Jails, telephones, and audiotapes

If you talk on the telephone from any jail in South Carolina, and probably anywhere in the country, you can bet your conversation is recorded. Often this pops up a few days before trial, when the prosecutor dumps an armful of audiotapes on the defense attorney with the defendant talking to his family, girlfriend, or friends about his case. Statements made by a defendant are generally admissible at trial.
Heres a thought – conversations with the defendant’s attorney are not admissible, but do you believe for one minute that no-one is listening to them? I explain to my clients during the initial interview, if they are incarcerated, that I will not accept phone calls from the jail. I will go and speak to my clients in person periodically, or if they get a message to me, but I don’t talk on the jail phones.
This article highlights a related issue. The Dorchester County Sheriff’s Office has promptly provided the Charleston Post and Courier with recordings of Senator Randy Scott’s conversations with his wife after he was arrested. A temporary restraining order has been issued, pending a hearing next week.
The newspaper claims it has a First Amendment right to publish the audiotapes. That may or may not be true. Certainly the Senator has the right to a fair trial, unbiased by law enforcement generated media coverage, press releases and leaked evidence.

This is the debate that is in the spotlight. But what about – if the Senator was not informed that his calls were recorded, the Sheriff’s Office may have violated federal wiretapping laws? Or maybe we should be talking about the ethical obligations of the prosecutor’s office under Rule 3.6, and the prosecutor’s duty, under Rule 3.8, to prevent Dorchester County Sheriff’s Office from making extrajudicial comments that the prosecutor himself would be prevented from making under the rules:

[Rule 3.8](f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

[Comment] [6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons assisting or associated with the prosecutor from making improper extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. Ordinarily, the reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to law-enforcement personnel and other relevant individuals.

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