Anyone charged with a crime has the right to an attorney. This is a Constitutional right and one of the cornerstone principles of the U.S. criminal justice system. The right to counsel (or legal representation) only has meaning if the accused person and their attorney can communicate freely without worrying that the government (or others) will be able to access their private conversations. This is known as attorney-client privilege, and its importance cannot be overstated.
Unfortunately, a common practice in jails and prisons has seemingly violated attorney-client privilege for tens of thousands of Americans. According to an in-depth investigation by Vice, private companies contracted to provide prison/jailhouse phone services have routinely recorded and kept confidential phone calls between inmates and their attorneys. Some of those recordings have made it into the hands of prosecutors.
All calls recorded as a rule
Private companies like Securus Technologies handle prison phone services in many states. At the beginning of each call, both participants are warned that the call is being recorded. Companies are supposed to make exceptions for calls between inmates and their attorneys, and attorneys can even request that their phone numbers be added to a “do not record” list. Unfortunately, getting on that list can take an unreasonably long time, and some attorneys were recorded even after they were on it.
Audits and investigations into the practices of Securus have revealed tens of thousands of recordings that violated attorney-client privilege. Problems impacted defendants in at least nine states, but other companies in other states likely have the same problems.
Why attorney-client privilege matters
The Sixth Amendment guarantees the right to counsel, in large part, because most non-lawyers lack the education, training and knowledge to adequately defend themselves against criminal charges. If you are given access to a lawyer but cannot trust that your communications are private, you won’t be honest and open with your attorney. This defeats the purpose of having an attorney in the first place.
Are there ways to remedy violation of privilege?
It is unclear how the tens of thousands of cases mentioned in the article will be addressed (if at all). But consider a hypothetical example in which you were charged with a crime and discovered that calls with your attorney were being recorded and given to prosecutors.
If this information came to light ahead of trial or during trial, your attorney may ask the judge for a mistrial because prosecutors obtained evidence in a manner that violated your Constitutional rights. The recordings themselves would never be officially entered into evidence, but they may have tainted other evidence by giving investigators information that they would not have otherwise had.
If you had already been convicted of a crime and later learned that your attorney-client privilege was violated, your attorney may be able to file an appeal. While there are no guarantees that an appeal would be granted, the violation of your rights would certainly be a good reason to pursue one.
Work with an attorney you trust
Many attorneys try to avoid the possibility of privacy violations by holding in-person meetings whenever possible. No matter how you communicate, however, it is important that you hire an attorney you feel you can trust and speak openly with. The stronger your attorney-client relationship, the better your representation can be.