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Chris July 20, 2016

When I am not busy practicing real law, I enjoy the fictional practice of law in TV shows and movies. I watched the first two episodes of the new HBO miniseries “The Night Of,” which is the story of a young Pakistani-American man, played by Riz Ahmed, charged with murder in New York. John Turturro plays his attorney. So far the two episodes have focused on his arrest and subsequent detention in the police precinct and the Tombs, arraignment, denial of bail and remand to Riker’s Island. It took two hours to do what most legal TV shows either skip or spend a couple of minutes on before heading into trial. The pace allows for these events to develop and from a defendant’s perspective are slow and unpleasant. We see how the protagonist is transported with other suspects, is searched and also just sits around waiting.

We also see a perspective from his family who have to figure out where he is and how to see him. That is not hard to do when someone is arrested in a small town with one police department. New York has many, many precincts and jail facilities. At one point Naz’s parents visit him in the precinct. He talks to them and they talk about his charges; he denies that he committed the murder. The police tell his attorney. His attorney tells him not to talk to anyone about the case except him because he is in the only one for whom their communications are private.

I regularly tell clients that they need to be careful when talking to anyone because statements by a defendant can be used against him or her in a criminal case subject to certain exceptions, attorney communications being the most significant. While the police cannot question a represented defendant without the attorney’s consent, they can still listen. Additionally, non-government actors can talk to defendants and become witnesses.

Jails in Connecticut and elsewhere are monitored. Not only are prisoners watched by guards, their communications with visitors, both in person and over the phone are monitored. Mail going in and out can be opened and read by corrections staff. The exception again is attorney communications. Anyone who has listened to the Serial podcast or called a CT prisoner over the regular phone system should have heard the message that says the calls “may be monitored or recorded.” Trust me, they are telling the truth. Those calls are recorded. I had two cases in which characters talked about the cases on recorded lines and the recordings were used against them.

The reason why there is no Fourth Amendment issue is that there is no expectation of privacy–not only does the call involve a prisoner who already has a lesser right to privacy (among other reduced rights), the speakers are informed of the monitoring. There are no Fifth, Sixth or Fourteenth amendment issues because the discussions don’t involve a government actor.

The second episode of The Night Of included a scene in which a prisoner attempts to smuggle a cell phone into jail in a body cavity. That was probably to have unrestricted communications with the outside. Cell phones are among the most prized of contraband in jails for that reason.

I highly recommend The Night Of. I also highly recommend watching what you say when talking to or visiting prisoners. You should have your Connecticut criminal defense attorney handle communications regarding cases.