Absolutely, they can.
But, do the police or prosecutor’s actually listen to the jail calls?
Yes, they do. It is common for recorded audio from jail calls to be turned over to defense attorneys as evidence that the State intends to use at trial against a criminal defendant.
You should take the automated warning that the call is being recorded very seriously
Why do the police and prosecutor’s listen to my private phone calls?
Because most people ignore the automated warning and talk about the facts of the case to their loved ones, friends, or even the alleged victim. In other words, they listen to the calls because they hope to uncover an admission of guilt, or to find new evidence to use against the defendant at trial.
Can the phone call still be used at trial even if we did not talk about the case?
Sometimes jail calls are used to file new, separate charges against the defendant. For example, if a temporary protection order (TPO) was issued by the judge that ordered the defendant to have no contact with the alleged victim, and the defendant calls the alleged victim or answers a call from the alleged victim while in jail, then that defendant can be charged with a new offense for violating a protection order. Another common example of new charges be filed is when a defendant tells a witness or the alleged victim to ignore a subpoena or not to testify. Those statements can be used to file intimidation of a witness charges against the defendant.
Another way that jail calls can be used against a defendant at trial is if the defendant’s statements in the calls and during trial are contradictory. In State v. Whittaker, the First District Court of Appeals recently allowed the prosecution to use the defendant’s jail calls, two with the victim and one with a friend, to attack the credibility of the defendant’s testimony that he gave during trial. The defendant was convicted of domestic violence even though the victim never testified, and the First District Court of Appeals upheld his conviction.
Does this mean I should not call my loved one or friend in jail?
No; it just means that you should never discuss the case/reason that your loved one or friend is in jail over the recorded jail phoneline. Those conversations are not privileged, and are frequently used by the State as evidence against defendants.