Joel Rodriguez was arrested on Federal narcotics charges. Shortly after he was arrested and prior to his indictment, while housed in New York City’s Metropolitan Detention Center, he called his sister and asked her to ask their brother to talk to his lawyer to negotiate a pre-indictment deal. The jail taped the conversation, as it does with all inmate calls and gave the tape to the prosecutor who introduced the tape at trial as evidence of his consciousness of guilt.

On appeal Rodriguez challenged the admission of the telephone call on the grounds that 1) it was an attorney-client communication and 2) it was a statement made in plea negotiations.

The Second Circuit confirmed his conviction and upheld the admission of the telephone call. Attorney-client communications are inadmissible if they are: “(1) between a client and his or her attorney (2) . . . intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.” Conversations with third parties may be inadmissible under the privilege if they are necessary to obtain the confidential advice of an attorney.

The appellate court found that the tape was admissible. Since it was well known that telephones conversations were taped Rodriguez knew that the conversation could not be confidential. Furthermore there was no evidence that Rodriguez could not call the lawyer or that it was necessary to go through his sister to get to the lawyer.

As to statements made during plea bargaining, they are governed by Rule 410 of the Federal Rules of Evidence which only prohibits statements made with opposing counsel and the United States Attorney was not involved in the discussions.

The problem is that attorneys are not easy to get a hold of. Here the matter was urgent in that it needed to be done before the indictment. The attorney may not be in the office. All jail calls have to be collect and if an attorney runs up too many collect calls the phone company terminates further collect calls until the attorney deposits more money in the account. Sometimes there is a language barrier to direct conversations with the lawyer. For any number of reasons it may be easier and more convenient to go through a third party and the admission of these third party calls at trial can be very harmful. More importantly what about direct calls to the attorney. They are still taped. Jails are supposed to have special lines that are not taped for use in calls to the attorney. But access to these lines is often dependent upon the convenience or availability of a guard to provide access and this is often difficult to obtain.

But more importantly, the message to be learned from Rodriguez is that inmates must be very careful what they say to other inmates, in telephone calls, and during visitation. There is a very significant risk in saying anything about their case except in conversations with their lawyer and preferably these conversations should be in person.