Wednesday, July 30, 2014

Does 'privileged' communication in custody really exist?

By Professor Laurie Levenson, David W. Burcham Chair in Ethical Advocacy

This op-ed originally appeared in the July 29, 2014 edition of the Daily Journal.


Recent reports suggest that federal prosecutors are increasingly intercepting emails between incarcerated defendants and their counsel for alleged security reasons. In the process, they are discovering incriminating evidence that they seek to offer against the defendants at trial. If true, this practice raises significant issues for the courts.

Communications between a defendant and his lawyer are supposed to be confidential. Yet, government officials are also allowed to monitor phone call and email communications. Courts must now decide when monitoring crosses the line and becomes improper interference with a defendant’s Sixth Amendment right to counsel.

The basic rule of custody is that inmates have no privacy rights - not when they are on the phone, not when they send emails, and not when they talk to other inmates. While attorneys are supposed to get confidential time with their clients, in-person meetings are difficult. And, under certain circumstances, even these may be monitored.

The net result is that it is increasingly more difficult for defense counsel to prepare for trial when the client is incarcerated. A single visit to jail to meet with a client may consume the attorney’s entire day. Even when arrangements can be made, there is precious little time for the attorney to solicit information from the client. Defense lawyers are left with the job of preparing a client’s case without much client input and clients are left feeling stuck on the sidelines as their case moves forward. Not only does this affect defense counsel's ability to represent a client, it also diminishes clients' trust in their counsel.

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