Time and time again do we, as defense attorneys, become frustrated with family and friends who communicated with incarcerated persons regarding sensitive matters. While their intentions are sincere, communication made to incarcerated individuals through phone calls can be devastating to someone facing trial. I can tell you from experience that I have reviewed hours upon hours of phone call recordings given to me by the Government trying to determine how those calls can and will be used against my client. I have even had a case where the phone calls themselves gave rise to independent federal charges!
The reason I am writing this guide is to reach out to friends and families who have loved ones who are incarcerated. I truly understand that you need that person and that person needs you, but you must be aware of a few things:
1. Phone calls can be used against an incarcerated person.
For those of you who have called a loved one in jail, you probably remember the recorded message prior to the beginning of the call. Usually, the call starts with a recorded message stating that calls are monitored and subject to review. You may think, "what are the chances that anyone will be monitoring this call when there are so many inmates and so many calls?" Well I am telling you that it is someone's job to do that specific task. In fact, in Loudoun County, it is their policy to record ALL phone calls. And I suspect that is typical in other jurisdictions.
You may also think, "well it's a private call...how can that be used as evidence?" Simply put - it is not private. By warning you that the call is recorded, law enforcement has relieved that incarcerated person of expectation of privacy. Therefore, they cannot later claim it's unfair to be used against them in a court of law.
2. That does not mean you should refrain from any communication with incarcerated person.
It's no secret that incarceration is a scary thing. Incarcerated persons are away from their loved ones, thrown in closed confinement with people whom they've never met, and have the pressure of the world on their shoulders as they contemplate their future. I encourage communication by loved ones to help those persons through some of the most traumatic events of their lives. But you need to think before you speak!
3. Think before you speak.
When you loved one asks about the case, or you ask them about the case for that matter, realize that you could be harming their case. There is no telling how statements can be used against an accused. When the subject of the case comes up, all parties to the conversation MUST take a step back and ASSUME that everything being said will be used in court. My suggestion, when speaking to incarcerated persons, is to talk about things outside of the ongoing case - children's school, mother's birthday party, etc. And if you ever have some information you need to relay about the case, call the person's attorney. The attorney is in a better position to judge what information can be shared over the phone. Plus, they have means of communication that you do not, such as contact visits.
4. Realize that such communications makes the attorney's job more difficult.
Having had to sit through hours and hours of phone recordings, I can tell you that it takes time. It takes time to download the phone calls onto my computer. It takes time to organize spreadsheets outlining the conversations. And it takes time actually sitting down and listening. Time listening to phone calls is time away from doing other things necessary for the case such as research, investigations, and organizing.
For those individuals lucky enough to have loved ones (and trust me, no everyone is so fortunate), communication with the outside is important to mental stability. But just be aware of the seriousness of such communications.
Best of luck,
James S. Abrenio