Incriminating Evidence Extracted from Jail Calls

By: Gerri L. Elder

Thanks to many high profile cases in the news, the public has had the opportunity to hear parts of some inmates’ telephone conversations with their families and friends.

While entertaining (or not), these conversations are not recorded for the benefit of the press. Many jails across the country now use automated recording systems to monitor and record inmates’ phone calls. In some cases, comments made during these calls can become evidence in criminal trials.

David Harris, a deputy prosecutor in Washington County, Arkansas, has spent hours listening to recorded jailhouse calls in search of incriminating evidence.

In one case, 700 calls lasting up to 15 minutes each were made by one inmate who was in jail for just five months. Listening to all of those hours of phone conversations netted nothing for the prosecution.

Because listening to every phone conversation of every inmate consumes time and resources, it cannot be done in every case. When inmates get bored, they tend to make phone calls – lots of phone calls. For example, at the jail in Washington County, approximately 530 inmates recently made roughly 10,000 collect calls in one 24 hour period.

In Washington County, the sheriff’s office uses a digital recording system that tracks and stores inmates’ calls made from pay phones at the jail. The inmates are assigned a PIN code that tracks the calls. Police and prosecutors can later use the PIN to access the recorded calls via a secure Web site.

Incriminating Statements Used at Criminal Trial

The Arkansas Democrat Gazette reported that in Washington County, Arkansas, defendants who were charged in connection with the April 2007 deaths of Kendall Rachell Rice and Kevin Barkley Jones incriminated themselves during telephone calls from the jail to relatives. Although their criminal defense attorneys objected to the calls being used against them, the judge ruled that the use of statements recorded during jailhouse calls do not violate a defendant’s 5th Amendment right against self incrimination.

Gregory Christopher Decay, 22, was convicted of the murders of Rice and Jones and was sentenced to death. During the trial, prosecutors played recorded jailhouse calls featuring Decay telling his mother and brother about how he shot and killed the victims.

Decay’s co-defendant Jesse Lee Westeen, 21, was sentenced to 50 years in prison for being an accomplice to first-degree murder. Prosecutors also had calls that Westeen had made to his relatives, during which he admitted that he drove Decay to the victims’ apartment, knowing that Decay intended to kill them.

Westeen’s criminal defense lawyer argued that the practice of recording jailhouse calls is a stealthy form of interrogation. Tim Buckley argued that the calls should be excluded from the criminal trial on the grounds that Westeen had the right not to incriminate himself.

Buckley also argued that at an initial court appearance, inmates are told by the judge that they are allowed to make calls to friends and family and this gives them the impression that they can speak freely without incriminating themselves. He said that the recorded message that the inmate hears at the beginning of a call saying that the call “may” be monitored or recorded is not sufficient and the warning should be stronger.

Circuit Judge William Storey ruled that the practice of recording inmates’ telephone calls is not an active interrogation and therefore does not require a Miranda rights warning.

John Wesley Hall Jr., a criminal defense lawyer who is president of the National Association of Criminal Defense Lawyers, said Buckley’s argument is one that has failed in dozens of cases. Courts have consistently ruled that the recorded message at the beginning of inmates’ calls is adequate warning.