To my knowledge no appellate court has held that listening to a legally obtained tape recording violates the Sixth Amendment (although the Arizona Court of Appeals came pretty close). At least the law is now clear in Hunt County.

Given the amount of time and money devoted to the prosecution of a capital murder case, it seems appropriate that the judge should err in the favor of the defendant. He thereby protects the record from challenge on appeal while preserving the state's right to prosecute the defendant. In short, the judge seems to have adopted a "best practice" approach to ruling.

Wouldn't it be easy to avoid the problem by having a separate phone line for attorney/client communication?

The article also had complaints about the state using non-atty.-client phone calls. The article quotes a defense atty. named Davis who said that at his crook's trial, the prosecution used tapes of his jail house phone calls, "to basically assassinate his character."

Maybe he meant, "to expose his true character." I got a big laugh out of that one.

The Dallas A.M. News reporter seems to think that recording inmates phone calls is a big bad NO-NO, as if recording a jail inmates phone call is the same as wiretapping a free-world person's phone. Their inability to make such moral distinctions is a major problem at that paper.

To the contrary, I think the Dallas reporter understands the difference. I talked to him for a long time, giving him background on the legal justification and investigative value of jail phone recordings. He understood and seemed to agree with the conclusions of the courts and offices that use such recordings. I also gave him a long list of the valuable results (see previous thread) that come from using such recordings.

But, as a reporter, I think he believes he must provide "balance", which always seems to translate into quoting someone who states the exact opposite of another person. I do have a problem when reporters, who know that the law is settled in an area, as it is regarding jail phone calls (aside from attorney/client conversations) and still think it is balanced to provide space for what is clearly a minority or even illogical point of view without alerting the reader to the status of the point of view.

So, for example, the reporter could have written: "Even though Texas, federal and other state courts have unanimously agreed that the use of jail phone calls does not violate any privacy rights of an inmate, one defense attorney says..."

quote:

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"... as if recording a jail inmates phone call is the same as wiretapping a free-world person's phone."

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quote:

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"It seems to violate the 'it aint fair' rule, but not the 'it aint legal" rule.'"

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This is just a guess but it might be because Jail inmates awaiting trial are still presumed innocent.

Jailhouse phone recordings certainly have great value to law enforcement but just imagine how much MORE crime could be prevented if everyone's phone was always tapped? If you don't do anything wrong, what have you got to hide?

(just kidding)

I would feel sorry for the poor sap who had to listen to random people's phone conversations. I have a witness tampering case where a defendant is coercing witnesses to change their stories about his confessions to them and he texted some things to them. In getting those, I also got some others....and judging from that, the last thing I would want to do is listen into other people's phone calls. In fact, that may be a form of punishment we could use for those who are "no longer presumed innocent." (my case involves high school kids to add to the drama). I would imagine there are some phone calls between those incarcerated and their significant others that we really would not want to have to hear.

Let's not forget why the defendant in jail is different from the person at home. The person at home has the highest level of privacy available under the Fourth Amendment. Society expects that a person in their own home is free from government intrusion, absent probable cause to believe they are producing evidence of a crime. So, law enforcement can't tap a phone line absent evidence of an ongoing crime. And, in Texas, that right limited to only evidence of certain crimes. Until recently, those crimes were limited to drug dealing. But, the Leg expanded the crimes recently to include certain violent crimes.

The person in a jail has already been charged with a crime and is being held in a government-run facility. If the facility is a prison, then the person has already been convicted and sentenced. Either way, the people running the facility have a strong interest in maintaining security in the facility and have every right to control the conditions of confinement, at least within the bounds of the 8th Amendment's cruel and unusual clause.

A person being confined in a jail or prison has NO reasonable expectation of privacy. Maintaining a secure facility can't be reasonably accomplished while maintaining an individual's privacy. The two goals are inconsistent; so the courts have held there is no right to privacy in a jail or prison (or police station or backseat of a patrol car).

In the absence of a right of privacy, when a confinee picks up the jail phone and initiates a phone call to the outside world, he/she does so with no reasonable expectation of privacy. Therefore, the government may listen to, intercept and record the conversation without violating any right to privacy of the confinee.

A conversation between a defendant and his/her lawyer raises a separate issue -- not of privacy -- involving the protection of a special relationship. Other laws, like the attorney-client privilege and the 6th Amendment right to assistance of counsel are implicated. Any waiver of those rights has historically been viewed with suspicion, requiring an affirmative, voluntary, knowing and intelligent act on the part of the defendant.

For a discussion of whether a juvenile and Mom have a right to privacy at the police station, check out this recent opinion.