Jail Telephone Calls: Dial at Your Own Risk

September 28, 2016

By Keffer Hirschauer LLP

We often take for granted that our telephone calls are supposed to be private. And, with limited exception, the government is required to obtain a warrant or court order before it can listen in on what you’re saying. However, when an individual makes a telephone call from a jail or prison, that expectation of privacy is sharply curtailed.In most jail facilities in Indiana (nearly all as far as we can tell), telephone calls made by inmates are recorded and/or monitored. These recordings are often stored electronically and can be subsequently reviewed by jail personnel or other law enforcement officers. And, many criminal cases that were otherwise weak have been strengthened by the potentially incriminating statements that defendants have made during these jail telephone calls. So why do individuals not have the same privacy in a jail as they do during any other telephone call that they might make?In State v. Baer, 866 N.E.2d 752 (Ind. 2007), the Indiana Supreme Court made note of several of the reasons why jail telephone calls may be admissible as evidence again someone. Amongst the factors that a trial court could consider are: the defendant’s knowledge that his call is being monitored (i.e., were signs posted that said the call could be monitored), whether the defendant was told in advance that his calls could be monitored (some jails make inmates sign handbooks acknowledging this), whether there is a recorded message that plays before or during the telephone call that reminds the inmate that the call is being recorded, and whether the defendant had alternatives other than making the telephone call. Id at 762-3. After all, trial courts are reticent to extend a special privacy interest to individuals who have been repeatedly warned that they are being listened to by jail personnel. Yet, people in jails still talk about their cases.In an age where science is rapidly advancing, the technology surrounding the monitoring of jail telephone call is keeping pace. Now, jail personnel, law enforcement, and even prosecutors can: (1) remotely access an inmate’s call history; (2) review and listen to all of an inmate’s previous calls from the jail; (3) view the individual telephone numbers being called, and (4) even eavesdrop on inmate telephone calls in real time. Yet, again and shockingly, people in jails still talk about their cases. Why?This desire to chat against one’s interest is likely the result of several factors. The first is that it is difficult to reach out to loved one’s for assistance without divulging something about what placed the person in jail. Almost invariably, the first question an inmate gets asked is “what happened?” And, second, many friends and loved-one’s are not satisfied with a short version of what occurred, they often want the details and do not want to wait for a more private conversation in order to get them. Third, many inmates believe that their case is not “important enough” to be monitored by law enforcement. This last point is the most damaging misconception by inmates, and misses why law enforcement and prosecutors listen to jail telephone calls: to win cases.If the case against an inmate is strong, it may be less likely that law enforcement and prosecutors will spend their time listening to possibly hours of jail telephone calls. Rather, it is when their case is weak and they need additional evidence (and an accused is possibly going to be set free) that they will invest their time and resources in jail telephone calls. This leaves an inmate, confident that he will soon be set free, stunned to learn that his own words have sealed his conviction. Further, prosecutors are now using jail telephone calls to find aggravating circumstances to justify higher sentences. See http://pilotonline.com/news/local/crime/jails-are-all-ears-for-inmates-phone-calls/article_6b7a0d14-9245-53ad-bec9-7cf67a4875fd.html (last visited September 28, 2016). As former deputy prosecutors, most of the attorneys at Keffer Hirschauer LLP have personally utilized jail telephone calls as evidence in criminal cases. Yet, despite the warnings, despite the legal dangers that they pose to inmates, and despite their use being publicly known for decades, people in jail still keep talking about their cases.

If you interested in making a safe call, contact the attorneys at Keffer Hirschauer LLP today. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160.