We Orlando defense attorneys spend time speaking with our clients over jail phones, it happens. Fortunately, the constitution protects such conversations between attorney and client. But there are plenty of unprotected conversations going on, and this article is my public service announcement, telling everyone what happens when you say stupid things on the jail phones.
I mentioned that everything’s recorded on a jail call, right? Well, there’s always a few folks out there that can’t take a hint. We find one such person in Lucas v. State, 2011 WL 269519 (Fla. 4th DCA 2011).
Lucas was charged with burglary of a dwelling and aggravated battery, much of which was against his girlfriend. The incident involved Lucas’ girlfriend screaming to neighbors for help, “he is going to kill me”. The neighbor arrives, and witnesses the girlfriend grabbed by her throat, battered, etc. As these things sometimes go, the choked girlfriend decided not to press charges and refused to cooperate. At trial, the state admitted recorded jail calls between Lucas and his girlfriend where he told her to “plead the fifth” and encouraged her not to testify. The defendant appealed the admission of these phone calls, but the appeals court upheld their admission, finding that “evidence that an accused ‘in any manner endeavors to evade a threatened prosecution … is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.” Id. [internal citations omitted]
As an important side note here, as expected the girlfriend did not appear for trial, but the trial court allowed her damaging statements to come into evidence because her unavailability was caused by the defendant’s actions encouraging such. Normally, these statements would violate the Confrontation Clause (a defendant must be allowed to confront his accuser–can’t do that if the statement is admitted without the person who made the statement!). But the Fourth DCA didn’t agree, finding that the Confrontation Clause does not apply to cases where the unavailability is caused by the defendant.
So remember, check yourself before you wreck yourself. Peace out.