In my previous post, I discussed a recent Massachusetts Supreme Judicial Court (SJC) ruling, concerning the admissibility of jail inmates’ recorded phone conversations. More accurately put, the decision concerns not so much the admissibility of these recordings in and of themselves, but in how the recordings must be obtained by prosecutors, before the recordings will be allowed as admissible. The court’s unanimous decision ruled that in prosecutors unilaterally drafting and presenting this subpoena to jail officials (a sheriff in this case,) and in obtaining these recordings in this manner without first obtaining a judge’s approval, prosecutors violated the Massachusetts Rules of Criminal Procedure by not obtaining prior court approval for the subpoena. Justice Margot Botsford, writing for the court, said that the requirement to seek prior court approval for pretrial subpoenas “seems especially appropriate in a case like this one, where the information sought recordings of the defendant’s telephone conversations are at least arguably confidential in some sense, whether entitled to constitutional protection or not.” The high court referred the case back to Middlesex Superior Court for a hearing to determine whether Odgren’s constitutional rights were violated in the first place, by the initial issuance of the subpoena for the recordings.
A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval – whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. “This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded,” Leone said. “It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts.”
Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.