Inmate's 'Cop Out' Jail Phone Message to Lawyer Wasn't Privileged, 2nd Circuit Rules
A Spanish-speaking New York prison inmate found out the hard way that sending a message to his lawyer via his sister, on a recorded jailhouse phone, wasn’t a good idea.
Joel Rodriguez had no reasonable expectation of confidentiality when he told her to tell his attorney that he wanted to discuss whether to “cop out” to a plea before he was indicted, and hence the statement wasn’t protected by attorney-client privilege, a federal appeals court has ruled.
Rodriguez could have simply told his sister that he needed to talk to his lawyer, or called the attorney directly. Thus, because he had a lawyer and knew the jailhouse phone was recording his conversation, it was admissible, held the New York City-based 2nd U.S. Circuit Court of Appeals in an opinion (PDF) today.
The opinion doesn’t explain why Rodriguez went to trial rather than taking a plea in the cocaine-distribution case. A federal judge in the Southern District of New York correctly determined that the “cop out” phone conversation was admissible to show consciousness of guilt, the appellate panel said.
Likewise, the panel agreed with the trial court that the phone message wasn’t excluded from evidence under an exception for plea discussions, because Rodriguez was discussing a possible plea with his sister rather than a lawyer.
There is hope, however, for other inmates who might make a similar mistake in the future: The 2nd Circuit opinion notes that several possible admissibility issues weren’t preserved for appeal.
“As Rodriguez did not challenge below or on appeal whether the substance of the call was indeed probative of guilt or whether its probative value outweighed its prejudicial value, … we need not decide the question here,” the opinion states, citing Federal Rules of Evidence 401 and 403.
Hat tip: New York Post.
