In 1986 in a decision written by Justice Stevens, Michigan v. Jackson the Supreme Court ruled that after a defendant requests the appointment of counsel at arraignment any contact between him and the government must be initiated by the defendant. The police cannot contact the defendant and attempt to get a confession. Without such a rule the police can go behind counsel’s back in an attempt to get a confession or a defendant can be coerced into confessing.
The Obama administration filed an amicus brief in Montejo v. Louisiana asking the Supreme Court to overrule Jackson. The solicitor general argues that the purpose of the Sixth Amendment is to protect the adversarial process but as she admits and as the Supreme Court has often stated much of what is important in the defense of a defendant occurs outside the courtroom. For example plea bargaining may occur in a telephone conversation.
She further argues that it would be sufficient to use a Miranda type warning to waive the right to counsel. While Miranda has limited efficiency prior to the appointment of counsel, a waiver of the right to counsel is certainly better if the defendant has the advice of counsel. With counsel available why not use him or her. Certainly their may be times when a confession is appropriate. Even if counsel does not feel it is appropriate, counsel’s duty to represent the client includes the duty to help the client confess even if counsel does not feel it is appropriate but the defendant so desires.
The government argues that the Jackson rule has limited but significant costs. It points out that most prosecutors are prevented from conversing with defendants due to state ethical rules preventing lawyers from conversing with represented individuals. The very presence of these ethical rules points to the possibility of coercion and the undermining of counsel inherent in the situation if Johnson is overruled. But still if Jackson is overruled police will be able to initiate and coerce defendants into waiving their Fifth Amendment right to remain silent and their Sixth Amendment right to counsel. The injury to the integrity of our courts is not insignificant. Even a few coerced or forced confessions result in the degradation of the United States justice system.
Finally the solicitor general argues that Jackson has been undermined by subsequent decisions. While the decision has been limited in several cases that is no reason to abolish the basic rule which remains strong.