The New York Times recently reported that prosecutors in a federal extortion case had claimed a right to use as evidence jailhouse e-mails a defendant sent to his attorney. The federal Bureau of Prisons routinely monitors inmates’ e-mails delivered via a prison e-mail system. Among pre-trial discovery materials prosecutors provided, defense attorneys found e-mails a client had sent to his defense team from prison.
While prosecutors’ access to communication between an attorney and a client seems outrageous, individuals seeking legal advice from inside any detention facility need to be aware of prevailing case law. At least two federal courts have determined that communication monitored by a third party does not qualify as protected attorney-client communication.
The decisions follow a line of reasoning widely discussed in recent debate about National Security Agency surveillance of telephone and Internet communication among the public at large. Federal agencies have claimed no reasonable expectation of privacy can be implied when communication companies routinely store communication.
Federal courts concluded people enjoy no Fourth Amendment protection against unreasonable searches with regard to conversations conducted with no reasonable expectation of privacy. That means investigators can often collect contents of e-mails or telephone records revealing who called whom without first obtaining a search warrant.
Attorney-Client Privilege Hinges on Expectation of Privacy
Contrary to the New York Times assertion that “inmates’ calls to or from lawyers…are generally exempt from such monitoring” the 2nd Circuit court in 2011 said there is no general exception to monitoring jailhouse phone calls between attorneys and clients. Instead, a person must invoke attorney-client privilege and take steps to ensure it is not waived, the court concluded in United States v Rodriguez (2d Cir. Aug. 25, 2011) (Nos. 10–2724–cr(L), 10–3402–cr(CON))
“It is not asking too much to insist that if a client wishes to preserve the privilege…, he must take some affirmative action to preserve confidentiality.”
Prosecutors claim inmates who use the e-mail system in federal detention facilities have no expectation of privacy because they are advised correspondence is monitored. Because they have no expectation of privacy, prosecutors say inmates waive confidentiality when using prison e-mail to correspond with attorneys.
Defense attorneys argue e-mail should be no different than regular mail when it comes to attorney-client confidentiality, but courts often disagree. It would seem easy enough for detention facilities to maintain lists of attorneys with whom correspondence should not be monitored, but that does not appear to be a standard practice at this time.
Be Careful When Discussing Criminal Cases in Jail
To assert attorney-client confidentiality, inmates must ask for a confidential in-person meeting with attorneys, or ask to talk with their attorneys over unmonitored telephone lines, federal courts have said. Those procedures pose an onerous burden on clients’ ability to assist with their defense but may be necessary to avoid having attorney-client conversations recorded and used by prosecutors as evidence.
Policies and practices might vary in local jails as compared to federal facilities. Notices in some Oklahoma jails might suggest phone calls to attorneys are not recorded. We have heard that is not always the case. Even when notices near jailhouse phones claim otherwise, phone calls to attorneys might be recorded. Unless the recordings are disclosed as evidence, a defendant might never know how a prosecutor used recorded phone calls to gain a strategic advantage.
Right to Remain Silent vs. Right to an Attorney
If you need to talk with an attorney while you are in jail, never discuss the facts of your case unless and until your attorney advises you the conversation is protected and confidential.
It is understandable that a person in custody facing a high-risk court proceeding would feel a strong urge to talk about the case, at least with an attorney. To do so, however, can expose the conversation to surveillance. Recorded conversations can potentially be used as evidence against you, or to otherwise give investigators or prosecutors strategic advantages.
Likewise, conversations with a spouse are not protected by spousal privileges when conducted over recorded telephone lines. Simply put, avoid talking about your case when you are in custody. For that matter, when you face criminal charges it is often best to avoid talking about the facts of your case with anyone except under the advise of an attorney.
Strategy Session: Tulsa Criminal Defense Attorney
If you are facing criminal charges in Tulsa, seek the assistance of a qualified Tulsa criminal defense lawyer. To schedule a confidential consultation with a Tulsa criminal attorney, call Wirth Law Office at (918) 932-1681.
