Does Jailhouse Pay Phone Recording Violate 6th Amendment?
A California public defender reportedly is using a novel constitutional argument to support his contention in a state-court lawsuit that the local district attorney’s office is unfairly listening into conversations on public jailhouse telephones to gain information about criminal cases.
Although such eavesdropping has withstood Fourth Amendment challenge, Contra Costa County Public Defender David Coleman is arguing that it violates the Sixth Amendment. The practice, he contends, does an end run around defendants’ right to legal counsel by, in effect, contacting a defendant who is known to be represented by legal counsel, according to the Contra Costa Times.
Under a five-year contract between the county sheriff’s office and a private Alabama-based company, the company not only digitally records and stores pay telephone calls but pays the sheriff’s office $4.2 million. (In return, the company gets all the revenue from the pay phone calls.)
Meanwhile, the sheriff’s office reportedly is sharing the digital technology with the district attorney’s office, allowing prosecutors to search phone records quickly for information about a specific case. Because the pay phones are located in county jails, many of those making calls discuss criminal cases.
Coleman calls the practice not only unconstitutional but a violation of state wiretapping laws and attorney ethics rules, the newspaper says. The DA’s office says his lawsuit is groundless.
“I like the Sixth Amendment argument here—it’s a very new twist,” Jack King of the National Association of Criminal Defense Lawyers tells the newspaper. “I’ve been following jailhouse recording challenges for a long time and this is the first time I’ve seen this argument aimed at the practice itself. It’s brilliant.”
An oral argument is scheduled Thursday.
Related ABAJournal.com coverage:
Fla. Prosecutor’s Office Disqualified for Listening to Lawyer Phone Calls
