Pretrial detention imposes several unreasonable burdens on a defendant's ability to prepare for trial. One such burden is that the prosecution often gains access—without a warrant—to the defendant's telephone calls because the pretrial detention facility often records and shares the calls with the prosecution. This practice may inhibit the defendant’s willingness and ability to speak freely to witnesses to prepare her defense. The unwitting defendant and her witnesses, meanwhile, may share critical trial strategies or disclose important information, which offers the prosecution a direct view into the defendant's strategy and evidence.

Originally published in the University of Southern California Review of Law & Social Justice (Volume 33, Issue 1) - Winter 2024