The Supreme Court of Georgia upheld a judge’s decision to admit conversations the defendant had with an attorney who he was trying to hire. Rogers v. State, S11A0659. While in jail awaiting trial, Rogers placed a telephone call to his girlfriend. The girlfriend then created a three-way call to an attorney. During the conversation Rogers made statements that were introduced as evidence against him at trial.
The Court of Appeals agreed with the judge that the statements were admissible because the three-way call by the girlfriend eliminated any attorney-client privilege. The Court of Appeals noted that the call to the attorney was initiated with the girlfriend’s participation; there was no evidence that the girlfriend stopped listening to the conversation and in fact her comments after the connection with the attorney was closed indicated that she heard the conversation. The attorney-client privilege does not cover conversations in which third parties are present for attorney-client discussions. Taylor v. Taylor, 179 Ga. 691 (1934).
The Court of Appeals noted that Rogers did not inform the jail officers that he wished to converse with an attorney so that he could do so on a telephone without a recording device being used. O.C.G.A. § 16-11-62 (2)(A)( it shall not be unlawful:(A) To use any device to observe, photograph, or record the activities of persons incarcerated in any jail, correctional institution, or any other facility in which persons who are charged with or who have been convicted of the commission of a crime are incarcerated, provided that such equipment shall not be used while the prisoner is discussing his or her case with his or her attorney). The evidence showed that inmates were notified in a handbook that the calls were recorded, signs were placed on each telephone warning that the calls were recorded, a message was played over the telephone before each call stating that calls could be recorded and such a message appeared on the call of Rogers that was used against him. The Supreme Court held that Rogers had no reasonable expectation of privacy in the call he placed to his girlfriend and the three-way call placed to the attorney. Preston v. Satte, 282 Ga. 210 (2007).