In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a right to counsel at all critical stages in his prosecution, it is essential to impose higher waiver standards for represented defendants. Thus, this Note argues that state and lower courts should adopt a rule that would render invalid any waiver of right to counsel given in response to police-initiated questioning, regardless of whether the questioning occurred in a custodial or non-custodial environment, provided the defendant who waived the right had already been formally charged and invoked his right to an attorney.
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