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Can The Prosecutor Use My Conversations On The Jail Phone Against Me?

by | Dec 16, 2019 | Criminal Procedure |


Sitting in jail waiting for the resolution of your criminal matter is a frustrating experience. If unable to post bail, there is nothing you can do but hold tight and wait for information. Your family is only able to visit on the weekend. Your attorney might come frequently, but not often enough to address that burning question which came to mind in the middle of the night. The best outlet that an inmate has is to talk to others on the outside via the jail phone. These telephone conversations with loved ones are a source of comfort and reassurance.  Inmates tend to talk about their court business to those people whose opinions they value the most, whether it be a spouse, parent or adult child.

Unfortunately, these jail communications are recorded by corrections officials and may be forwarded to the prosecutor for review. If there are any details of your case that are disclosed to the person on the other side of the line, then they can be used against you by the prosecutor in a court of law. Nothing that you say is safe.

Does this violate my Fourth Amendment rights against warrantless searches and seizures? Do the police need a warrant to intercept those phone calls? No, it does not. The protection of the Fourth Amendment depends on whether the person asserting it had a legitimate expectation of privacy in the invaded space. Katz v United States, 389 US 347, 353 (1967). The more likely that your situation is available for public examination, the less likely that you have a reasonable expectation of privacy. In your own home, you would have the maximum expectation of privacy and the police would be required to obtain a search warrant to carry out an intrusion. However, one would have no expectation of privacy in evidence that was discarded and sitting in a garbage bin on the corner. The contents of a garbage bin would be considered abandoned and any person walking by can look and scrutinize the contents within. Any rights and interests that the owner would have had in the discarded property is extinguished.

In Hudson v Palmer, 468 US 517 (1984), a defendant challenged the admission of evidence of an electronically monitored conversation in jails, prisons or police stations. The U.S. Supreme Court held that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell[.]” Id at 525-526. The Court added it “believe[d] that it is accepted by our society that ‘[l]oss of freedom of choice and privacy are inherent incidents of confinement.'” Id at 528. In short, there is no expectation of privacy whatsoever when you are incarcerated, even if you truly believe you are engaged in a “private” phone conversation. The prison or jail has no duty to advertise or disclose to the inmate that the jail phone conversations are being recorded and that the contents can be used in a court of law.

The only safe person to truly discuss the facts and strategies related to your case with is your lawyer in person. These communications are protected by the attorney-client privilege, whereas anyone else you spoke to could be subject to being subpoenaed into a court of law to testify about the conversation you had. Even speaking to your lawyer on the phone about your case is not advised, for the attorney-client privilege does not protect situations where a third-party is listening. It is just wise to assume that if there is any opportunity that the jail or prison staff could take to intercept information from you, then they will take advantage of it.

It is truly amazing how many times that a criminal case where the prosecutor had very tenuous evidence against the defendant became much more solid due to intercepted admissions on the jail phone. You can be sure that, as a jury trial approaches, the prosecutor and police are taking careful notice of all of the defendant’s communications in and out of the jail to fill the holes in their case. Use absolute discretion in who and what you discuss with anyone.

If you or a loved one is charged with any criminal offense in Michigan and needs legal representation, do not hesitate to call the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.

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