Overhearing a confession

Factual Questions
1

OK another one of my Prisoner Cell block H questions.

Eve and her solicitor are talking about her case. She tells him she killed the guy. The solicitor says well then I am off your case but then they see a jiggle of the door handle.

Apparently the guard Joyce has been listening in. Of course, this being TV, Eve later on beats the crap out of Joyce afraid she will tell. She nearly kills Joyce. Which she hopes to do as this will prevent her from telling.

But what happens in real life? I don’t believe Joyce’s statement could be used in court but on the otherhand if Eve was guilty how could she get off?

2

One hopes the prosecution is doing its job and investigating the case, rather than this optimistic method of arresting someone who they hope will make an admission in the hearing of someone who will testify to it and convince the jury thereby.

3

A confession is usually only valid if it is made and attested to by the confessor -and can still be recanted (with varying success) later. Even if you directly confess verbally to a police officer, and deny it later, it’s a ‘he said, she said’. The courts will likely believe the officer, but it may not carry full weight. That’s why they have you write it in your own words, with a line or two saying that you’re doing it freely, etc. and then sign it. Of course, your statement that the confession was freely made could also be coerced, so it’s not uncommon to use audio or, now, video recordings.

The courts can’t use the heresay testimony of an eavesdropping guard in real life.
a) it is a violation by the state (the guard is an agent of the state) of attorney client privilege
b) eavesdropping is illegal, and here the prisoner probably does have ‘a reasonable expectation of privacy’ aside from confidentiality
c) the guard would have no direct knowledge of the crime, only a report of hearsay
d) this doesn’t fall under the usual exceptions to the hearsay rule (e.g. an “excited utterance” or “admission against self interest”)
e) the guard wouldn’t have much credibility, given a and b, in a “he said, she said” scenario

Lawyers don’t go to extraordinary lengths to assure that they are not overheard in jailhouse interviews because they know they can get it thrown out as a violation of confidentiality. In the case you described, it’s not really a ‘confession’.

On the other hand, there have been quite a few cases where law enforcement has tapped the intercom handset that bridge the plexiglass in the visit room or otherwise monitored, deliberately or accidentally. Almost all cases were decided against the state

There were numerous widespread violations in LA county in the second half of the 90’s, together they added up to thousands of cases, but that includes abuses not covered by your example. Similar issues arose in e.g. several “NY mob” ('70/80s) and “drug kingpin” trials ('80s) when court ordered wiretaps overheard attorney client conversations) The issue wasn’t whether this was a usable confession - it absolutely was not. The issue was whether law enforcement could use information acquired from the privileged to acquire or develop leads, which they could then investigate, develop and substantiate by other means. Sometimes it was allowed (e.g. if the cops could show they would have found out anyway), but often it was ruled “fruit of the poisonous tree” - i.e. “You shouldn’t have heard that, so you can’t benefit from it to build your case - the root was tainted, so the fruit is tainted”. Courts have tended to defend the rights of the individual, and expect law enforcement to know the boundaries.

Besides which, MaryEFoo is right,

4

I don’t disagree with your conclusion, but I have some problems with your rationale:

I don’t see what the guard being an agent of the state has to do with attorney-client privilege. The privilege does doesn’t vanish and appear based on an eavesdropper being an agent of the state. If a fellow inmate overheard the statement from Eve to her lawyer, would that make it admissible? Clearly the fellow inmate is not an agent of the state.

Here you are conflating several principles. First, I’d like a cite for the general proposition that “eavesdropping is illegal.” The ‘reasonable expectation of privacy’ is language typically applied to Fourth Amendment analysis, so perhaps you mean to say that the guard’s listening in is violative of the Fourth Amendment. I agree with that proposition, but note that it’s not so much ‘illegal’ as it is simply inadmissible. That is, there is not necessarily a separate criminal penalty for the guard for her actions.

I agree, but I’m curious to hear why you think it’s not an admission against interest, and why, if you were a judge, you’d rule against it being admissible under the residual exception.

Isn’t that a question of fact for the jury, not a question of admissibilty?

  • Rick
5

Now, IANAL, but wondering about this. Is the key for inadmissibility whether the attorney and client took reasonable precautions to avoid being overheard?
[i.e if they were sitting on a bus loudly discussing the case and a passenger overheard a confession, admissible; while if they were huddled in corner whispering but a freak of acoustics allowed someone across the room to overhear, inadmissible?]

6

The presence of a third party destroys the privilege - unless the third party is a prospective or actual co-defendent, or someone to whom the privilege extends - a translator, for example. The state of mind of the declarant is what matters - if someone has bugged the room or is hiding in the fold-out sofa, the privilege survives.

So speaking loudly on a bus probably waives any privilege claim, while huddled whispering does not.

  • Rick
7

Does it matter that I assume that a guard SHOULD know they are not allowed to listen? So why was she listening?

For those who don’t know Prisoner was an old Australian Soap Opera.