Monday, February 15, 2016

Can the jail secretly record inmates everywhere?

Recently, the State Attorney's Office in and for the Fourth Judicial Circuit of Florida outed themselves and revealed that they have started recording inmates everywhere in the Duval county pre-trial detention facility.  While recording, they reveal that they have recorded a confession by Donald Smith, the defendant in the murder of Cherish Perrywinkle.  Furthermore, the State intends to use the recording at trial.  

But the question remains...can they use it?  Of course they can, but the question goes a little further... can they legally use it without it becoming a reason that the case comes back on appeal.   When looking at this issue, the Court will consider the defendant's Constitutional rights.  Specifically, the question will rest on the Fourth Amendment rights against unlawful search and seizure, and the Fifth and Sixth Amendment rights to counsel (an attorney). 

The United States Supreme Court (USSCT) has said two important things on this subject.  First, inmates have no reasonable expectation of privacy in jail.   This is exactly what the State is saying to justify the use of the tape under the Fourth Amendment.  If you have no expectation of privacy, any search or seizure is lawful.   However, the USSCT has also said,  "Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."    The law clearly states, any secret recording.  Therefore, the State may have a problem. 

Eventually both sides will make arguments to the trial judge, who will rule on the admissibility.   Depending on what the judge decides, the evidence may be used or is excluded.  If the evidence is admissible, the State has to decide if they introduce it or not.  So do they need it?  Mr. Smith has allegedly made several confessions.  He allegedly showed the police where to find the body of Cherish.  The State probably has enough.  The risk of using evidence that is not clearly admissible is that the entire case may have to be re-tried in several years if appellate courts determine that the evidence should not have come in.  

In a case as painful and horrific as this one, it would be unwise for the State to risk a very expensive re-trial on evidence that probably won't enhance the evidence in the case.   We will just have to wait and see...

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