E.D.Ky.: Jail call to wife that def knew would be recorded not privileged

In a jail call, marital privilege succumbs to the lack of a reasonable expectation of privacy because defendant knew his calls were being recorded. As to a letter to his wife in his cell, it disclosed a request to her to commit a crime that wasn’t privileged. United States v. Sutton, 2018 U.S. Dist. LEXIS 11109 (E.D. Ky. Jan. 24, 2018):

The telephone calls are admissible because they do not meet the third element of the marital communications privilege test as they were not made in confidence. Case law has established that prisoners do not have an expectation of privacy in jail calls. Adams, 321 F. App’x at 462. There is no expectation of privacy, largely in part because “inmates are warned that calls made from this location are being recorded.” United States v. Hadley, 431 F.3d 484, 489 (6th Cir. 2005). Parties do not object to this fact, that the Defendant knew his calls with his wife were being recorded. Accordingly, he had no reasonable expectation of privacy in his telephone communications with his wife from jail. Accordingly, the telephone calls fall outside marital privilege and are admissible.

Assuming the note found in Sutton’s cell was written to his wife, it is admissible because it shows ongoing illegal activity that he was instructing his wife to commit. …

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