Also known as: deliberate elicitation · deliberately elicit · Massiah violation
Written by attorneys · grounded in primary & secondary sources — see below
Affirmative actions by government agents that intentionally prompt a charged defendant to make incriminating statements. The conduct violates the Sixth Amendment when it occurs after the right to counsel has attached and without a valid waiver.
Timothy exchanged messages on an encrypted app with a former colleague after indictment. The colleague had agreed with federal agents to draw out details about the charged stock trades. Timothy provided incriminating descriptions of the trades and his knowledge of inside information. The statements were obtained through deliberate elicitation after the right to counsel attached.
Detectives transported Williams across state lines after his indictment for murder. One officer spoke about the need to locate the victim's body for a proper burial before an impending snowstorm. Williams then directed officers to the burial site. The statements resulted from deliberate elicitation after the right to counsel had attached.
Select any source to read its text and confirm it supports the definition.
Innis sat in a police van after indictment on the weapon. Officers discussed the danger of a missing shotgun near a school for handicapped children. Innis then led officers to the weapon. The statements arose from deliberate elicitation after the right to counsel attached.
Havens shared a cell with an undercover officer after indictment. The officer asked about the location of stolen goods referenced in the charges. Havens provided details that linked him to the offense. The statements were the product of deliberate elicitation after attachment of the right to counsel.
Massiah met with a codefendant who had agreed to cooperate with federal agents after indictment. The codefendant carried a hidden transmitter and steered discussion toward the charged narcotics offenses. Massiah made incriminating admissions during the conversation. The statements were deliberately elicited without counsel present.
Pachtman interviewed a key witness outside the presence of counsel after charges were filed. The interview produced statements that the prosecutor later used to impeach the defendant at trial. The statements were obtained through deliberate elicitation after the right to counsel attached.
The right attaches at the initiation of adversary judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment. Once attached, government agents may not deliberately elicit incriminating statements without counsel or a valid waiver.
Supporting sources
No. The prohibition applies whenever the right has attached, regardless of custody status. Post-indictment conversations in restaurants, on the phone, or during voluntary meetings can still constitute deliberate elicitation if government agents steer the discussion toward charged offenses.
Supporting sources
No. The deliberately elicited test focuses on the intent of government agents to draw out statements about charged offenses after the right to counsel attaches. The Miranda test under Innis asks whether officers should have known their words or actions were reasonably likely to elicit an incriminating response and applies before formal charges.
Supporting sources
No. The Sixth Amendment right is offense-specific. Agents may question a defendant about separate, uncharged crimes even after indictment on other offenses because the right has not yet attached to the uncharged conduct.
Supporting sources
…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…