Second Circuit Notes Consensus On Lack Confidentiality Of Recorded Prison Phone Calls

In a cocaine distribution conspiracy prosecution, defendant failed to show that he availed himself of the attorney-client confidential communications privilege when he disclosed confidential information over a phone line that he knew was recorded by a third party and that third party's presence was not necessary to improving the comprehension of the alleged attorney-client communication, in United States v. Rodriguez, __ F.3d __ (2d Cir. Aug. 25, 2011) (Nos. 10–2724–cr(L), 10–3402–cr(CON))

In a recent case the Second Circuit addressed a case involving the application of the attorney-client confidential communications privilege. The case involved a communication "conveying information to his attorney" through a "recorded telephone line he knew as record[ed]" by a third party (the Bureau of Prisons). Noting that it had "not yet squarely addressed" this factual application of the privilege, it acknowledged that it could resolve the issue without addressing "the scope of the privilege in a novel way" and could resolve it simply based on the record. In making this determination, the circuit offered a useful overview of the current application of the privilege, as well as suggested a consensus among the circuits regarding communications in which a defendant took no affirmative steps to communicate with the attorney in a confidential manner. Rodriguez, __ F.3d at __.

In the case, defendant Rodriguez, charged with participation in a cocaine distribution conspiracy, argued that the trial court erred by admitting into evidence a "portion of the phone call" recording that "included a recording of Rodriguez instructing his sister to tell his brother to tell his [defendant's] lawyer that he wanted to 'cop out' to a plea before he was indicted" on the cocaine conspiracy charges. This evidence was admitted as evidence of the defendant's consciousness of guilt of the charged crimes. After a six day trial, the defendant was convicted.Rodriguez, __ F.3d at __.

The trial court admitted the phone statement because it found the communication admissible as the attorney-client privilege did not apply. It noted the privilege would not apply because the co-defendant "was on notice" and did not contest that the allegedly confidential call "was being recorded." In addition, the defendant's communication that could be heard by a third party not necessary to the communication" was unnecessarily accessible to third parties when the co-defendant could have "just as easily" communicated with his attorney in a confidential manner. No reasonable expectation of confidentiality could arise under such a factual pattern. Therefore the attorney-client privilege could not apply. Rodriguez, __ F.3d at __.

The Second Circuit affirmed, finding that on the particular facts of the case the attorney-client confidential communications privilege was not implicated. The circuit noted a three-part showing should be made by a claimant of the privilege. The privilege protects communications:

  1. "between a client and his or her attorney
  2. that are intended to be, and in fact were, kept confidential
  3. for the purpose of obtaining or providing legal advice."

Rodriguez, __ F.3d at __ (paragraphs added; citing In re County of Erie, 473 F.3d 413, 419 (2d Cir. 2007) (The attorney-client privilege's underlying purpose is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”)).


The circuit agreed that it was the element of confidentiality that was particularly lacking in the defendant's claim of a privileged communication. There could be little doubt as the defendant did not dispute that he had been “on sufficient notice that his telephone call[ ] [at issue] "would be recorded.” There could be no reasonable expectation of privacy by the defendant's call on a recorded and monitored line, when use of such a vehicle of communication was not necessary to the communication. In the defendant's case, he could "just as easily" have "availed himself" of communication with his attorney on a confidential line from the prison that he knew was not monitored by authorities.

In communicating on the monitored line, the defendant showed that neither the communication was intended to be confidential or that it in fact was confidential. The circuit suggested this was an affirmative showing to be made by the privilege claimant and that it normally required the claimant take affirmative steps:

Rodriguez “just as easily” could have, and should have, contacted his attorney directly in order to preserve the confidentiality required by the privilege.
* * *

Accordingly, under these circumstances, Rodriguez cannot prove that the second element necessary to invoke the attorney-client privilege has been satisfied, namely, that his call was intended to be, and in fact was, kept confidential. As we have explained, “it is vital to a claim of privilege that the communications between client and attorney were made in confidence and have been maintained in confidence.” Moreover, the person invoking the privilege must have taken steps to ensure that it was not waived—“[i]t is not asking too much to insist that if a client wishes to preserve the privilege ..., he must take some affirmative action to preserve confidentiality.” Rodriguez “just as easily” could have, and should have, contacted his attorney directly in order to preserve the confidentiality required by the privilege.

Accordingly, under these circumstances, Rodriguez cannot prove that the second element necessary to invoke the attorney-client privilege has been satisfied, namely, that his call was intended to be, and in fact was, kept confidential. As we have explained, “it is vital to a claim of privilege that the communications between client and attorney were made in confidence and have been maintained in confidence.” Moreover, the person invoking the privilege must have taken steps to ensure that it was not waived—“[i]t is not asking too much to insist that if a client wishes to preserve the privilege . . ., he must take some affirmative action to preserve confidentiality.”
* * *

The fact that the call was being recorded amounts essentially to the presence of an unsympathetic third party—BOP—listening in. Rodriguez’s awareness of the presence of this third party, and his decision to nevertheless relate to his sister the substance of the communication directed to his attorney, demonstrates an absence of the affirmative action required to preserve the confidentiality of his statements. The existence of a third party somewhere along the line of communication “does not destroy the privilege if the purpose of the third party’s participation is to improve the comprehension of the communications between attorney and client.” Where that purpose is missing, however, the presence of a third party counsels against finding that the communication was intended to be, and actually was, kept confidential.
Rodriguez, __ F.3d at __ (emphasis added; citations omitted).

The finding in the defendant's case that, assuming the call was a communication to his attorney, it was not confidential, was not new or novel. The circuit noted that it met with the agreement of other circuits as well, and they have "have similarly decided that, where an inmate is aware that his or her calls are being recorded, those calls are not protected by a privilege." The circuit offered two examples from other circuits:

  • Eighth Circuit: United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003) (“The presence of the prison recording device destroyed the attorney-client privilege,” as “the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private” and that “[t]he presence of the recording device was the functional equivalent of the presence of a third party.”)
  • Seventh Circuit: United States v. Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (holding that the marital communication privilege does not apply “where the spouse seeking to invoke the communications privilege knows that the other spouse is incarcerated,” because it was unreasonable to expect such communication to be confidential given “the well-known need for correctional institutions to monitor inmate conversations” so that the marital communications privilege does not survive where the communication took place during a recorded call from prison.)
Rodriguez, __ F.3d at __ .

The Second Circuit also examined another evidence theory that was said to protect the defendant's communication -- the application of FRE 410 as a statement in the course of plea discussions. The circuit's disposition of this question will be covered in tomorrow's blog post.

Federal Rules of Evidence
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