The Supreme Judicial Court of Massachusetts today ruled that prosecutors may subpoena recordings of phone calls made from jails and prisons for use in grand jury investigations and trials, affirming the propriety of a practice that has led to convictions for dozens of violent crimes.

“The SJC affirmed our operating theory that there’s no privacy claim when an inmate is warned that his or her call is being recorded,” Suffolk County District Attorney Daniel F. Conley said, hailing the majority decision authored by Justice Roderick Ireland. “Jail calls have been instrumental in proving murder, witness intimidation, perjury, and other offenses, and we expect to continue to use them.”

The case arose out of a 2008 Suffolk County grand jury investigation during which prosecutors subpoenaed recordings of phone calls placed by an inmate at the Suffolk County Jail. The Suffolk County Sheriff’s Department moved to quash the subpoena in light of a recent Superior Court decision in an unrelated case, the motion was denied, and the case was appealed to the SJC in order to clarify Massachusetts law.

“[T]he detainee or inmate could have no reasonable expectation of privacy in the recorded telephone conversations where all parties have notice that calls are subject to monitoring and recording, and further, where the recording and monitoring is justified by legitimate penological interests,” Justice Ireland wrote in the four-to-three majority decision.

“The Federal courts have concluded that, where inmates have notice that their telephone conversations are monitored and recorded, such monitoring and recording does not violate the Fourth Amendment, because there could be no subjective expectation of privacy that society is prepared to recognize as reasonable,” the decision continues.

In recent years, recorded phone calls between inmates and their associates have been used to convict JESSICA DEANE (D.O.B. 9/16/83); JASON MEEKS (D.O.B. 3/30/81); JOHN GOMES (D.O.B. 2/19/77); and MICHAEL HART (D.O.B. 7/4/56) of murder and other offenses.

“Barring the use of jail calls could have resulted not just in acquittals but in retaliation against witnesses,” Conley said. “These tapes provide a valuable tool in solving and prosecuting violent crime.”

In a dissenting opinion, Chief Justice Margaret Marshall wrote that “We do not know–if the individual is a pretrial detainee–whether he has been indicted. We do not know whether any of the telephone calls are covered by any privileges–for example whether any telephone calls were placed to the pretrial detainee’s pastor, psychotherapist, or spouse. We do not know whether the inmate or pretrial detainee had any practical means of communicating with his family or pastor or physician except by telephone.”

Suffolk prosecutors noted that they would have complied immediately with their legal and ethical obligation to inform the Court if the matter pending before it is moot – as it would be if the grand jury at issue in this case had returned an indictment, and would not have sought to bring the records to the grand jury if the case had already been indicted.

Prosecutors also noted for the court that, under Massachusetts law, privilege is abandoned when third party – such as the sheriff – is present for a meeting between a wife and husband, psychotherapist and client, or pastor and parishioner, and that the monitoring and recording would have precluded any legally privileged conversation from taking place.

Finally, as was pointed out at oral argument and in the sheriff’s manuals submitted to the court, all inmates have the opportunity to engage in unmonitored, in-person visits at their facility with persons with whom they wish to have a conversation that will not be recorded.

Assistant District Attorney Jack Zanini, chief of Conley’s Appeals Division, argued the case before the SJC.