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People v. Whitt8/27/1984
!--REF-->659 P.2d 1144].)
In United States v. Henry, supra, 447 U.S. 264, the United States Supreme Court explained what conduct on the part of the government and/or an informant would amount to deliberate elicitation. In Henry, the government agents contacted Nichols, a paid informant, who was housed in a cell with several federal prisoners, including the accused (Henry). Nichols was specifically told not to initiate any conversation with or question Henry about the charges against him. However, if Henry engaged Nichols in conversation or talked in front of him, Nichols was to "pay attention to" Henry's statements. (United States v. Henry, supra, 447 U.S. at p. 268 [65 L.Ed.2d at pp. 120-121].)
The court's holding that Henry's statements to Nichols were deliberately elicited was based on three factors. "First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols." (United States v. Henry, supra, 447 U.S. at p. 270 [65 L.Ed.2d at p. 122].)
The court did not focus on whether Nichols had actively interrogated Henry. Instead, the court noted only that "Nichols was not a passive listener; rather he had 'some conversations with Mr. Henry' while he was in jail and Henry's incriminatory statements were 'the product of this conversation.'" (United States v. Henry, supra, 447 U.S. at p. 271 [65 L.Ed.2d at pp. 122-123].)
While the court reserved the question whether there could be deliberate elicitation "where an informant is placed in close proximity but makes no effort to stimulate conversations about the crime charged" (id., at p. 271, fn. 9 [65 L.Ed.2d at p. 123]), it recalled that " Massiah, [ Massiah v. United States, supra, 377 U.S. 201] no inquiry was made as to whether Massiah or his codefendant first raised the subject of the crime under investigation." (United States v. Henry, supra, 447 U.S. at pp. 271-272 [65 L.Ed.2d at p. 123].) Nor did the court make such inquiry concerning the conversations between Henry and Nichols.
These passages indicate that in deciding whether information has been "deliberately elicited," the courts must focus on the state's conduct as a whole, rather than on the informant's. "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel." (United States v. Henry, supra, 447 U.S. at p. 274 [65 L.Ed.2d at p. 125].) Thus, Henry teaches that where the state has directed an informant to obtain incriminating information, or where it has created powerful inducements for him to do so -- particularly in a custodial setting -- it is not significant whether the informant or the accused initiated the conversation.
Cases decided in the wake of Henry confirm this conclusion. For example, in United States v. Sampol (D.C.Cir. 1980) 636 F.2d 621, an informant was placed on probation on condition that he spend six months in jail and provide the government with information about criminal activity. The informant faced a substantial prison sentence if he did not provide satisfactory information. (Id., at pp. 632-635.) However, the government did not direct him toward any particular inmate. When the informant began bringing back reports from inmate Ross, the only instructions he received were not to initiate any conversations with Ross. (Id., at p. 635.)
The Sampol court found that the informant obtained Ross' statements in violation of Henry. (United States v. Sampol, supra, 63
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