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People v. Whitt8/27/1984
6 F.2d at pp. 637-638.) The court found it immaterial that the informant had not initiated any conversation with Ross. The informant was able to obtain the desired information without asking questions. He obtained it through his "ability to 'ingratiate' himself with criminals" and to encourage their confidences. (Id., at p. 638.) This ability "was part of his stock in trade." (Ibid.) It was in fact the very quality which enabled him to bargain with the government for probation in exchange for jailhouse information. The government was well aware of this ability when it struck its bargain with the informant.
In light of the government's knowledge of the informant's ability to elicit confidences, the Sampol court found it irrelevant that the government had not directed him towards Ross or towards any other particular inmate. By giving the informant a powerful inducement to bring back incriminating
statements from any inmate, the "government trolled in the jail, using [the informant] as bait, and was ready to net any unwary inmate who rose to the lure." (United States v. Sampol, supra, 636 F.2d at p. 638.) Thus, any statements the informant obtained after the date his bargain was struck with the government were "deliberately elicited" and were inadmissible under Henry.
In sum, the critical inquiry is whether the state has created a situation likely to provide it with incriminating statements from an accused. If it has, it may not disclaim responsibility for this information by the simple device of telling an informant to "listen but don't ask." Thus, the trial court's findings that deLoach was told not to question Whitt and that he did not do so are irrelevant to the question whether Whitt's statements were deliberately elicited.
It is also irrelevant to the Henry analysis that an accused's statements were voluntarily made. "Since 'coercion' is not a Sixth Amendment question, 'voluntariness' simply plays no part in the test of admissibility." (Cahill v. Rushen, supra, 501 F.Supp. at p. 1225.)
A factor which is significant in the analysis is the accused's custodial status. As Henry notes, "the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents . . . . incriminating conversations between Henry and Nichols were facilitated by Nichols' conduct and apparent status as a person sharing a common plight." (United States v. Henry, supra, 447 U.S. at p. 274 [65 L.Ed.2d at p. 124]; see also Cahill v. Rushen, supra, 501 F.Supp. at p. 1228.)
However, if an informant interrogates an accused, but acts on his own initiative rather than at the behest of the government, the government may not be said to have deliberately elicited the statements. (Thomas v. Cox (4th Cir. 1983) 708 F.2d 132, cert. den., 464 U.S. 918 [78 L.Ed.2d 262, 104 S.Ct. 284]; United States v. Malik (7th Cir. 1982) 680 F.2d 1162.) In Thomas, an informant told the state police investigator about some incriminating statements by a fellow inmate. The investigator advised the informant that no promises could be made but that information would be accepted if given.
The informant returned with additional incriminating statements from the inmate. (Thomas v. Cox, supra, 708 F.2d at p. 133.) At an evidentiary hearing, the informant testified that his motive for collecting the information was "curiosity," and that he had not decided to cooperate with the state until after his release from prison. (Id., at p. 134.)
The United States Court of Appeals held that this information had not been "deliberately elicited" under Henry. In
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