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.
In a reported decision, the Appellate Division granted leave to appeal, and then reversed. First, and for various reasons consistent with prior case law, the Court observed that telephone equipment used by law enforcement in the ordinary course is not withing the scope of the Wiretap Act. As to Fourth Amendment concerns, the Court found that a reasonable expectation of privacy exists when a defendant has an actual and subjective expectation of privacy that society is willing to recognize. However, a jail or prison inmate’s expectation of privacy must give way to institutional security concerns, such as preventing inmates from participating in criminal activity during incarceration. Any expectation of privacy that an inmate may have must give way to the need to maintain security within the facility, as well as public safety outside the facility.
Inmates should never call attorneys from jail or prison facilities, either by using equipment operated by the facility or by means of a three-way conversation. As noted above, calls to attorneys made on facility equipment are purportedly not monitored, but there is no way to truly know if the facility is complying with its own rules. Third party calls are also problematic because they involve someone legally unrelated to the case in attorney-client communications. Finally, the inmate can never really know who in their immediate area is listening to what they are saying while on the phone. A competent and responsible attorney will know when they have to meet with their client at the facility to discuss the case, and the client must have confidence in their attorney’s judgment as to the need for such a meeting.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey. Mr. Friedman represents adult and juvenile defendants in all state and federal courts throughout New Jersey and New York City, as well as defendants with charges in all New Jersey municipal courts.