Use of Jailhouse Informants and Recorded Calls in Criminal Prosecutions

By Jill K. Sanders, Esq.

When you get arrested, you may want to talk to anyone who will listen about your case and your experience with the criminal justice system. However, if you’re in custody, everything you say may be heard by another inmate or a corrections officer, or it may even be recorded and used against you in the future. Use of jailhouse informants and recorded calls by prosecutors could eliminate your chances to successfully fight the criminal charges you’re facing.

What Is a Jailhouse Informant?

A jailhouse informant is an individual who provides testimony or information about a defendant regarding statements the defendant allegedly made while both were incarcerated together. Many might call such informants “snitches.”

The informant often receives a benefit from prosecutors for such information, usually in the form of a reduced sentence on their own criminal charge or by dismissal of their case outright. Informants can also receive money or special privileges while in custody for their testimony. While a prosecutor has a constitutional obligation to turn over to the defense information regarding whatever benefit the informant may receive or any other potential impeachment evidence of that witness, the use of informant testimony may not be among a prosecutor’s best practices for seeking justice.

The use of jailhouse informants is a common, yet often flawed, practice in criminal cases. Inmates who know how to work the criminal justice system often lie in exchange for leniency in their own cases. By the end of last year, 130 wrongful convictions in the US involved the testimony of jailhouse informants. In some cases, prosecutors choose not to confer any benefit on the informant until after the trial of the defendant, thereby eliminating their duty to disclose such impeachment material to the defense. Or, prosecutors may use jailhouse informants who have previously been informants in other cases, but they fail to advise the defense as such.

In one case that has recently been in the news, two jailhouse informants were used by prosecutors to convict Curtis Flowers of a quadruple homicide in Mississippi in 1996. They testified at Flowers’ murder trial, providing evidence that helped convince jurors that Flowers was guilty and should be sentenced to death. But both jailhouse informants have since recanted, and a recent re-investigation found that no direct evidence links Flowers to the 1996 murders. One of the informants has even signed an affidavit stating he only went along with providing testimony against Flowers because he wanted to free himself from jail. He also states he was placed in the cell by law enforcement for the purpose of extracting a confession from Flowers. (To read more about Curtis Flowers’ case or listen to the In the Dark podcasts, visit https://www.apmreports.org/in-the-dark.)

Can Your Phone Calls Be Used Against You?

The short answer is yes – everything you say on the phone while you are in jail can be used against you. Most facilities that record inmate’s calls play a preliminary recorded message informing the inmate that their call will be recorded. Phone calls from the Westchester County Jail and Rikers Island in New York City are recorded and monitored. An inmate has no expectation of privacy when speaking on the phone at a jail facility.

Yet there are individuals who have ruined their potential legal or factual defenses by making statements on the phone from the jail. In particular, some prosecutors listen in on the conversations of inmates charged with domestic violence, given how victims and other family members can be pressured to not cooperate with law enforcement.

While jails aren’t supposed to monitor inmate conversations with lawyers because of the attorney-client privilege, instances of it happening have been discovered in several states. As such, speaking with your criminal defense attorney over the phone about factual matters relating to your case should be avoided as much as possible. Those matters are best discussed in person only.

So Who Can You Talk to About Your Case?

At the end of the day, the only person you should talk to about your case is your lawyer and his or her staff of assistants and investigators. Your right to remain silent is a constitutional right that shouldn’t be ignored. If you are arrested or detained, you should ask for an attorney and wait to answer any questions until after you’ve spoken with your criminal defense lawyer. Then, if you are arrested and held in jail, you shouldn’t talk on the phone or speak with any other inmates about your case. Having only in-person conversations with your attorney about the facts of your case is the best way to protect yourself from having your own words used against you.

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