A member of the defense team is also present during the sisters' visits so that the defense can fulfill its obligation to develop evidence to use for mitigation against the death penalty.

The defense says the person who has been monitoring the visits is an FBI agent involved in the case, which it says is an abuse of the SAMs' purposes. The FBI's presence not only inhibits their attempt to get mitigation evidence from his sisters, but also threatens attorney work product and can potentially provide the Government with evidence (including observations of his demeanor) to use against Tsarnaev. (The Government has acknowledged Tsarnaev made an inculpatory statement during one of the sister's visits.)

For example, the defense says in its motion, the sisters' visits could provide them with evidence regarding Jahar's relationship with his family, the impact that his execution would have on family members, and information pertaining to family dysfunction, mental illness, and the impact of family chaos on the defendant as he grew up, all of which have been recognized in other cases as mitigating evidence.

The defense says the defense team alone should be allowed to monitor the visits, and it is improper for FBI case agents who are members of the prosecution team to be present.

The purported purpose of in-person visit monitoring under the SAMs is to prevent the passing of messages or incitement of violence. The monitoring is not properly imposed as a tool to invade attorney work product - the choice of topics and information concerning family history and dynamics that the defense team aims to elicit and observe- or to develop information about the defendant's demeanor for use by the government at trial.

Special Agent [Timothy]Brown has been present during all of the sisters' visits to date, has provided directions at the beginning of each visit, has admonished the sisters and Mr. Tsamaev to speak only in English, has listened to the content of the conversations as they occur, and has taken notes.

Short of vacating or modifying the SAMs, the defense has requested that a taint team be used to monitor visits, and/or that none of Agent Brown's observations, or notes, be provided to anyone on the prosecution team. The prosecution has refused this request.

The Defense also complains that BOP has been asking to look at the discovery cd's it brings to review with Jahar on a computer.

However, on January 24, 2014, BOP staff asked to review the content of a CD that defense counsel had brought in to review with their client. In the absence of a taint team, defense counsel declined to submit to the review and therefore were unable to review the material with the defendant. Since that time, staff have asked counsel if they are bringing in digital media to review with Mr. Tsamaev. Pending resolution of this issue, counsel have not sought to do so.

....government knowledge of materials that the defense has selected to review with the defendant would undermine the integrity of attorney work product. The defense has requested that the government employ a taint team for this purpose, but the prosecution has declined to do so.

The defense is asking that the SAM's be rescinded, or if not, at a minimum, that the Court allow Jahar to have unmonitored family visits under the supervision of a defense team member order the government to employ a "taint team" to protect attorney work product.

The attorney work product privilege applies to criminal as well as civil cases. The Supreme Court has said (from U.S. v. Nobles, 1975):

Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.

In its earlier motion, the defense said on this issue:

Of course, the defense recognizes that all detention facilities must screen materials entering the facility for contraband — hidden objects, metal clips inadvertently left attached to documents, and the like.It is the notion that such screening of legal materials also may include substantive review of content, and a determination by BOP officials and/or the prosecutors whether the content is, in their opinion, properly “related to preparation of the defense,” that is extraordinary and objectionable. At a minimum, if such review and discussion is to occur it should be done by a “taint team” prohibited from sharing information with prosecutors on the case.

... To the extent questions arise under the SAMs and/or materials shown to Mr. Tsarnaev are subject to content-based review, a “taint team” segregated from the prosecutors must be established to protect attorney work product.

"Taint teams" would be better than the current situation, but as many have noted (see here, they may not provide sufficient protection. Jahar has been in custody for ten months. Unless the Government can show he has done or said anything since his arrest to commit violence, incite violence, or engage in communications that pose a security threat, I think they should be lifted.