Mar 26, 2017 The necessity of communicating confidentially about a criminal defendant’s case
Over four years ago, I blogged about the truism that the courthouse walls and halls have ears. The courthouse hallways are swarming with police in plain clothes, prosecutors and judges dressed similarly to defense lawyers, news media reporters, and other criminal defendants and their supporters who would love to trade others’ confidences to try to dig themselves out of their own holes. On top of that, courthouse conference room doors and walls do not always keep conversations airtight from others to hear. At counsel table during a trial or hearing, the criminal defendant needs to be aware that the microphone at the table may be amplifying and recording all conversation, others in the courtroom might hear what they say, and any hired court reporter in the courtroom may have placed a recordation device on all counsel tables.
Consequently, I advise my clients and their supporters to discuss as much about their case with me well before their court date, not only because of confidentiality issues, but also because the court date is show time, when as much conversation and preparation for the case as possible should happen before the court date.
While I can understand the need for criminal defendants to adapt to avoid having others overhear their discussing their cases in the courthouse, it is hard for me to understand the repeated times that I hear experienced lawyers talk in full voice in the hallway to their clients about sensitive matters.
For criminal defendants unfortunately jailed before trial, additional confidentiality issues arise. Just as courthouse conference room doors and walls do not hermetically seal conversations, nor do jail conference rooms. I advise my incarcerated clients to speak low enough so that their voices do not carry outside the jail conference room. I can hear them just fine sitting across from me.
Inmates’ phone and live conversations with anyone other than their lawyers (and sometimes also excepting their conversations with their psychologists and clergy) are recorded. When they call their lawyers, those conversations are recorded. Some jails do not even have an unrecorded phone line for lawyers to call their clients. Repeatedly police find pearls of evidence to strengthen prosecutions against defendants who wag their tongues about their pending criminal cases and about other crimes. Lawyers calling their clients on un-recorded phone lines do not automatically solve confidentially issues, when considering that other inmates and jail guards are nearby the client to hear their conversations.
Criminal defense lawyers must take the lead in assuring confidential conversations with their clients.