On Prison Tapes: Eavesdropping on Your Client

Jamison KoehlerCriminal Procedure, Social Media and Technology


I am dealing with a “hide-the-ball”-type prosecutor in Virginia.

I have gotten spoiled from working with D.C. prosecutors; they are usually pretty upfront about what they have against your client.  There are no ambushes or surprises.  Your client has better information in deciding whether to plea.  Everyone is better off for it.

This is not that kind of prosecutor.  He is convinced that my client is a terrible person – a “pathological liar,” he tells me – and for some strange reason, he feels compelled to make sure I know this.  As if he is going to change my opinion of the client.  As if I might not try as hard.  As if I might push my client into accepting a plea offer that really is no plea offer.

And he is cagey.

The prosecutor has turned over prison tapes – hours upon hours of my client’s telephone conversations from prison with his wife, his children, his friends.  Yes, the prisons do record them.  Yes, the prosecutors do have someone listen to them.  And if the prosecutors have listened to them, so must you.

Years ago, as a summer intern with the U.S. Attorney’s Office in Philadelphia, my co-interns and I were assigned to listen to the prison tapes in connection with an upcoming trial.  We laughed about how the defendant had completely different personalities depending on the person to whom he was speaking.  With the mother of his children, for example, he was all business: How are they doing at school?  When are you bringing them to visit me?  With one girlfriend, he was the most devout Muslim you had ever heard:  Inshallah this and Inshallah that.  And with a third woman, he was playful and flirtatious.

But it is difficult listening to the prison tapes of my client.  For one thing, there are many hours of the tapes, and I have no intern to assign to the task.  For another, I know this guy.  It feels strange to eavesdrop on his intimate conversations with his wife, his mother, his children and his friends.

Inmates and the people they call are informed at the very beginning of the conversation that calls are monitored and recorded.  So they know this, and they often speak cryptically and in code.  But they also get complacent.  And sometimes they can mess up, saying things that could damage their defense.  That’s why, no matter what personal qualms you may have about participating in this invasion of your client’s privacy, you listen to the tapes anyway.