If you've been arrested by law enforcement, chances are you know from police television shows that you're supposed to get "one phone call." You're entitled to up to three phone calls in California under Penal Code 851.5 PC.
What you may not realize, however, is that those phone calls may be recorded—and what you say in those phone calls could ultimately be used as evidence against you.
In California, so-called "jailhouse phone calls" are indeed recorded. This includes calls made by those arrested and booked, those held in jail pending trial, and convicted inmates.
While Penal Code 632 PC outlaws calls that are recorded without the consent of both parties, the law does not apply to law enforcement investigations, nor does it apply to incarcerated inmates because they are not deemed to have a right to privacy.
Thus, with the singular exception of calls covered by attorney-client privilege, police stations and jails have the right to record any call you make from their facilities.
Anyone who has a loved one in jail knows how brutal incarceration can be for everybody involved. Studies have shown that regular communication with family while in jail is psychologically helpful for the person incarcerated. However, conversations between an incarcerated person and their friends and family are recorded, and these recordings can be used against them.
Although this practice might seem invasive, the justice system sees recorded jail conversations as a crucial deterrent to illegal activities and a potential source of evidence in legal proceedings.
That being said, if you're detained or incarcerated, you still have some rights, and you can demonstrate that if the policy of recording jailhouse calls has violated those rights, you may have some legal recourse.
What is the Process of Recording Inmate Phone Calls?
When an inmate initiates a call, the system automatically records the conversation. These recordings are securely stored in the jail or prison's database, only accessible to authorized personnel.
There is typically visible signage around the phone informing the inmate that the call will be recorded. Additionally, those receiving these calls are notified beforehand that the conversation will be recorded.
It is generally understood that conversations between inmates and their friends or family members can be recorded. This includes both when they are on visits or when they use the jail phone to call outside the jail.
Simply put, you can be certain that the conversation will be recorded, especially for ongoing criminal investigations. Many people who are in jail are still awaiting their trial. If police and prosecutors are still investigating the case, they can use these recorded conversations. This will include any conversations you have while visiting with loved ones.
Are Jailhouse Calls Monitored?
Not necessarily. While you must assume the call is recorded, law enforcement doesn't have the time, motivation, or resources to listen to every call in real-time.
However, you should reasonably assume that someone might be listening in—and law enforcement reserves the right to access those calls later, especially if they are still investigating you for suspected criminal activity.
Can Recorded Calls Be Used Against You?
Recorded jailhouse calls have significant legal implications. They can be used as evidence in court proceedings, potentially impacting the outcome of a case.
What happens if someone admits guilt while talking to a friend, family member, or visitor on the phone? If an inmate inadvertently admits guilt during a recorded call to a family member, this could be used as evidence against them in court.
Conversely, these recordings could also exonerate individuals if they reveal information supporting their innocence. Visits and phone calls with family and friends are not privileged like with an attorney.
As noted, jails warn inmates and the person visiting or on the other end of the phone call that the call is being recorded. There is no expectation of privacy in these situations. Thus, if guilt is admitted, this will most certainly be introduced as evidence in the court case against a defendant.
Suppose someone has already been sentenced and is in state prison. In that case, further admissions they make about crimes could also be used against them. The recorded conversations could lead to new charges being filed against them or even against their friends or family members.
Exception to the Rule: Privileged Communications
The one key exception to recorded jailhouse calls is that you have the right to attorney-client privilege, and neither law enforcement nor the correctional system may violate that right.
As a result, calls between you and your attorney are privileged under law and are not to be recorded. However, it's incumbent upon the inmate to ensure they're using a designated line for these privileged calls.
If you are unsure whether a call is being inadvertently recorded, you should say nothing to your attorney over the phone that might be concerning if overheard.
How Can You Protect Your Rights Regarding Recorded Jailhouse Calls?
While local law enforcement agencies and the California Department of Corrections and Rehabilitation (CDCR) have the right to monitor and record non-privileged calls, inmates also have the right to be informed about this practice.
Any violation of these rights can be addressed through the prison's grievance process, but there may be other instances in which the recording of a call may be addressed legally. These include, but are not limited to:
- Recording of Attorney-Client Calls. Suppose law enforcement records a call under attorney-client privilege. In that case, this constitutes a violation of your rights, particularly if law enforcement attempts to use the information in that call as evidence against you. At best, your attorney may have that evidence suppressed; at worst, this may constitute a structural error where your rights as a defendant have been irreparably violated. If this proves so, the case against you would likely be dismissed.
- Failing to Provide Notification. Most phones in correctional facilities will have a warning about calls being recorded, but technically, if you are an inmate, law enforcement and the CDCR are allowed to record calls without your knowledge, especially during an ongoing investigation. However, there may still be instances in which you had a right to notification, and law enforcement failed to provide it—or there may be other reasons why the information contained in a phone call should not be used as evidence. A skilled attorney can identify these violations and file motions to make this evidence inadmissible.
If your loved one is in jail or prison and evidence from a phone conversation or recorded visit has been introduced against them, seek legal counsel immediately. Contact California criminal defense lawyers for a case review. Eisner Gorin LLP has offices in Los Angeles, CA.