One of the most frustrating parts of criminal defense is watching a client create evidence that did not exist before.
I can challenge a traffic stop. I can attack an identification. I can cross-examine a witness. I can argue that the State cannot prove its case beyond a reasonable doubt.
What I cannot do is make a recorded jail call, an Instagram post, or a photograph disappear.
No matter how many times criminal defense lawyers tell clients to keep their mouths shut about their cases, people continue to talk. They call friends and family from jail. They discuss witnesses. They post photographs. They document where they are and who they are with.
And prosecutors are paying attention.
Assume every jail call is recorded, and assume a prosecutor may listen to it. You do not have to confess for a call or a post to damage your case.
- Who may be listeningProsecutors, police, detectives, investigators
- What it can proveAdmissions, coordination, witness contact, order violations
- Reconciled with the alleged victim?Only a judge can change a court order
- Deleted the post?Screenshots and shares may already exist
Assume Every Jail Call Is Being Recorded
If you are in jail and using a jail telephone, assume the call is being recorded and monitored.
The person listening later may not just be your mother, spouse, girlfriend, boyfriend, or friend. It may be a prosecutor, police officer, detective, or investigator.
Defendants sometimes think that because they are speaking casually—or using slang, vague language, or code words—the conversation cannot hurt them.
That is a dangerous assumption.
A jail call can provide evidence of:
- an admission about what happened;
- knowledge of facts surrounding the case;
- an attempt to coordinate stories;
- an effort to influence a witness or alleged victim;
- a violation of a no-contact order;
- a threat or other improper communication;
- consciousness of guilt; or
- a reason for a judge to deny release.
And unlike a witness whose credibility can be challenged in court, a recording allows the judge or jury to hear the defendant’s own words.
A Jail Call Can Keep You in Jail
I recently represented a defendant who had what I considered to be a strong argument for release on bail.
Then the State obtained his jail calls.
During those calls, he was attempting to convince the alleged victim not to cooperate with the prosecution.
That changed the entire bail hearing. Instead of the focus being on whether reasonable conditions could safely allow my client to be released, the State now had recordings it could use to argue that he was attempting to interfere with the prosecution of the case.
The judge denied bail.
Had my client simply said nothing about the case, I believe I would have had an excellent chance of getting him released.
Sometimes the most damaging evidence at a bail hearing is evidence the defendant created after being arrested.
That is something defendants often fail to appreciate. You do not have to confess to the underlying crime for a jail call to seriously damage your case. If you are being held before trial, it is worth understanding what a commitment pending hearing actually means and how a bail review works.
Do Not Try to “Fix” the Case From Jail
Being incarcerated is stressful. A defendant may feel powerless and want to do something to improve the situation.
You may want to call the alleged victim and smooth things over. You may want a family member to speak to a witness. You may want someone to explain what “really happened.” You may want to convince a person not to come to court or not to cooperate with prosecutors.
Don’t.
A criminal case is not something you should try to manage through jailhouse telephone calls. What you believe is an attempt to “clear things up” may look very different when a prosecutor plays the recording in court.
If there is an issue involving a witness or alleged victim, talk to your lawyer. Your attorney can determine what contact is lawful and appropriate and whether an investigator or other professional should be involved.
Social Media Can Be Just as Damaging
The same rule applies once you are outside the jail: stop creating evidence for the prosecution.
People voluntarily document enormous portions of their lives on social media. They post their locations, activities, relationships, vacations, possessions, and the people they are spending time with.
That information can become evidence.
I once represented a client who asked the court for permission to take a Caribbean vacation.
The request was denied.
She went anyway.
Then she posted about the vacation on social media.
Prosecutors saw the posts. A warrant was issued based on the alleged violation of her probation conditions, and she was arrested when she returned through the port of entry.
Think about that sequence. The court said no. She went anyway. And then she publicly documented exactly what she had done.
There was very little left for anyone to investigate.
Making Up Does Not Cancel a No-Contact Order
Another situation I see involves court-ordered no contact.
A defendant is ordered to have no contact with an alleged victim. Later, the couple reconciles. The alleged victim wants to see the defendant. Both people may believe that because they have made up, the no-contact condition no longer matters.
It does.
The alleged victim cannot simply cancel a judge’s order.
I had a case where a defendant had been ordered to have no contact with the alleged victim. The couple reconciled and began spending time together again. Then social media posts showed the two of them together.
Prosecutors discovered the posts. A warrant was issued, and the defendant was arrested for allegedly violating the court’s no-contact condition.
The relationship had changed. The court order had not.
This is especially important because defendants sometimes believe, “She invited me,” “He wanted me there,” or “We worked everything out.” None of those things necessarily changes what the judge ordered.
If the court has ordered no contact, follow that order until the court modifies it. If both parties want to resume contact, speak with your attorney about whether the court can be asked to change the condition. The same logic applies to Maryland protective and peace orders — the order stays in force until a judge changes it.
Until the judge changes the order, assume it remains in effect.
Social Media Can Prove the Violation for the State
Social media makes these situations even more dangerous because people often create the evidence themselves.
- A photograph can establish who you were with.
- A tagged location can establish where you were.
- A vacation post can establish that you traveled somewhere you were prohibited from going.
- A photograph with an alleged victim can provide evidence of contact prohibited by a court order.
- A direct message or comment can potentially demonstrate communication.
And deleting a post afterward does not necessarily solve the problem. Someone may already have taken a screenshot. Another person may have shared it. Investigators may already have preserved it.
The better approach is not to create damaging evidence in the first place.
Listen to the Conditions the Judge Gives You
When a judge releases you pending trial or places you on probation, the conditions imposed by the court are not suggestions.
If the judge says no contact, that means no contact unless and until the court changes the order. If the court places restrictions on travel, follow them. If you are told not to go somewhere, do not go there.
And if you have any doubt about what a condition means, ask your lawyer before acting. Do not make your own interpretation of the order and hope the judge agrees with you later. Missing a court obligation can carry its own consequences — including a body attachment.
What Should You Say on a Jail Phone?
When it comes to the facts of your criminal case, usually as little as possible.
Talk to your family about ordinary life. Tell them you love them. Make whatever appropriate arrangements need to be made at home.
But do not use a recorded jail call to discuss:
- what happened;
- what you told police;
- what a witness should say;
- what an alleged victim should do;
- what evidence exists;
- what someone should delete or hide;
- how people should coordinate their stories; or
- how you plan to defend the case.
Discuss the substance of your case with your attorney through appropriate attorney-client communications.
Your Lawyer Cannot Undo Everything You Say
A criminal defense lawyer’s job is to challenge the government’s evidence and protect the client’s rights. That job becomes considerably harder when the client keeps giving the government new evidence.
The advice is simple:
- Stop talking about your case on recorded jail calls.
- Stay off social media when your case, location, relationships, or court-ordered conditions could become an issue.
- Do not contact an alleged victim or witness when the court has ordered you not to.
- Do not assume that an alleged victim’s permission overrides a judge’s order.
- And when you have something important to say about your case, say it to your lawyer.
There are very few criminal cases that improve because the defendant talked more. There are plenty that get worse.
Talk to a Maryland Criminal Defense Attorney
If you or someone you love is in custody, or is facing charges with court-ordered conditions attached, the safest move is to get advice before you say anything else. Our team handles criminal defense and DUI and DWI cases in Annapolis and in courtrooms across Maryland. An arrest is not a conviction — and being charged does not mean you are guilty.
Call 410.268.5515 or request a free consultation. Consultations are free, and what you tell your lawyer stays between you and your lawyer.
Frequently Asked Questions
Are jail phone calls recorded in Maryland?
If you are in jail and using a jail telephone, assume the call is being recorded and monitored. The person listening later may not just be family — it may be a prosecutor, police officer, detective, or investigator.
Can a jail call keep me from getting bail?
Yes. You do not have to confess to the underlying crime for a jail call to seriously damage your case. In one case, recordings of a defendant urging the alleged victim not to cooperate changed the entire bail hearing, and the judge denied bail.
Can prosecutors use my social media posts against me?
Yes. A photograph can establish who you were with, a tagged location can establish where you were, and a vacation post can establish that you traveled somewhere you were prohibited from going.
If we reconciled, does a no-contact order still apply?
Yes. An alleged victim cannot simply cancel a judge’s order. If the court has ordered no contact, follow that order until the court modifies it, and speak with your attorney about whether the court can be asked to change the condition.
Does deleting a post remove it as evidence?
Not necessarily. Someone may already have taken a screenshot, another person may have shared it, or investigators may already have preserved it. The better approach is not to create damaging evidence in the first place.
What can I safely talk about on a jail call?
Talk to your family about ordinary life and make necessary arrangements at home. Do not use a recorded jail call to discuss what happened, what you told police, what a witness should say, or how you plan to defend the case. Discuss the substance of your case with your attorney through appropriate attorney-client communications.
Mandeep S. Chhabra
Mandeep is a Maryland trial attorney whose practice centers on criminal defense and DUI. He has been recognized by Super Lawyers, Avvo and Martindale-Hubbell, and is a member of the Million Dollar Advocates Forum. He writes here about what he sees in Maryland courtrooms.