§ 25.05 Requirement of "Deliberate Elicitation"

• Jurisdiction: North Carolina

§ 25.05 Requirement of "Deliberate Elicitation"⁶⁸

[A] "Deliberate Elicitation" versus "Interrogation"

Although Massiah v. United States⁶⁹ prohibits "deliberate elicitation" — those were the words in its holding — Justice Potter Stewart stated in the opinion that the accused in that case was "under interrogation" by C, a covert agent. The use of the word "interrogation" in the opinion was misleading as there was no evidence presented that C ever questioned M, the accused; instead, they had "lengthy conversations."

The Court confused matters further in Brewer v. Williams.⁷⁰ In Williams, W was arrested and arraigned for the abduction of a child believed to have been killed. While being transported in a police car from one part of the state to another, a police officer subjected W to what has come to be known as "the Christian burial speech." In the speech, the officer prefaced his comments to W by saying, "I want to give you something to think about. . . ." He concluded his remarks by indicating, "I do not want you to answer me. I don't want to discuss it any further. Just think about it. . . ." In between, the officer, playing on W's religious beliefs and psychological vulnerability as an escaped mental patient, expressed concern regarding the possibility that the little girl's body, which had not been discovered, would soon be buried under the Iowa winter's snow, thus depriving her parents of a chance to give the victim "a Christian burial." Sometime later in the police car, W made incriminating statements and agreed to show the police where he had buried the victim.

At no time during the "speech" did the officer question W. Nonetheless, the Court described "the clear rule of Massiah" to be that, once judicial criminal proceedings commence, the accused "has a right to legal representation when the government interrogates him." It also stated that "no such constitutional protection would have come into play if there had been no interrogation." And it described the burial speech as "tantamount to interrogation." Yet, in language reminiscent of Massiah, the Court remarked that the officer "deliberately and designedly set out to elicit information . . . just as surely as — and perhaps more effectively than — if he had formally interrogated him."

This language in Williams suggested the possibility that the terms "deliberate elicitation" and "interrogation" were constitutional synonyms. If they were, the Court's Miranda jurisprudence relating to "custodial interrogation" might have applied in the Sixth Amendment context, and vice-versa. However, in Rhode Island v. Innis,⁷¹ the first Supreme Court case to define "interrogation" under Miranda, the Court indicated that it was erroneous to suggest "that the definition of 'interrogation' under Miranda is informed by this Court's [Sixth Amendment] decision[s]. . . . The definitions of 'interrogation' under the Fifth and Sixth Amendments, if indeed the term 'interrogation' is even apt in the Sixth Amendment context, are not necessarily interchangeable. .. ."⁷² And later in Fellers v. United States,⁷³ the Court again observed that "we have expressly distinguished [the Sixth Amendment 'deliberate elicitation'] standard from the Fifth Amendment custodial-interrogation standard."

The meaning of "deliberate elicitation" in the Sixth Amendment context is described more fully below. However, in view of the Court's warnings in Innis and Fellers, it is important to treat separately the Sixth Amendment (triggered by "deliberate elicitation") and Fifth Amendment ("custodial interrogation") versions of the right to counsel.

[B] What Does "Deliberate" Mean?

[1] "Deliberate" as "Purposeful"

"Deliberate elicitation" uncontroversially occurs when a government agent purposely elicits an incriminating statement from the accused, i.e., when it is her conscious object to obtain a statement from the defendant. For example, purposeful (and, therefore, deliberate) elicitation occurs when an officer formally interrogates the accused person. Or, as in Massiah, it occurs when an undercover agent engages the accused in a conversation in order to obtain incriminating comments. Or, as in Brewer v. Williams, the Sixth Amendment is triggered when an officer makes statements designed to play on the conscience of the accused in order to induce incriminating remarks.

Massiah's "deliberate elicitation" differs from the Miranda-Innis concept of "interrogation"⁷⁴ in that the former test centers on the subjective motivation of the officer, whereas the latter standard focuses on the suspect and is based on an objective finding that the process will likely result in incriminating information. Thus, there can be a Miranda "interrogation" based on negligent...