Do Jail Calls Count as Evidence? (Spoiler: Yes, and They Can Ruin You)

By: John Guidry

We Orlando defense attorneys spend a lot of time speaking with our clients over jail phones. It happens. Fortunately, the Constitution protects those conversations under attorney-client privilege.

But let me be clear: that protection only applies to your lawyer.

There are plenty of unprotected conversations going on every day from the Orange County Jail, and this is my public service announcement: Everything you say on a jail phone is being recorded.

I mentioned that everything is recorded, right? Well, there are always a few folks out there who just can’t take a hint. They get on the phone with mom, a girlfriend, or a buddy, and they talk about the case. They think because they are speaking in code, or just whispering, that it’s safe. It isn’t.

One such person found this out the hard way in the case of Lucas v. State.

Arrested and calling home? Stop talking about the facts.

Call John immediately at (407) 423-1117. I am the only person you should be discussing your case with.

The Legal Breakdown: Lucas v. State

Let’s look at Lucas v. State, 67 So. 3d 332 (Fla. 4th DCA 2011). This case is a perfect example of how “running your mouth” can destroy a defense strategy.

• The Charge: Lucas was charged with burglary and aggravated battery. The allegations were ugly: his girlfriend was seen by neighbors being choked and battered.
• The “Strategy”: As these cases sometimes go, the girlfriend decided she didn’t want to press charges. She refused to cooperate. Usually, this is good news for the defense.
• The Mistake: Lucas got on the jail phone. He called his girlfriend and told her to “plead the fifth” and encouraged her not to show up for court.
• The Result: The State pulled the tapes. They heard every word.

The Ruling: Even though the girlfriend didn’t show up for trial, the State was allowed to use her prior damaging statements against Lucas.

Normally, this would violate the Confrontation Clause of the Constitution (you have a right to face your accuser). But the court ruled that Lucas lost that right because of Forfeiture by Wrongdoing.

Basically, the court said: You can’t complain that the witness isn’t here if you are the reason she isn’t here. Because Lucas tried to manipulate the system, the system removed his constitutional protection and let the jury hear everything.

John’s Takeaways

If you or a loved one is sitting in jail in Orange, Seminole, or Volusia County, memorize these rules:

• The “3-Way Call” Trap: Don’t think you are slick by having your girlfriend call your mom, and then having mom add you to the line. The jail recording system flags these, and prosecutors love listening to them.
• Codes Don’t Work: Calling drugs “tickets” or “girls” doesn’t fool anyone. Prosecutors have heard it all.
• Witness Tampering is a Felony: Telling a witness to “take a vacation” or “don’t sign the subpoena” is a separate crime. It also allows the State to use evidence they normally couldn’t use.
• Silence is Golden: The only person you should discuss the facts of your case with is your attorney. Period. Tell your family you love them, talk about the weather, but do not talk about the night of the arrest.

Keep Your Case Clean

The jail phone is the prosecutor’s best friend. Don’t give them the evidence they need to convict you just because you were bored and wanted to chat.

If you are facing charges in Orlando, Sanford, Kissimmee, or Daytona, you need a lawyer who can manage the evidence—and help you avoid creating more of it.

Call me at (407) 423-1117. Let’s protect your rights.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.