Also known as: deliberately elicit · deliberate elicitation · Massiah violation
Written by attorneys · grounded in primary & secondary sources — see below
Affirmative governmental action designed to prompt an indicted defendant to make incriminating statements about the charged offense. The action occurs after the Sixth Amendment right to counsel has attached and without a valid waiver.
Dustin Donovan was indicted for bank robbery and appointed counsel. Officers placed an informant in his cell and directed the informant to ask about the robbery proceeds. Donovan described hiding the money, and the statements were later offered at trial.
Darrell Duncan was indicted for armed robbery. The government paid an undisclosed inmate to share Duncan’s cell and engage him in conversation about the robbery. Duncan made incriminating admissions that the informant reported to prosecutors.
Diana Delgado sat in a holding cell after indictment. An informant was instructed only to listen. When the informant asked no questions and Delgado volunteered nothing about the charged offense, no statements were obtained through deliberate elicitation.
Select any source to read its text and confirm it supports the definition.
Darius Dixon met a cooperating co-defendant after indictment. Officers told the co-defendant to steer discussion toward the charged drug conspiracy. Dixon described the conspiracy’s operations during the meeting.
Denise Donovan had been indicted for prescription fraud. An undercover officer in her pod asked only about an uncharged billing scheme. Donovan’s statements concerned the separate scheme and did not implicate the charged offense.
Dwight Dorsey was indicted for robbery. An informant elicited statements about the robbery that the prosecution later sought to use for impeachment. The statements had been obtained without counsel after the right attached.
Deliberate elicitation requires affirmative governmental action to draw out statements about the charged offense. Passive listening by an informant who keeps his ears open does not violate the Sixth Amendment.
Supporting sources
No. The prohibition on deliberate elicitation applies only after formal adversary proceedings such as indictment have begun. Pre-indictment use of informants is governed by other doctrines.
Supporting sources
Yes. Once the right attaches to a charged offense, officers may still question a defendant about unrelated uncharged crimes without violating the Sixth Amendment.
Supporting sources
…at 397-399. That right, as we held in Massiah v. United States , 377 U. S. 201, 206, prohibits law enforcement officers from "deliberately elicit[ing]" incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the…