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Jury in Aaron Hernandez Murder Case Will Hear Recordings of his Jailhouse Phone Calls

The first-degree murder trial of former New England Patriots star tight end Aaron Hernandez continues this week, with the attorneys arguing over whether recordings of Hernandez’s jailhouse telephone conversations should be played for the jury.

Hernandez is charged with murder and firearms offenses in connection with the fatal shooting of his one-time friend Odin Lloyd in June of 2013.  The Commonwealth contends that Hernandez and two co-conspirators killed Lloyd and left his body in an industrial park near Hernandez’s North Attleboro mansion.  There has been speculation that Hernandez shared details of his unrelated criminal conduct with Lloyd and later regretted it, which led to the shooting.  In addition to the Lloyd case, Hernandez has been indicted for double murder related to a shooting that occurred in the South End of Boston in 2012.  Hernandez has asserted his innocence in both cases.

According to the Boston Globe, prosecutors asked the judge today to allow them to play recorded telephone calls Hernandez shared with various other people who were involved in the investigation.  The Commonwealth wants the jury to hear conversations Hernandez had with his cousin, Tanya Singleton, who has been diagnosed with late-stage cancer.  Hernandez allegedly told Singleton that he had set up trust funds for her two sons and asked her not to tell anyone.  The Commonwealth contends that Hernandez was attempting to buy Singleton’s silence, while the defense team argued that Hernandez was simply helping out a relative (despite the fact that Hernandez never actually set up the trust funds at all).  There are also recordings of Hernandez instructing his fiance, Shayanna Jenkins, to drop off money at Singleton’s home.  Singleton ended up going to jail for refusing to testify in front of the grand juries that were investigating Hernandez.  Jenkins has been charged with perjury related to testimony she has given in the case.  The Commonwealth is considering calling Jenkins to testify at Hernandez’s trial, as Jenkins has been granted immunity.

The judge said she is going to allow the jury to hear some of the phone call recordings.  This case represents another painful reminder to criminal defendants who are being held in custody pending trial that they should never, ever talk about their case in phone calls made from the jail.  In recent years, the various prosecutors’ offices in Massachusetts have regularly used jail phone calls against defendants at their trials.  The Supreme Judicial Court has ruled that prisoners do not have a reasonable expectation of privacy in phone calls made from jail.  Therefore, the Commonwealth does not need a warrant to record or seize the contents of jailhouse phone calls.  There is a recorded warning every time a prisoner makes or receives a phone call from jail reminding him or her that the call is being recorded and could be used at the upcoming criminal trial.  Despite these warnings, a stunning number of defendants continue to talk about their cases, make damaging statements, and get burned at trial for doing so.

Clients often ask why the government does not need a warrant to listen to jailhouse phone calls, whereas law enforcement officers cannot ordinarily listen to private phone calls without getting prior court approval.  The answer is that the Fourth Amendment to the United States Constitution protects private communications only when the participants have a “reasonable expectation of privacy” as they are talking.  Therefore, someone who is talking on the phone from his or her own house or car can reasonably expect that the conversation is private, whereas a prisoner is told that the phone call is being recorded.  If the phone call is being recorded, the prisoner does not have a reasonable expectation of privacy.

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