MONTEJO v. LOUISIANA

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778 OCTOBER TERM, 2008
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 ap
pointment 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 let
ter was admitted over defense objection, and he was convicted and sen
tenced 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 inter
rogation 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. 783–797.
(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. 783–785.
(b) On the other hand, Montejo’s solution is untenable as a theoreti
cal and doctrinal matter. Eliminating the invocation requirement en
tirely would depart fundamentally from the rationale of Jackson, whose
presumption was created by analogy to a similar prophylactic rule es
tablished 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 defend
ant who never asked for counsel has not yet made up his mind in the
first instance. Pp. 786–792.

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Syllabus
(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. 223, 234–235. The first
two cut in favor of abandoning 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 “reason
ing” 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 meas
ures 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 interroga
tion 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 un
solved and criminals unpunished when uncoerced confessions are ex
cluded and when officers are deterred from even trying to obtain confes
sions. 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. 792–797.
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. 797–799.
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 concur
ring opinion, in which Kennedy, J., joined, post, p. 799. Stevens, J., filed
a dissenting opinion, in which Souter and Ginsburg, JJ., joined, and in
which Breyer, J., joined, except for footnote 5, post, p. 801. Breyer, J.,
filed a dissenting opinion, post, p. 815.

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780 MONTEJO v. LOUISIANA
Opinion of the Court
Donald B. Verrilli, Jr., argued the cause for petitioner.
With him on the briefs were Ian Heath Gershengorn, Kath
erine A. Fallow, Matthew S. Hellman, William M. Hohen
garten, Jelpi P. Picou, and G. Ben Cohen.
Kathryn Landry argued the cause for respondent. With
her on the briefs were James D. “Buddy” Caldwell, S. Kyle
Duncan, Walter P. Reed, Houston C. Gascon III, and Scott
C. Gardner.*
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 interroga
*Briefs of amici curiae urging reversal were filed for the Louisiana
Public Defenders Association by G. Paul Marx; for the National Associa
tion of Criminal Defense Lawyers et al. by Jonathan L. Marcus, Barbara
Bergman, Steven Shapiro, Robin Dahlberg, and David S. Udell; and for
the National Legal Aid and Defender Association et al. by Catharine F.
Easterly and Sandra K. Levick.
Solicitor General Kagan, then-Acting Assistant Attorney General
Glavin, Deputy Solicitor General Dreeben, Nicole A. Saharsky, and Joel
M. Gershowitz filed a brief for the United States as amicus curiae.
Briefs of amici curiae were filed for the State of New Mexico et al. by
Gary K. King, Attorney General of New Mexico, and M. Victoria Wilson,
Assistant Attorney General, by Richard S. Gebelein, Chief Deputy Attor
ney General of Delaware, and by the Attorneys General for their respec
tive States as follows: Troy King of Alabama, Terry Goddard of Arizona,
John W. Suthers of Colorado, Bill McCollum of Florida, Lawrence G. Was
den of Idaho, Steve Six of Kansas, Douglas F. Gansler of Maryland, Kelly
A. Ayotte of New Hampshire, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Mark
L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Robert M. Mc-
Kenna of Washington, and Bruce A. Salzburg of Wyoming; and for the
Criminal Justice Institute of Harvard Law School by Stephen Singer.
A supplemental brief urging reversal was filed for Larry D. Thompson
et al. by Robert N. Weiner, Andrew T. Karron, and John A. Freedman.
A supplemental brief was filed for the Public Defender Service for the
District of Columbia et al. by Sandra K. Levick, Catharine F. Easterly,
and David L. McColgin.

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Opinion of the Court
tion 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 dis
gruntled former employee of Ferrari’s dry cleaning business.
Police sought to question Montejo, who was a known associ
ate 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. Dur
ing the interrogation, Montejo repeatedly changed his ac
count of the crime, at first claiming that he 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 bur
glary. 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 pre
liminary hearing required under state law.1 Although the
proceedings were not transcribed, the minute record indi
cates 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 De
fender 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
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).

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had earlier indicated he had thrown into a lake). After
some back-and-forth, the substance of which remains in dis
pute, 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 re
turn 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 mur
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 rel
evant here, the court rejected Montejo’s argument that
under the rule of Jackson, supra, the letter should have been
suppressed. 974 So. 2d, at 1261. Jackson held that “if po
lice 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 ap
pointment of counsel, he had made no such request or asser
tion. 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 interac
tion with the police. Id., at 1261. And because Montejo
had been read his Miranda rights and agreed to waive them,

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the Court answered that question in the affirmative, 974
So. 2d, at 1262, and upheld the conviction.
We granted certiorari. 554 U. S. 944 (2008).
II
Montejo and his amici raise a number of pragmatic objec
tions 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 “as
sert” his Sixth Amendment right at the preliminary hearing,
before the Jackson protections are triggered. If he does so,
the police may not initiate further interrogation in the ab
sence of counsel. But if the court on its own appoints coun
sel, 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

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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 defend
ant 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 defend
ant. How to categorize a defendant who merely 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 appoint
ment 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 “accept
ance” 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 in
voked his right to counsel, looking to his conduct at the pre
liminary hearing—his statements and gestures—and the to

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tality of the circumstances. Or, courts might simply deter
mine as a categorical matter that defendants in these
States—over half of those in the Union—simply have no op
portunity to assert their right to counsel at the hearing and
are therefore out of luck.
Neither approach is desirable. The former would be par
ticularly impractical in light of the fact that, as amici
describe, preliminary hearings are often rushed, and are fre
quently 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 ap
pointment 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) (allowing 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 introduc
ing arbitrary distinctions: Defendants in States that auto
matically appoint counsel would have no opportunity to in
voke 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.

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III
But if the Louisiana Supreme Court’s application of Jack
son 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, po
lice 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 judi
cial process has been initiated, the Sixth Amendment guar
antees a defendant the right to have counsel present at all
“critical” stages of the criminal proceedings. United 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

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. . . 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.” Pat
terson, supra, at 296.
The only question raised by this case, and the only one
addressed by the Jackson rule, is whether courts must pre
sume that such a waiver is invalid under certain circum
stances. 475 U. S., at 630, 633. We created such a pre
sumption in Jackson by analogy to a similar prophylactic
rule established to protect the Fifth Amendment-based Mi
randa right to have counsel present at any custodial interro
gation. Edwards v. Arizona, 451 U. S. 477 (1981), 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 state
ments 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 Ed
wards 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 defend
ants “actually inten[d] their request for counsel to encompass
representation during any further questioning,” id., at 632–

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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 “insuf
ficient to justify police-initiated 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.
In his dissent, Justice Stevens presents us with a revi
sionist view of Jackson. The defendants’ request for coun
sel, he contends, was important only because it proved that
counsel had been appointed. Such a non sequitur (nowhere
alluded to in the case) hardly needs rebuttal. Proceeding
from this fanciful premise, he claims that the decision actu
ally established “a rule designed to safeguard a defendant’s
right to rely on the assistance of counsel,” post, at 807 (here
inafter dissent), not one “designed to prevent police badger
ing,” ibid. 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 pres
sure, 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
2 The dissent responds that Jackson also ensures that the defendant’s
counsel receives notice of any interrogation, post, at 806, 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 pres
ent. Contrary to the dissent’s intimations, neither the advice nor the
presence of counsel is needed in order to effectuate a knowing waiver of

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B
With this understanding of what Jackson stands for and
whence it came, it should be clear that Montejo’s interpreta
tion of that decision—that no represented defendant can ever
be approached by the State and asked to consent to interro
gation—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 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 ex
ists to prohibit the police from inquiring. Edwards and
Jackson are meant to prevent police from badgering defend
ants into changing their minds about their rights, but a de
fendant 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 804. The question in Jackson, however, was not
whether respondents were entitled to counsel (they unques
tionably 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
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 786.

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presumption can seriously be entertained when a lawyer was
merely “secured” on the defendant’s behalf, by the State it
self, 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 at
taches, at least in those States that appoint counsel promptly
without request from the defendant. As the dissent in Jack
son pointed out, with no expressed disagreement from the
majority, the opinion “most assuredly [did] not hold that the
Edwards per se rule prohibiting all police-initiated interro
gations applies from the moment the defendant’s Sixth
Amendment right to counsel attaches, with or without a re
quest for counsel by the defendant.” 475 U. S., at 640 (opin
ion of Rehnquist, J.). That would have constituted a “shock
ingly 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 Amer
ican 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 person 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 nar
rower than the Model Rule. Broader, because Montejo
would apply it to all agents of the State, including the detec
tives 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

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freely—whereas a lawyer could be sanctioned for interview
ing 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 interpre
tation 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 enti
tled to be present—not the validity of a Sixth Amendment
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 re
quests 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 out
side the context of interrogation,” id., at 350; and to “sus
pects 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 descrip
tions 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
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 the 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

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The upshot is that even on Jackson’s own terms, it 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 unwork
able 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 ad
dressed 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,
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 Patter
son 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.

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and of course whether the decision was well reasoned.
Pearson v. Callahan, 555 U. S. 223, 234–235 (2009). 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 prose
cutors have been trained to comply with Jackson, see gener
ally Supplemental Brief 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 pro
tect 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).
4 The 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 809.
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 request
ing that counsel be appointed on his behalf.

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What does the Jackson rule actually achieve by way of
preventing unconstitutional conduct? Recall that the pur
pose of the rule is to preclude the State from badgering de
fendants into waiving their previously asserted rights. See
Harvey, 494 U. S., 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, 377 U. S., at 204.
Even though involuntary waivers are invalid even apart from
Jackson, see Patterson, 487 U. S., at 292, n. 4, mistakes are
of course possible when courts conduct case-by-case volun
tariness review. A bright-line rule like that adopted in
Jackson ensures that no fruits of interrogations made possi
ble by badgering-induced involuntary waivers are ever erro
neously 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 to
ward the same end. Under Miranda’s prophylactic protec
tion of the right against compelled self-incrimination, 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 prophy
lactic protection of the Edwards right, no subsequent inter
rogation 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

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“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., concur
ring), 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 brief,
that the doctrine established by Miranda and Edwards is
designed to protect Fifth Amendment, not Sixth Amend
ment, 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.
Monte jo also correctly observes that the Miranda-
Edwards regime is narrower than Jackson in one respect:
The former applies only in the context of custodial interroga
tion. 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 involun
tary waivers.
Jackson was policy driven, and if that policy is being ade
quately served through other means, there is no reason to

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retain its rule. Miranda and the cases that elaborate upon
it already guarantee not simply noncoercion in the tradi
tional sense, but what Justice Harlan referred to as “volun
tariness with a vengeance,” 384 U. S., at 505 (dissenting opin
ion). 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 ex
clusionary rule “is, of course, letting guilty and possibly dan
gerous criminals go free . . . .” Herring v. United States,
555 U. S. 135, 141 (2009). Jackson not only “operates to in
validate 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 (Ken
nedy, J., concurring), but also deters law enforcement offi
cers from even trying to obtain voluntary confessions. The
“ready ability to obtain uncoerced confessions is not an evil
but an unmitigated good.” McNeil, supra, at 181. Without
these confessions, crimes go unsolved and criminals unpun
ished. 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
5 The dissent claims that, in fact, few confessions have been suppressed
by federal courts applying Jackson. Post, at 808–809. If so, that is be
cause, as the dissent boasts, “generations of police officers have been
trained to refrain from approaching represented defendants,” post, at 809,
n. 4. Anyway, if the rule truly does not hinder law enforcement or make
much practical difference, see post, at 807–809, and nn. 3–4, then there is
no reason to be particularly exercised about its demise.

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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 have
in fact never held that a person can invoke his Miranda
rights anticipatorily, in a context other than ‘custodial
interrogation’ . . . .” McNeil, 501 U. S., at 182, n. 3. What
matters for Miranda and Edwards is what happens when
the defendant is approached for interrogation, and (if he con
sents) 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 truth-seeking
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 con
tend that his letter of apology should still have been sup
pressed under the rule of Edwards. If Montejo made a
clear assertion of the right to counsel when the officers ap
proached 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).

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Montejo understandably did not pursue an Edwards objec
tion, because Jackson served as the Sixth Amendment anal
ogy to Edwards and offered broader protections. Our deci
sion today, overruling Jackson, changes the legal landscape
and does so in part based on the protections already pro
vided by Edwards. Thus we think that a remand is appro
priate so that Montejo can pursue this alternative avenue
for relief. Montejo may also seek on 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 misrepresenta
tions by police as to whether he had been appointed a law
yer, 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 anal
ysis of the “knowing and voluntary” issue. Post, at 810–814.
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 Patter
son, 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

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Alito, J., concurring
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 812. The Court in Patterson did not
consider the result dubious, nor does the Court today.
* * *
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 concur
ring 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 incon
sistent with this opinion.
It is so ordered.
Justice Alito, with whom Justice Kennedy joins,
concurring.
Earlier this Term, in Arizona v. Gant, ante, p. 332, 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 proved to be emi
nently workable (indeed, had been adopted for precisely that
reason), and had engendered substantial law enforcement re
liance. See Gant, ante, at 358 (Alito, J., dissenting). The
Court took this step even though we were not asked to over
rule Belton, and this new rule is almost certain to lead to
a host of problems. See Gant, ante, at 363–365 (Alito,
J., dissenting); Megginson v. United States, post, p. 1230;
Grooms v. United States, post, p. 1231 (same).

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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 prece
dent was badly reasoned and produces erroneous . . . re
sults.” Gant, ante, at 353 (concurring opinion). This nar
row 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 Justice
Stevens’ dissent* is surprising. His dissent in the case at
hand criticizes the Court for “[a]cting on its own” in reconsid
ering Michigan v. Jackson, 475 U. S. 625 (1986). Post, at
804 (hereinafter dissent). 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 reli
ance interests of law enforcement,” post, at 809, but in Gant,
there were real and important law enforcement interests at
stake, see ante, at 358–360 (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.” Ante, at 349. 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 enforce
ment 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 808.
*One of the dissenters in the present case, Justice Breyer, also dis
sented in Gant and would have followed Belton on stare decisis grounds.
See ante, at 354–355. Thus, he would not overrule either Belton or Mich
igan v. Jackson, 475 U. S. 625 (1986).

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Stevens, J., dissenting
It is striking that precisely the same points were true in
Gant:
“[Belton’s] bright-line rule ha[d] provided law enforce
ment officers with clear guidance, allowed prosecutors
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 po
lice interrogation.” Post, at 808.
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 810. But in
Gant, the Court had no compunction about casting aside a
28-year-old bright-line rule. I can only assume that the dis
sent thinks that our constitutional precedents are like cer
tain wines, which are most treasured when they are neither
too young nor too old, and that Jackson, supra, at 23, is in
its prime, whereas Belton, supra, 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 807 (quoting Payne v. Tennessee, 501 U. S. 808, 827–828
(1991)). The treatment of stare decisis in Gant fully sup
ports the decision in the present case.
Justice Stevens, with whom Justice Souter and Jus
tice Ginsburg join, and with whom Justice Breyer joins
except for footnote 5, dissenting.
Today the Court properly concludes that the Louisiana Su
preme Court’s parsimonious reading of our decision in Michi
gan 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 Amend
ment protections established in Jackson have caused any
harm to the workings of the criminal justice system, the

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Court rejects Jackson outright on the ground that it is “un
tenable as a theoretical and doctrinal matter.” Ante, at 786.
That conclusion rests on a misinterpretation of Jackson’s ra
tionale and a gross undervaluation of the rule of stare decisis.
The police interrogation in this case clearly violated petition
er’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. 191, 198 (2008) (internal quotation 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 interro
gating him following his “72-hour hearing” outside the pres
ence of, and without prior notice to, his lawyer. Brief for
Petitioner 7. The Louisiana Supreme Court rejected Mon
tejo’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 Mon

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tejo because his counsel was appointed automatically; Mon
tejo had not explicitly requested counsel or affirmatively ac
cepted 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 anoma
lous distinctions between defendants in different States,”
ante, at 783. Neither option is tolerable, and neither is com
pelled by Jackson itself.
Our decision in Jackson involved two consolidated cases,
both arising in the State of Michigan. Under Michigan law
in effect at that time, when a defendant appeared for ar
raignment the court was required to inform him that counsel
would be provided if he was financially needy and he re
quested 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 affida
vit of indigency, and the other by responding affirmatively
to a question posed to him by the court. See App. in Michi
gan v. Jackson, O. T. 1984, No. 84–1531, p. 168; App. in Michi
gan 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’ re
quests 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 sig
nificance 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 784 (acknowledging that we

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had no occasion to decide in Jackson how its rule would
apply in States that do not make appointment of counsel con
tingent 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 se
cured 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 re
quests counsel,” Jackson alters the waiver analysis); Patter
son, 487 U. S., at 290, n. 3 (noting “as a matter of some sig
nificance” to the constitutional analysis that defendant had
“not retained, or accepted by appointment, a lawyer to rep
resent 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 Su
preme Court’s holding is “troublesome,” ante, at 784, “im
practical,” ante, at 785, and “unsound,” ante, at 786. In
stead 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”
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 re
quests the assistance of counsel.” 487 U. S., at 290, n. 3.

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problem of its own imagining, see ante, at 786. 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 789; see also ante,
at 794, just as the rule adopted in Edwards v. Arizona, 451
U. S. 477 (1981), was designed to prevent police from coerc
ing unindicted suspects into revoking their requests for
counsel at interrogation. Operating on that limited under
standing of the purpose behind Jackson’s protective rule, the
Court concludes that Jackson provides no safeguard not al
ready secured by this Court’s Fifth Amendment jurispru
dence. See Miranda v. Arizona, 384 U. S. 436 (1966) (re
quiring defendants to be admonished of their right to counsel
prior to custodial interrogation); Edwards, 451 U. S. 477 (pro
hibiting 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 de
cision 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 men
tion the antibadgering considerations that provide the basis
for the Court’s decision today. Instead, Jackson relied pri
marily 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

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806 MONTEJO v. LOUISIANA
Stevens, J., dissenting
(quoting Maine v. Moulton, 474 U. S. 159, 176 (1985)). Un
derscoring 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 af
fords unindicted suspects. See, e. g., 475 U. S., at 632 (“[T]he
difference between the legal basis for the rule applied in Ed
wards and the Sixth Amendment claim asserted in these
cases actually provides additional support for the applica
tion 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 Ed
wards 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 deci
sion 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
2 The 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 788. 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 crimi
nal proceedings. A lawyer can provide her client with advice regarding
the legal and practical options available to him; the potential conse
quences, 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.

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Stevens, J., dissenting
vulnerable to serious reconsideration.” Vasquez v. Hillery,
474 U. S. 254, 266 (1986). While stare decisis is not “an inex
orable command,” we adhere to it as “the preferred course
because it promotes the evenhanded, predictable, and con
sistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.” Payne v. Tennessee, 501
U. S. 808, 827–828 (1991).
Paying lipservice to the rule of stare decisis, the majority
acknowledges that the Court must consider many factors be
fore taking the dramatic step of overruling a past decision.
See ante, at 792–793. Specifically, the majority focuses on
four considerations: the reasoning of the decision, the work
ability of the rule, the reliance interests at stake, and the
antiquity of the precedent. The Court exaggerates the con
siderations 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 793—does not jus
tify continued application of the rule it created. The bal
ancing 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
3 Even accepting the majority’s improper framing of Jackson’s founda
tion, 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 793 (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

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808 MONTEJO v. LOUISIANA
Stevens, J., dissenting
Next, in order to reach the conclusion that the Jackson
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 interpreta
tion of that rule is practically workable. The answer to that
question, of course, is no. When framed more broadly, how
ever, the evidence is overwhelming that Jackson’s simple,
bright-line rule has done more to advance effective law en
forcement than to undermine it.
In a supplemental brief submitted by lawyers and judges
with extensive experience in law enforcement and prosecu
tion, amici Larry D. Thompson et al. argue persuasively that
Jackson’s bright-line rule has provided law enforcement of
ficers 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 inter
rogation. See generally Thompson Supplemental Brief 6.
While amici acknowledge that “Jackson reduces opportuni
ties 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
that the application of Jackson’s protective rule rarely impedes prosecu
tion. 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).
4 Further supporting the workability of the Jackson rule is the fact that
it aligns with the professional standards and norms that already govern

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809 Cite as: 556 U. S. 778 (2009)
Stevens, J., dissenting
evidence suggesting 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 793. 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 Amend
ment’s guarantee, and is surely worthy of greater consider
ation 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
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 Service for the Dis
trict of Columbia et al. as Amici Curiae 1a–15a (setting forth state rules
governing contact with represented persons); ABA Model Rule of Profes
sional Conduct 4.2 (2008); 28 U. S. C. § 530B(a) (making state rules of pro
fessional conduct applicable to federal attorneys), and generations of police
officers have been trained to refrain from approaching represented defend
ants, 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 deci
sion 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.

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810 MONTEJO v. LOUISIANA
Stevens, J., dissenting
concludes that the fact Jackson is “only two decades old”
cuts “in favor of abandoning” the rule it established. Ante,
at 792–793. I would have thought that the 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 re
mains 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 con
fidence 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. To
day’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 fol
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,
ante, p. 355. 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 af
firmed the narrow interpretation of Belton’s holding adopted by the Ari
zona 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.

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811 Cite as: 556 U. S. 778 (2009)
Stevens, J., dissenting
lowing his 72-hour hearing. Because police questioned Mon
tejo without notice to, and outside the presence of, his law
yer, the 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 ac
cused and a state agent.” Moulton, 474 U. S., at 176. The
Sixth Amendment entitles indicted defendants to have coun
sel notified of and present during critical confrontations with
the State throughout the pretrial process. Given the reali
ties 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 post
indictment 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 im
pending lineup. Accordingly, counsel’s presence is a “requi
site 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 repre
sented 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 interroga
tion, 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?”).

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812 MONTEJO v. LOUISIANA
Stevens, J., dissenting
The Court avoids confronting the serious Sixth Amend
ment concerns raised by the police interrogation in this case
by assuming that Montejo validly waived his Sixth Amend
ment rights before submitting to interrogation.6 It does so
by summarily concluding that “doctrines ensuring voluntari
ness of the Fifth Amendment waiver simultaneously ensure
the voluntariness of the Sixth Amendment waiver,” ante, at
795; 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 ju
risprudence, it commits the same error by assuming that
the Miranda warnings given in this case, designed purely
to safeguard the Fif th 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, po
lice 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 . . . extends beyond Mi
6 The 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 798. While such police decep
tion 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.

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Stevens, J., dissenting
randa’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 pur
poses.” 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 as
sumption that those warnings make clear to defendants the
assistance a lawyer can render during postindictment inter
rogation. See 487 U. S., at 307 (dissenting opinion). Be
cause 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 Amend
ment 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 unrep
resented 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 de
fendant who has already secured counsel is more likely to
confound than enlighten.8 By glibly assuming that the Mi
7 Under Miranda, a suspect must be “warned prior to any questioning
that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an
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.
8 With respect to vulnerable defendants, such as juveniles and those with
mental impairments of various kinds, amici National Association of Crimi
nal Defense Lawyers et al. assert that “[o]verruling Jackson would be
particularly detrimental . . . because of the confusing instructions regard
ing counsel that they would receive. At the initial hearing, they would
likely learn that an attorney was being appointed for them. In a later

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Stevens, J., dissenting
randa 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 Mon
tejo received, which did not adequately inform him of his
relevant Sixth Amendment rights or alert him to the possi
ble 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 pos
sess “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 pro
vides 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 rest on a flawed doctrinal premise, 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
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 ap
pointed in open court. These conflicting statements would be confusing
to anyone, but would be especially baffling to defendants with mental disa
bilities or other impairments.” Supplemental Brief for National Associa
tion of Criminal Defense Lawyers et al. as Amici Curiae 7–8.

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815 Cite as: 556 U. S. 778 (2009)
Breyer, J., dissenting
from the protections afforded by Jackson, the police interro
gation in this case violated Jesse Montejo’s Sixth Amend
ment right to counsel.
I respectfully dissent.
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 con
clusion in Arizona v. Gant, ante, at 354–355 (dissenting opin
ion), and in several other recent cases. See, e. g., Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877,
923–929 (2007) (same); Parents Involved in Community
Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 865–866
(2007) (same); Federal Election Comm’n v. Wisconsin Right
to Life, Inc., 551 U. S. 449, 534–536 (2007) (Souter, J., dis
senting); 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 Colum
bia v. Heller, 554 U. S. 570, 675–679 (2008) (Stevens, J.,
dissenting).