September 12, 2014 By Wallin & Klarich

Generally, communications between a defendant and his lawyer are supposed to be confidential. However, recent reports suggest that prosecutors have been increasingly intercepting emails and telephone conversations between imprisoned defendants and their attorneys. The DA has blamed alleged security concerns to justify this interference. This raises serious issues as to whether this practice violates a defendant’s Sixth Amendment right to counsel.

Should prosecutors be able to intercept conversations between inmates and their attorneys?

The general rule is that defendants in custody have no privacy rights. However, criminal attorneys argue that they are entitled to confidential time with their clients. Without that time and privacy, it becomes very difficult to prepare for trial when the client is in custody. Defense lawyers feel that prosecutors are intruding on the sacred attorney-client relationship by limiting the ability to freely and confidentially communicate with their clients in custody.
Prosecutors argue that they have legitimate reasons to monitor inmate emails and telephone conversations. Most often, prosecutors and jail officials cite significant security risks and challenges related to sophisticated drug smuggling operations and intimidation of witnesses.

The Supreme Court has held that once a defendant’s right to counsel has attached, government intrusion into the attorney-client relationship violates the Sixth Amendment. To prove this, the defendant must show a realistic possibility of prejudice caused by the intrusion. Although there may be legitimate reasons for monitoring inmate communications, it is concerning to have a legal system in which prosecutors have unregulated access to defendants in custody. Such indiscriminate access jeopardizes the sacred attorney-client relationship. So the question remains, does privileged attorney-client communication in custody really exist?

Give us your feedback

At Wallin and Klarich, we encourage feedback from our clients and our readers. Tell us what you think. Do you think prosecutors should be able to interfere with attorney-client confidentiality when defendants are in custody?

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