One of the major problems of American criminal procedure is the seeming tension between the breadth of the constitutional rights that protect defendants and the ease with which those rights may be waived. In general, waiver doctrines make sense on the assumption that the rights being waived often aim to protect persons other than those who assert them or interests other than those upon which the police have infringed. Once one accepts this view of the relevant rights, waiver doctrines that permit police to take advantage of defendants' mistakes, and even to engage in active deception, may make fairly good sense. The doctrine governing waiver of the sixth amendment right to counsel in informal pretrial settings is hardest to explain, and I suggest that its incoherence reflects the underlying problems with using waiver doctrine to protect the interests of criminal defendants.
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