Can the use in evidence of incriminating statements made by a defendant which were deliberately elicited by a government agent in the absence of counsel after criminal proceedings have been initiated against him?

Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246] prohibits the use in evidence of incriminating statements made by a defendant which were deliberately elicited by a government agent in the absence of counsel after criminal proceedings have been initiated against him. The agent need not be a government employee, and the agency relationship need not be explicit or formal. Rather, it "may be 'inferred from evidence that the parties behaved as though there were an agreement between them, following a particular course of conduct' over a period of time. [Citation.]" (In re Neely (1993) 6 Cal.4th 901, 915 (Neely).) The critical issue for purposes of Massiah is whether there has been a " 'knowing exploitation' of an opportunity to coax information from a formally charged suspect in the absence of his lawyer. [Citations.]" (People v. Gonzalez

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