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70 UCLA L. Rev. 1084 (2023)
Captive without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals

handle is hein.journals/uclalr70 and id is 1128 raw text is: 

Captive Without Counsel: The Erosion of Attorney-Client

Privilege for Incarcerated Individuals

Isabelle  M.  Geczy


To be incarcerated is to be deprived of the choices available to those in the free world. In the
absence of those choices, carceral facilities dictate the ways that individuals may engage. If an
incarcerated person wants to communicate with someone who is not in their facility, they have very
limited options. Because of the extended erosion of attorney-client privilege, for years attorneys
have identified in-person visitation as the only way to ensure attorney-client privilege is protected
while they communicate with their incarcerated clients. When in-person visitation was eliminated
due to COVID-19  lockdowns,  every communication  method that incarcerated individuals were
able to access carried with it the likelihood or certainty of surveillance, destroying their access
to communication  with attorneys that preserved the privileged nature of such communication.
Herein lies the essential attorney-client privilege issue laid bare by COVID-19: the state has
incarcerated people, deprived them of communications  protected by attorney-client privilege,
and placed specific surveillance on every other meaningful and effective method people have to
communicate  with their attorney. These actions are even more damning in light of the multitude
of individuals held in pretrial detention, many unable to pay bail, who then are restricted access to
their own defense counsel, stealing their ability to participate in their own defense. Such deprivation
runs contrary to the Sixth Amendment and is a direct illustration of why meaningful protections
must be placed on communications between  incarcerated individuals and their attorneys. What
follows is a study of the four main alternative communication methods offered during COVID-19
lockdowns to incarcerated individuals: mail, phone, email, and video calls, and the ways in which
each fail to afford communications actually protected by attorney-client privilege. This Comment
then identifies how holistic and overarching reforms of communication systems for incarcerated
individuals and their attorneys must be implemented in order to uphold attorney-client privilege
and the criminal defendant's Sixth Amendment constitutional right to counsel.

70 UCLA L. REV. 1084 (2023)

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