisiana or other amici , including the United States. Se e United States Brief 12 (conceding that th e Jackson rul e has not “resulted in the suppression of sig

nificant numbers of statements in federal prosecutions in the past”). 4In short, there is sub s tantial evidence sug

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4 Furthe r supporting the wo rkability of th e Jack son rul e is t h e fa ct th at i t alig n s withth e pr ofession als t an da r d s an d n o r m s th a ta l r e ady gover nt h e b e havior of police a n d pr osecutors. Rules of Professional Conduct endor s ed b yth e Am er ic anBarAs soc i ation(A BA ) an d byev er y S t at e Ba r As socia t ion in t h e count ry prohib it prosecut ors from makin g directcont a c twit hrepres en t e d defe ndant s in all but th e most l i mi ted of circ um s t a n ces , s ee App. t o S u ppl emen tal Brief for Public Defende r9 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting gesting tha t Jack son ’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 r ejects the interests of criminal defendants with the flippant observation thatany who are knowledgeable enough to rely on Jack son are too savvy to need its prote c tions, and casts aside the reliance interests of law en

forcement on the ground thatpolice and p r osecutors re

main free to employ the Jacksonrule if it suits them. Se e ante , a t12. Again as aresult of its mistaken understand

ing of the purpose be hind Jackson ’s protective rule, th e Court fails to identify t h e real reliance interest at issue in this case: the public’s interest in knowing that counsel, once secured, may be reasonably r e lied upon as a mediu m between the accused and the power of the State. Tha t interest lies at the heart of the Sixth Amend m ent’s gua r antee, and is surely worthy of greater consideration th an it is given by today’s decision. Finally, although the Court acknowledges that “antiq

uity” is a f a ctor thatc o unsels in favor of reta ining prece

dent, it con c ludes thatthe fact J a cksonis “ o nly two de c ades old” cuts “in favor of ab andoning ” the rule it established. Ante , at 1 3

. I would have thought that th e

—————— S e rvice for t h e Dis t rict of Columbi aet al. as Amici Curiae1a–15 a (s et t i ng fort h s t at e rules governin g co nt a c twit hrepres ent e d pers ons ) ; ABA Model Rule of ProfessionalCo n d uct 4.2 (20 08); 2 8U. S. C. §530 B(a) (m a k in gstate r u les of pr ofessional conduct applicable to federa l a t t o rneys ) , a n d gene ra t i ons of pol i c e officers have been trained t o refra i n froma pproa ching repr esented defendants, both bec a use Jack son r e qu i r es it an d bec a u s e, absen t direction fro mprosecutors, officers a r e re t i centt o int e rroga t e repres ent e d defenda n t s . S ee Unit ed Sta t es Br ief 1 1–1 2; see also Th om pson S u pplemental Brief 13 (cit ing Federal Bureau of Investigation, Legal Handbook for SpecialAgents §7–4.1( 7) (2 00 3)). In deed, t h e Un ited S t a t es c o n c edes t h at adec i sion t o overrule the case “l ikely w[ill] no t signifi c antly alter t h e manner in which federal law enforcement agents inve stigate indicte ddefendants.” Un ited St ates Br ief 11–1 2.10 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting 23-year existence of a simple bright-line rule would be a factor that cuts in the other direct ion. Despite the fact that the rule established in Jackson remains relevant, well grounded in constitutional prece

dent, and easily administrable, the Court today rejects it sua sponte

. Such a decision can on ly diminish the public’s confidence i nthe reliab ility and fairness of ou r system of justice. 5 III Even if Ja ckson had never been decided, it would be clear that Montejo’s Sixth Amen dment righ ts were vio

lated. Today’s decision eliminates the rule that “any waiver of Sixth Amendment ri gh ts given ina discussi on initiated by police is p r esumed invalid” once a defendant has invoked his right to counsel. Harvey , 494 U. S., at 34 9 (citing Jackson , 475 U. S., at 63 6). Nevertheless, und er the undisputed facts of this case, there is no sound basis for concluding that M o ntejo made a knowin g and valid waiver of his Sixth Amendmen t righ t to counsel before acquiescing in police interrogatio nfollowing his 72-hour hearing. Because police quest ioned Mon t ejo without notice to, and outside the presence of, his lawyer, the

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5 In his conc ur r e nce, J US TI CE ALITO assumes that myc o nsider ation of the rule of stare de cisi sin this c a se is at odds with the Cour t’ s r e c e nt rej e ct ion of his relia nce on t h a tdoct rine in his diss ent in Arizonav. Gant , 556 U. S. ___ (2 00 9). While I ag ree thatthe re asoning in hi s dissen tsu ppo r t s mypo siti oninth is c a se, I do n o t ag r ee w i thh i s characterizati on of o u r opinion in Gant

. C o nt ra ry t o his repres ent a t i on, the Court did not overrule our pre c edentin New Yorkv. Belton , 453 U. S. 454 (19 81). Rath er , we affir m ed th e n a rr ow i n ter p r e tationof Belton ’s holding adopted bythe Arizon a Supreme Court, rejecting the b r oa der int e rpret a t i on a d opt e d b yot her lower court st h a tha d b een roundlycrit i ci zed b yj u dges a n d s c hola rs a like. By co nt ra s t , in t h is case the Court flatly overrules Jack son—a r u le th at h a s dr awnv i r t u ally no critici sm—on it s o w n initiative. The two ca ses are hardl y c o mpar able. I f th eywer e , a n d if J US TI CE ALITO meant what he said i n Gant, Iwould expect him to join this opinion.11 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting interrogation violated Montejo’s right to counsel ev en under pre- J a cksonprecedent. Our pre- Ja cksoncase law makes clear that “ t he Sixt h Amendment is violated when the State obtains incriminat

ing statements by kno w ingly cir c u mventing the accused’s right to have counsel present in a confrontation between the accuse d and a s t ate agent.” Moulton , 474 U. S., at 176. The Sixth Amendment entitles indicted defendants to have counsel notified of and present during critica l confrontations with the state throughout the pretria l process. Given the realities of m o dern criminal prosecu

tion, the cri tical proceedings at wh ich counsel’s assistance is required more and more often occur outsi d e the cour t

room in pretrial proceedings “where the results might well settle the accused’s f a te and re duce the t r ial itself to a mere formality.” United Sta t esv. Wade , 38 8 U. S. 218, 224 (1967). In Wade , for instance, we held that becau s e a post

indictment lineup conducted for id entification purposes is a critical stage of the criminal proceedings, a defendant and his counsel are constitutio nally entitled to notice of the impending lineup. Accordin gly , counsel’s presence is a “requisite to conduct of the lineu p, absent an intelligen t waiver.” Id

. , at 237 (internal quotation marks omitted). The same reasoning applies to police decisions to interr o gate represented defendants. For if the Sixth Amendment entitles an accused to such rob u st protection during a lineup, sur e ly it entitl es him to s u ch protection during a custodial i n terrogatio n , when the stak es are as h i gh or higher. Cf. Spano v. New York , 360 U. S. 3 15, 326 (1959) (Douglas, J., concurring) (“[W]h at use is a defendan t’s right to effective counsel at every stage of a criminal case if, while h eis h e ld awaiting trial, he can b e questioned in the absence of counsel until he con f esses?”). The Court avoids confronting the serious Sixth Amend

ment concerns raised by the police interrogation in this12 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting case by assuming that Montejo validly waived his Sixth Amendment rights bef o re s ubmitting to interrogation. 6I t does so by summarily concluding that “doctri nes ensurin g voluntariness of the Fi fth Amendment waive rsimultane

ously ensure the volun t ariness of the Sixth Amendment waiver,” ante , at 15–1 6; thus, because Montejo was give n Miranda warnings pri o r to interr ogation, his waiver wa s presumptively valid. Ironically, while the Court faults Jacksonfor blurring the line bet w een this Court’s Fifth and Six t h A m endment j u risprudence, it commi ts the same error by assuming that the Mirandawarnings given in this case, d e signed pur e ly to safeg uard the Fifth Amend

ment right against self-in crimination, were somehow adequate to protect Montejo’ s more robust Sixth Amend

ment right to counsel. The majority’s cu rsory treatment o f the waive rquestion rests entirely on the dubious decision in Patterson , in which we addressed whether, by providing Mirandawarn ings, police had adequately advised an indicted but unrep

resented defendant of his Sixth A m endment right to cou n sel. The majority heldthat “[a]s a general matter .

. . an accused wh o is admonished with the warnings prescribed

. . . in Mira nda , . . . ha s beensuffi ciently apprised of the nature of h i s Sixth Amendment rights, and of the con s e quences of abandoning those rights.” 487 U. S., at 296

. The Court recognized, however, that “because the Sixt h Amendment’s protection of the attorney-client relationshi p

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6 The majority leaves open the possi bili tythat, on r e ma nd, M o ntejo m a y a r gue t h a this wa iver wa s inva lidb e cause police falsely to ld hi m he ha d not b e en a ppointed c o uns el. S ee an t e , at 18. Wh ile such police deception wo uld obviously invalidat e any othe rwise valid waiver of Montejo’s Sixth Amendment rights, Mon t ej o ha s a s t r o ng a r gu ment th at, giv e nh i s statu s as a repres ent e dcriminal defendant , the Mira nda war n ing s giv e n to him by polic e wer e i n suffic i ent to per m it him t o make a knowing waiver of his Si xth Amendment rights even abse n t police deception.13 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting

. . . extends beyond Miranda ’s protection of the Fift h Amendment right to counsel, .

. . there will be cases where a waiver which would be valid u n der Miran d awill not suffice for Sixth Ame n dment purposes.” Id

. , at 297, n. 9. This is such a case. As I observed in Patterson , the conclusion that Mirand a warnings o r dinarily provide a sufficient basis for a know

ing waiver of the right to counsel r e sts on the questionable assumption that those warnings m a ke clear to defendants the assista n ce a lawyer can render during po st-indictmen t interrogation. See 487U. S., at 307 (dissenting opinion). Because Miranda warnings do not hint at the ways i n which a lawyer might assist herclient during convers a tions with the police, I remain convinced that the warn

ings prescri bed in Miranda , 7while sufficient to apprise a defendant of his Fifth Amendment righ t to remain silen t , are inadequate to inform an unrepresented, indicted de

fendant of his Sixth Amendment right to have a lawye r present at a ll critical stages of a cri minal prosecution. The inadequacy of those warnings is even more obvious in the case of a re pres enteddefendant. While it can be argue d that inform ing an indicted but un represented defendant of his right to counsel at least ale rts him to the fact that he is entitled to obtain something he d oes n o t already possess , providing that same warning to a defenda n t who has alreadysec u red counsel is more likely to confound than enlighten. 8By glibly assuming that that the Miranda

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7 Under Mi ran d a , a su spec t mu st be “war n e d pr iorto an yqu estion in g tha the ha s the righ t to re ma in s ilent, tha ta n ything he s a ys ma y b e used ag ainst him in c o ur t of law, that he has the r i gh t to the pr esence of any attorney, and that if he ca nnot afford an attorn ey, one will be appointed for him pr iorto a n yquestion ing if he so des i res.” 38 4 U. S ., at 47 9.

8 With r e spec t to v u lner able defendan ts, su c has ju v e n i l e s an d th ose with mental i m pair ment s of v a r i ous kinds, amiciNatio n al Assoc i atio n of CriminalDefense Lawyers et al. a sser tth at“[o]v e r r u lin g Jack son would b e pa rticula r ly detrimenta l .

. . b e ca us e of the confus ing ins t ruc -14 M O NTEJO v. LOUISIANA
S TEVENS , J., di s s e nting warnings g i ven in this case were sufficientto ensure Montejo’s waiver was both knowing and voluntary, the Court conveniently avoids any comment onthe actual advice Montejo received, which di d not adequately inform him of his relevant Si xth Amendment rights or alert hi m to the possible consequ e nces of waiving those rights. A defendan t’s decision to forgo counsel’s assis t ance an d speakopenly with police is a momentous one. Given the high stake s of making such a choice and the potential value of counsel’s advice and mediation at that critica l stage of the criminal proceedings, it is impe rative that a defendant possess “a f u ll awareness of both t h e nature of the right b e ing abandoned and the consequ e nces of th e decision to abandon it,” Moranv. Burbine , 47 5 U. S. 412, 421 (1986), before his waiver is deemed valid. See Iowav. Tovar , 541 U. S. 77, 81 (2004); Johnsonv. Zerbs t , 30 4 U. S. 458, 464 (1938). Because the administration of Miranda warnings wa s insufficient to ensure Montejo understood the Sixth Amendment right he was being asked to surrender, t h e record in this case provides no basis for concluding th at Montejo validly wai v ed his righ t to counsel, even in the absenceof Jackso n ’s enhanced protections. IV The Court’s decision to overrule Jacksonis unwar

ranted. Not only does it rests on a flawed doctrinal pre m -

—————— t i ons rega rding couns el t h a tt h ey woul d receive. At the i n itialhearing, th eywou l d likelylear nth at anatto rney was being appoi n ted for them, In a later custodial interrogation, howeve r, the y would be informed i n the tr aditiona l mannerof ‘ t heirr i gh t to c o unsel’ andr i gh t to have couns el ‘a ppointed’ if they a r e indigent, notwiths ta nding tha tcouns el had already been appointed in open co urt. These conflicting state m ents wou l d be c o nfu s in gto an yon e , bu t would be espec i a llybafflin gto defendants with mental dis abil i tie s orotherimpair ments.” Supple

mental Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae7–8.15 Cite as: 55 6 U

. S. ____ (2009)
S TEVENS , J., di s s e nting ise, but the dubious b e nefits it h o pes to ach i eve are fa r outweighed by the damage it doe s to the rul e of law an d the integrit y of the Si xth Amend m ent rightto counsel. Moreover, even apart from th e protections afforded by Jackson , t h e police interrogatio nin this case violated Jesse Mont ejo’s Sixth Amendment right to co unsel. I respectfully dissent._________________

_________________ 1 Cite as: 55 6 U

. S. ____ (2009)
B REYER , J., diss enting 

## SUPREME CO URT O F THE UNI TED STATES

No. 07–1 52 9
JESSE JAY MONT EJO, PETITIONER v. LOUISIANA ON WRIT OF CERTIORARI TO THE SUPREME COUR T OF LOUISIANA [M ay26, 2009 ] J USTICE B RE YE R , dissenting. I join J USTICE S TEVENS ’ dissentexcept for footnote 5. Although the principles of star e de cisisare not inflexible, I believe they bind the Court here. I reached a simila r conclusion in Arizonav. Gant , 556 U. S. ___, ___–___ (2009) (slip op., at 1–2) (B REYER , J., dissen t ing), and in several other recent cases. See, e.g. , Leeg in Cr e a t i ve Leath er Pro ducts, Inc. v. PSKS, Inc. , 551 U. S. 877, ___–

___ (2007) (slip op., at 17–19) (B REYER , J., dissenting); Paren ts Inv o lved in Community Schoolsv. Seattl e School Dist. No. 1 , 551 U. S. 701, ___–___ (2007) (sli p op., at 65– 66) (B REYE R , J., dissenting); Fed eral El ec tion Comm’nv. Wis c onsin Right to Lif e, Inc. , 551 U. S. 449, ___–___ (200 7) (slip op., at 31–32) (S OUTER , J. , dissenting); Bo wles v. Russell , 55 1 U. S. 205 , 219–220 (2007) (S OUTER , J., dis

senting); Gonzalesv. Carha r t , 550 U. S. 1 24, 190–191 (2007) (G IN SBURG , J., dissenting); Dis t ri ct of Columbiav. Hell er , 554 U. S. ___, ___–___ (20 08) (slip op. at 41–45) (S TEVENS , J ., dissentin g).