Concept

Introduction

Deliberate elicitation

Deliberate Elicitation Under Massiah

Introduction

Two different constitutional guarantees can put a lawyer between the police and a person about to talk, and they ask different questions. Miranda v. Arizona rests on the Fifth Amendment privilege against self-incrimination and governs custodial interrogation, meaning questioning that officers initiate after a person has been taken into custody or deprived of freedom of action in any significant way.¹ The concern there is compulsion: custody plus questioning is treated as inherently coercive, so warnings and a waiver must come first.² The Sixth Amendment, which guarantees the accused the assistance of counsel in criminal prosecutions, starts from a different place. It was originally understood as a trial right, and it reached the investigative stage only as organized police forces grew and the Court recognized that the period between arraignment and trial is when consultation and preparation matter most.³

That history explains the trigger for the Sixth Amendment test. The right attaches at or after the time judicial proceedings are initiated, whether by formal charge, preliminary hearing, indictment, information, or arraignment.⁴ From that point the person is no longer just a suspect under investigation. The accused faces a prosecution, and the government may not use its investigative power to extract the accused's own incriminating words while counsel is absent. The governing rule comes from Massiah v. United States: once adversary judicial proceedings have begun, the Sixth Amendment prohibits law enforcement from deliberately eliciting incriminating statements from the defendant in the absence of counsel or a valid waiver.⁵ Deliberate elicitation is the purposeful, usually covert, drawing forth of an incriminating response from someone whose right has attached and who has not waived it.⁶ Because the test looks at the government's deliberate conduct, the question is whether officers or their agents set out to draw statements out, and the label interrogation does not decide it. The Court has said the Sixth Amendment right can apply even when there is no interrogation and no Fifth Amendment applicability.⁷ An undercover agent who conceals that role, or a conversation with a defendant who is out on bail and not in custody, can therefore violate the Sixth Amendment in settings where Miranda would never apply.⁸

Exam Analysis Steps

Because each question in a Sixth Amendment problem depends on the answer to the one before it, the analysis runs in a fixed order, and the later steps matter only if the earlier ones come out in the defendant's favor. The steps are these:

Ask whether the right has attached, meaning whether formal judicial proceedings had begun against the defendant when the statements were obtained.
Ask whether a government agent, including an informant or cooperating accomplice, deliberately elicited the statements outside counsel's presence.
Ask whether the defendant validly waived the right to counsel before making the statements.
If there was a violation, ask for what purposes the statements may still be used, in the prosecution's case-in-chief or only to impeach the defendant's testimony.

The lesson begins with Massiah itself, where an indicted defendant free on bail was drawn into incriminating conversation by a cooperating accomplice, and it then tests the boundaries of that rule in the cases that follow.

Deliberate Elicitation Under Massiah

Introduction

Endnotes8