In my experience, client calls from jail or prison facilities come in two forms. Sometimes, a client will call me directly from the facility using the facility’s telephone equipment. On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility. Both methods of contact present serious problems. The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations. Thus, this method of calling an attorney presents serious attorney-client privilege issues. I always advise clients to never discuss their case with anyone who has no need to know about it. A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.
Direct calls using jail or prison telephones are highly problematic for other reasons. State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey. That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs. Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored. Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form. Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.” Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.
Defendants in each of these cases made calls from these jails. The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress. The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act. He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls. He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility. In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.