Perhaps the Miranda warnings need a little update. New York City might’ve made phone calls from its jails free, but you’ll want to watch what you say when you’re on the line.

The state’s highest court ruled last week that not only can those calls from jail be recorded, but evidence gleaned from those conversations can be used by prosecutors in court.

For Prosecutorial Purposes, Your Call May Be Recorded…

That the calls were recorded should not have come as a surprise to Emmanuel Diaz, who had been arrested and charged with multiple counts of burglary and robbery, and was awaiting trial on Rikers Island. Under state law, inmates receive three warnings that phone conversations (with people other than their lawyers) will be monitored and/or recorded:

  1. Signs posted near the telephones used by inmates, stating in both English and Spanish that calls are monitored and recorded and that using the phone constitutes consent to the recording or monitoring;
  2. A notice in the inmate handbook that calls can be monitored and recorded; and
  3. A recording in Spanish or English that plays when an inmate picks up the phone receiver, stating that the call may be recorded and monitored.

What those warnings leave out, however, is that recordings may be turned over to prosecutors and used as evidence in an upcoming trial. Diaz made over 1,000 phone calls in the eight months he was incarcerated, and, according to prosecutors, made incriminating statements in four of them. “I didn’t beat no one up,” Diaz allegedly told his father. “There was no f***ing weapon.”

Admissions, Evidence, and Expectations

Diaz challenged the use of those and other statements during his trial, and the New York Court of Appeals ruled that he had no reasonable expectation of privacy in the content of his prison phone calls:

Even if defendant subjectively believed that his calls were private — a notion that is largely belied by the record — that expectation was not objectively reasonable. Given the government’s weighty interest in ensuring institutional security and order, surveillance is ubiquitous in the prison context … Because any expectation of privacy in defendant’s calls was not objectively reasonable, “the Fourth Amendment is therefore not triggered by the routine taping of such calls.”

But not all of the judges agreed. “Mr. Diaz’s consent to a search by DOC,” Judge Rowan Wilson wrote, “for its own security purposes cannot reasonably be construed to include consent for the district attorney — a law enforcement entity — to search that information for prosecutorial purposes.” Wilson also pointed out how those who are out on bail or other pretrial release are treated differently than those who can’t afford bail:

For a criminal defendant who is not detained but is instead out on bail, the Fourth Amendment undoubtedly requires law enforcement to obtain a warrant to monitor that person’s calls. As a pretrial detainee not convicted of any crime at the time the phone recordings at issue in this case were made, Mr. Diaz is, as a starting point, entitled to that same level of constitutional protection.

Ultimately, however, Wilson was out-voted 5-2. So if you are behind bars, know that you have the right to remain silent, and have confidential calls with your lawyer. But anything you say on the phone can and will be recorded, turned over to prosecutors, and used against you in a court of law.

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