Also known as: deliberately elicit · deliberately elicited · Massiah violation
Written by attorneys · grounded in primary & secondary sources — see below
Conduct by which government agents purposefully and covertly draw incriminating statements from a defendant after the Sixth Amendment right to counsel has attached. The conduct occurs without counsel present and without a valid waiver of the right.
Select any source to read its text and confirm it supports the definition.
Dominic Drake was indicted for securities fraud. Federal agents visited his home the next day and questioned him at length about the charged trades without counsel present and without obtaining any waiver. Drake made several incriminating statements during the conversation. The statements were obtained through deliberate elicitation after the right to counsel had attached.
Demetrius Douglas was indicted for embezzlement and placed in a cell with a known informant. Officers promised the informant favorable treatment if he could draw out details about the charged transfers. The informant engaged Douglas in extended conversations that produced incriminating admissions about the indicted conduct. The statements resulted from deliberate elicitation after attachment of the right to counsel.
David Dawson was indicted on drug charges. Officers equipped his indicted co-defendant with a recording device and sent him to meet Dawson. The co-defendant steered the discussion to the charged transactions and recorded Dawson's admissions. The recorded statements were the product of deliberate elicitation after the right to counsel attached.
Dorothy Daniels was indicted for theft. Officers wired her indicted codefendant and instructed him to discuss the charged scheme during their next meeting. The codefendant repeatedly returned the conversation to the indicted conduct and captured Daniels's descriptions of the theft methods. The statements were obtained by deliberate elicitation after attachment of the right to counsel.
Dustin Donovan was indicted for smuggling. At trial the government sought to impeach his testimony with statements he had made to an informant after indictment. The statements had been deliberately elicited without counsel or waiver. The statements could not be used because they were the product of deliberate elicitation after the right attached.
Daphne Doyle was indicted for bribery. A government informant was placed in her cell and directed to obtain details about the charged payments. The informant elicited admissions that prosecutors later sought to introduce at trial. The statements were inadmissible because they were obtained through deliberate elicitation after the right to counsel had attached.
The right attaches upon the initiation of adversary judicial proceedings, such as indictment or information. Once attached, government agents may not deliberately elicit statements about the charged offense without counsel or a valid waiver.
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No. The prohibition applies to any purposeful government action designed to draw out incriminating statements about the charged offense after attachment, including conversations with wired informants or cellmates acting as agents.
…Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." Id. , at 206. Williams I held that Detective Leaming had violated "the clear rule of Massiah " by deliberately…
…Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government agents had deliberately elicited
…Stevens, dissenting. The Court upholds the admission at trial of illegally seized evidence to impeach a defendant’s testimony deliberately elicited
…must be fully honored." 384 U. S., at 467. [^maj-19]: In Brewer v. Williams , 430 U. S. 387, 398-399, the Court applied the "deliberately elicited
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Yes. The Sixth Amendment protection bars deliberate elicitation only about the charged offense for which the right has attached. Agents may question a defendant about unrelated, uncharged crimes without violating the rule.
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An informant who merely listens and reports voluntary statements does not violate the rule. Active steps such as asking targeted questions or steering conversation toward the charged offense constitute deliberate elicitation.
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No. The rule focuses on government intent and action rather than location. Deliberate elicitation violates the Sixth Amendment whether the conversation occurs in custody, in a public restaurant, or during a casual meeting.
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