What is the test for establishing that a government agent deliberately elicits from a defendant to make incriminating statements?

California, United States of America


The following excerpt is from People v. Young, E069694 (Cal. App. 2019):

"[W]hen, after adversarial judicial criminal proceedings have been initiated and in the unwaived absence of counsel, a government agent deliberately elicits from a defendant incriminating statements, those statements are inadmissible at a trial on the charges to which the statements pertain. [Citations.] Such a Sixth Amendment violation occurs when the government intentionally creates or knowingly exploits a situation likely to induce the defendant to make incriminating statements without the assistance of counsel, but not when the government obtains such statements through happenstance or luck. [Citations.] '"Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements."'" (People v. Dement (2011) 53 Cal.4th 1, 33 (Dement), abrogated on another ground by People v. Rangel, 62 Cal.4th 1192, 1216.)

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