Also known as: deliberate elicitation · deliberately elicited · deliberately eliciting · elicitation
Written by attorneys · grounded in primary & secondary sources — see below
Government action by which law enforcement agents actively prompt or induce a charged defendant to make incriminating statements. The conduct occurs after the Sixth Amendment right to counsel has attached and without counsel present or a valid waiver.
Darius Dixon sat in county jail after his indictment for mail fraud. Postal inspectors recruited his cellmate to ask targeted questions about the charged payouts and wired the cell for audio. Dixon described the scheme in detail during the prompted exchanges. The recordings resulted from government-orchestrated prompting after the right to counsel attached.
Denise Donovan had been indicted for billing fraud and retained counsel. Investigators directed her codefendant to arrange a private meeting and instructed him to draw out details of the charged scheme. The codefendant wore a recorder and steered the discussion to the indicted conduct. Donovan provided descriptions of the fraud during the orchestrated conversation.
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Darrell Duncan was indicted on smuggling charges. Agents placed a cooperating inmate in his cell and told the inmate to ask targeted questions about the charged containers. The inmate initiated pointed exchanges during casual talk. Duncan described the smuggling methods in response to the prompted questions.
Delilah Duran faced arson charges after an information was filed. Investigators recruited another detainee and directed him to ask specific questions about accelerants and timing in the dining room fire named in the charging document. The detainee initiated pointed conversations on those topics while they shared a cell. Duran responded with descriptions of the charged conduct.
Dwight Dorsey was indicted for bid rigging. An undercover officer posing as a fellow inmate steered conversations toward an uncharged sabotage plan. Dorsey described the sabotage in detail during the exchanges. The statements concerned conduct separate from the indicted offense.
Dominic Drake was indicted for falsifying loan applications. Detectives recruited a former colleague to meet Drake for lunch and instructed him to focus on the five charged deals. The colleague repeatedly steered the conversation to credit alterations on those files and recorded the responses. Drake described the methods used during the directed discussion.
No. The prohibition applies when the government uses any agent, including a cooperating inmate or codefendant, to draw out statements about the charged offense after the right to counsel attaches. The key is whether the government orchestrated the prompting, not whether a badge was visible.
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Passive listening occurs when an informant is told only to keep ears open and mostly listens while the defendant volunteers information. Deliberate elicitation arises when the informant takes affirmative steps beyond listening that are designed to prompt incriminating remarks about the charged offense.
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No. The right is offense-specific and attaches only to the charged offense. Agents may deliberately elicit statements about separate, uncharged conduct even after indictment on another matter because the right has not attached to the uncharged crime.
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No. The analysis focuses on whether the government directed an agent to prompt statements about the charged offense after attachment. A public restaurant or relaxed backstage tour does not avoid a violation if the government orchestrated the prompting without counsel or waiver.
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…absence of his counsel." Id. , at 206. Williams I held that Detective Leaming had violated "the clear rule of Massiah " by deliberately eliciting incriminating statements from respondent during the pendency of the adversarial process and outside of that process. See 430 U. S., at 399-401. The violation was aggravated by the fact that…