Calls Recorded By Jails Can Be Used By Prosecutors

May 8, 2019

By Jill K. Sanders, Esq.

If you’ve ever received calls from someone in jail or prison, you’ve likely heard a recording prior to accepting the call. And it usually states that the phone call will be monitored and recorded.

As such, prosecutors were requesting the recordings and using them at trial. So, is it constitutional for prosecutors to have unfettered access to those recorded calls? Recently, New York’s highest court has weighed in on the issue.


The Jailhouse Calls

Emmanuel Diaz was arrested in 2012 in New York City and charged with robbery and burglary. After his arrest, he was held in jail at Rikers Island for a period of time when he was unable to make bail. While there, Mr. Diaz made approximately 1,100 calls during that time.

At trial, the District Attorney’s Office offered incriminating statements made by Mr. Diaz. Those statements were recorded when Mr. Diaz spoke on the phone to family and friends. Despite an objection, the trial court admitted the recordings, and he was convicted and sentenced to 15 years’ state prison.


The Issue on Appeal

Mr. Diaz acknowledged he knew the calls were being monitored and recorded by the jail. Yet he had not been warned that the recordings could be released to prosecutors. As such, he argued that his Fourth Amendment rights were violated, and that the evidence should have been suppressed by the trial court. Mr. Diaz claimed he had a legitimate expectation of privacy in the face of government action.


The Court’s Decision on the Calls

In a 5-2 decision, the court’s majority ruled that there was no reasonable expectation of privacy for calls made while in custody. This is because of the warning at the beginning of each call, as well as signs posted in and around the jail. As Judge Paul Feinman wrote, “Given the government’s weight interest in ensuring institutional security and order, surveillance is ubiquitous in the prison context.”

Further, the NYC Department of Corrections indicates in its operations manual that it will provide prosecutors with recordings upon request. And while the inmate handbook says that records are made “for purposes of security,” this does not mean that the calls won’t be shared with prosecutors.

Yet two judges dissented. Judge Rowan Wilson wrote that there was a lack of notice to inmates that their calls would be handed to prosecutors. In his dissent, he wrote, “Nothing in this case justifies the governmental intrusion of Mr. Diaz’s privacy inherent in the District Attorney’s unfettered access to his phone calls for the duration of his pretrial detention.”