SJC Considering Use of Recorded Jail Calls

Posted on May 4, 2009 by Kevin Whitaker

The Massachusetts Supreme Judicial Court is expected to hear arguments today on the use of recorded jailhouse calls in the prosecution of John Odgren. Odgren is accused of murdering a 15 year-old student at Lincoln-Sudbury High School. A lower court ruling had excluded tapes of Odgren's jailhouse phone calls which had been obtained by the prosecution through a subpoena. The SJC's opinion could have far-reaching implications in future prosecutions throughout the Commonwealth of Massachusetts.

There are some basic questions the court will need to address. Do MA inmates have a reasonable expectation of privacy in jailhouse phone conversations? What about those who are presumed innocent, but incarcerated while awaiting trial? There are a number of arguments for safety and other reasons that generally support monitoring of inmates calls. See here for some examples. Prosecutors have had access to these recordings for some time. One MA jail administrator testified to receiving about 150 subpoenas for recordings per month. This case also asks, however, should prosecutors first be required to seek a judge's approval to obtain copies of recorded conversations? Or, should jails provide copies of these tapes to prosecutors whenever they receive a subpoena from the D.A.'s office?

The Boston Herald reports in, Court to consider John Odgren’s recorded jail calls,

For more than a decade, inmate phone conversations in Massachusetts have been recorded, and prosecutors have routinely subpoenaed the recordings to use as potential evidence at trial.

But in the Odgren case, Judge Raymond Brassard said that under Massachusetts rules of criminal procedure, prosecutors should have obtained the court’s approval before issuing subpoenas for the recordings. ...

Prosecutors argue Odgren had no "expectation of privacy" because he was well aware of the policy on recording conversations, which is stated in a prerecorded message at the beginning of each call. Odgren also signed a document that informed him that all phone calls and conversations were recorded and monitored. ...

But defense attorneys say the rules of criminal procedure require prosecutors to first convince a judge that the tapes are relevant and admissible as evidence.

Colin Miller, at  The Evidence Prof Blog,  in a  Nov, 2007 post discussed this issue in a case outside of MA where the defendants argued taping the defendant's call violated his Fourth Amendment rights. Miller states,

The problem with this argument, however, is that for Fourth Amendment rights to apply, inter alia, the speaker must have a reasonable expectation of privacy, and most courts have found that no such reasonable expectation exists in outbound calls from prison. See, e.g., United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996). The prosecutor in the Glover case successfully argued this point and noted that inmates and the people they call are warned each time they speak over a jail telephone line that the authorities are taping the conversation.

While not controlling, previously, this "consent" argument appears in MA, too. In the Norfolk County Superior Court case of Commonwealth v. Deryck Long and Paul Brown a footnote indicates,

Inmates are informed that their calls to those outside the jail are subject to monitoring, so there is no claim that these conversations were improperly intercepted.

The Federal Bureau of Prisons' website records calls and states:

A notice is posted next to each telephone advising inmates that calls are monitored. Unmonitored calls to attorneys are permitted in certain circumstances. Third-party or other alternative call arrangements are not permitted; this ensures inmates do not have the opportunity to use phones for criminal or other inappropriate purposes.

Thus, it seems the practice of monitoring conversations will likely continue to be allowed as prohibitions against this would be a distinct departure from current practices. The question of how prosecutors gain access to these recordings, however, seems to be a trickier question for the court to consider. Further is there a difference between someone already convicted versus someone awaiting trial? Will factors other than one's rights be considered? Given the cuts in budgets, are the administrative costs, time, and resources of additional court proceedings warranted? Especially when various notices indicate the calls are being recorded? I'd bet allowing prosecutors to obtain these recordings through subpoenas will continue, or if court permission is first required, then these requests will most likely be granted routinely.

I assume an argument will likely be made that defense attorneys can seek to have materials ruled inadmissible after disclosure but before trial. I suspect this argument will win the day, but this is only my guess. Nonetheless, prosecutors and defense lawyers across MA will be watching this case closely to see what privacy rights, if any, a jailed person has to their phone conversations and what procedures will be required in future prosecutions.

Other news' posts covering this case include:
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