Also known as: exconsulto · deliberately · advisedly
Written by attorneys · grounded in primary & secondary sources — see below
An adverbial phrase denoting that an act was performed after consultation or with deliberation. The phrase identifies conduct undertaken with awareness of relevant facts and a conscious choice to proceed rather than through inadvertence or impulse.
After indictment, officers placed an informant in Emanuel Escobar's cell. The informant engaged Escobar in conversations specifically designed to draw out details about the charged robbery. Because the statements were obtained through this planned interaction rather than casual listening, the elicitation occurred ex consulto.
Eric Espinoza contracted to perform at a specific amphitheater that a landslide later destroyed. The promoter had no clause shifting the risk of venue loss and had previously relocated events when sites became unavailable. The promoter's failure to secure an alternative therefore reflected a conscious decision made ex consulto rather than an unforeseen contingency.
Select any source to read its text and confirm it supports the definition.
Officers placed Edith Eberhardt's cellmate in her cell after indictment but gave no instructions to ask questions. The cellmate merely listened and later reported statements. Because the cellmate took no affirmative steps designed to prompt remarks, the government did not act ex consulto.
After indictment, police arranged for Emma Erickson's co-defendant to wear a wire during jail visits. The co-defendant steered discussions toward the charged offense under police direction. The resulting statements were obtained ex consulto through this deliberate setup.
Police questioned Erika Echevarria in custody before any charges were filed and without counsel. The questioning produced incriminating statements about an uncharged offense. Because adversary proceedings had not yet begun, the elicitation did not occur ex consulto within the Sixth Amendment framework.
After indictment, the government paid Eileen Epstein to share a cell with the defendant and to draw out statements about the charged murder. Epstein received compensation contingent on obtaining useful information. The arrangement was executed ex consulto through this compensated and directed effort.
Ex consulto requires a conscious choice to act after awareness of the relevant facts. In right-to-counsel cases, this means the government must take affirmative steps designed to elicit statements rather than merely listen passively. Passive placement of an informant without further direction does not satisfy the standard.
The phrase can be established by circumstantial evidence showing that the actor knowingly created conditions to obtain the desired result. Courts examine whether the government arranged recording devices, gave instructions to informants, or compensated them for information.
The right attaches only after adversary judicial proceedings have begun. Pre-charge custodial questioning, even if deliberate, falls outside the protection because the Sixth Amendment prohibition on deliberate elicitation applies solely in the post-charge setting.
No. When a party knows of a risk and consciously assumes it without protective language, the event does not discharge the duty. The basic-assumption test fails when the party deliberately chose to proceed despite awareness of the contingency.
…takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, regularly' use, or permanently' occupy, space or a thing which theretofore was understood to be under private ownership."…