Legal Definitions - deliberate elicitation

Deliberate Elicitation refers to a specific tactic in criminal procedure where law enforcement agents intentionally and often subtly try to obtain incriminating statements from a suspect. This tactic becomes legally problematic when it occurs after the suspect's Sixth Amendment right to legal counsel has formally begun (typically once formal charges have been filed or an initial court appearance has taken place) and without the suspect's lawyer present or the suspect having clearly waived their right to counsel.

The key elements are that the law enforcement action is:

• Purposeful: The agents intend to get information from the suspect.
• Covert or Indirect: It's not a formal, overt interrogation where the suspect is clearly aware they are being questioned by police.
• Incriminating: The goal is to elicit statements that could be used against the suspect in court.
• After Right to Counsel Attaches: This is crucial. The suspect has a constitutional right to a lawyer at this stage.
• Without Waiver: The suspect has not voluntarily given up their right to have a lawyer present.

If law enforcement engages in deliberate elicitation under these circumstances, any statements obtained are considered a violation of the suspect's Sixth Amendment rights and generally cannot be used as evidence against them in court.

Here are some examples to illustrate this concept:

• Jailhouse Informant: Imagine a suspect, Mr. Henderson, has been formally charged with a crime and is awaiting trial in jail. His lawyer has already been appointed. Unbeknownst to Mr. Henderson, the police place an undercover informant in his cell, instructing the informant to strike up conversations and try to get Mr. Henderson to talk about the crime. The informant might express sympathy or pretend to be a fellow criminal seeking advice. If Mr. Henderson makes incriminating statements to the informant, these statements would likely be inadmissible because the police purposefully used the informant to elicit information after Mr. Henderson's right to counsel had attached, without his lawyer present.

• Undercover Officer Outside Custody: Ms. Rodriguez has been formally charged with fraud and released on bail. Her lawyer has advised her not to discuss the case with anyone. An undercover police officer, posing as a potential business partner, approaches Ms. Rodriguez at a social event. The officer subtly steers the conversation towards financial dealings, eventually asking Ms. Rodriguez about the specifics of her current legal troubles, implying they could "help" her. If Ms. Rodriguez, believing she is speaking to a sympathetic peer, makes statements that incriminate her, these statements would be considered deliberately elicited and thus inadmissible, as the officer intentionally sought to obtain information after her right to counsel attached and outside the presence of her attorney.

• Subtle Remarks During Transport: Mr. Chen has been arrested, formally charged, and has clearly invoked his right to counsel. While being transported by a police officer from the courthouse back to the jail, the officer, without directly asking questions about the crime, makes comments like, "It's a tough situation you're in. Sometimes people feel a lot better if they just get everything off their chest." The officer's intention is not merely to make small talk, but to subtly encourage Mr. Chen to volunteer information about the crime. If Mr. Chen then makes an incriminating statement, it could be argued that the officer's remarks constituted deliberate elicitation, as they were purposefully designed to draw out a response after Mr. Chen's right to counsel had attached and without his lawyer present.