Having practiced criminal defense now for twenty-five years and done many sex crime cases, I see more and more law enforcement trying to use these pretext phone calls to get evidence against those people they believe are involved in committing sex crimes.
First, you need the definition of what a pretext phone call is, and that's either the police calling somebody whom they believe committed a crime or, more likely, the alleged victim calling somebody who has supposedly committed a sex crime against them.
The police will tape-record the conversation and ask specific questions, attempting to elicit incriminating statements from the person.
Usually, I see these pretext phone calls where the alleged victim goes in, talks to the police, and tells them that a particular individual committed a sex crime against them.
The police then say, ' Okay, what we want you to do is call that person. ' We're going to listen and tape recording, and we have a list of questions that we want you to ask that person. Do we have a list of statements you could make to that person?
We're going to record it, and we're going to try to get them to say something where they admit that they committed the sex crime, and then we can use that as evidence against them. So, that's what the pretext phone call is.
For example, the types of questions or statements the police will ask the alleged victim to make are: You did X, Y, and Z to me. I want to know why you did that. What were you thinking?
Other times, I see them say, ' Hey, I feel like you did something wrong to me last night. ' What happened? Did we have sex? Then again, they're tape recording, trying to get the information. They're challenging the person they think is the suspect or the target with whatever they believe is wrong, and then they're trying to get them to admit it.
A lot of times, people respond, "Well, I don't know what you're talking about," and then they'll get precise: "You grabbed me by the back of my head; you through me down," or whatever the case may be, and they're trying to get the person to acknowledge.
Often, what I see in these pretext phone calls is the person apologizing — I'm so sorry that I did that. Can you forgive me? This is then used to say, Why would somebody apologize if they didn't do anything wrong?
Don't Make Any Admissions in a Pretext Call
The best answer in these situations is, I don't know what you're talking about. I'm not sure why you would say that. I didn't do anything wrong last night, and then, obviously, you explain what happened.
It's lawful, whatever it was, and now the police are going to look at the alleged victim and say, What happened here? That person's not admitting that they did anything wrong.
So, this is what a pretext phone call is, and then you have to get into the issue of what you're going to do about the pretext phone call. What ends up happening is if they file a criminal case against you, then your defense lawyer — I would see the pretext phone call — it's usually tape-recorded, or it's mentioned in the police report, and now we have to go over the pre-text phone call, and we have to dissect and breakdown why you said what you said — whether we can still defend the case with that pretext phone call in there.
The next thing you start to ask yourself is the value of that pretext phone call, and it can be precious. I've had them be valuable for the defense if the person denies everything.
If the person is given our theory of the case back to the alleged victim, they would now play the pretextual phone call in the preliminary hearing at the trial and say, "Why were you saying this?"
Why were you saying that, alleged victim? Why didn't you confront them with this? They committed a sex-related offense against you. Sometimes, the defense can use the pretext phone call to their advantage, presenting their theory of the case, impeaching, and discrediting the alleged victim's credibility.
Developing a Defense Strategy Against a Sex Crime Case
At other times, the defendant says disturbing things that incriminate them, and we have to sit there and do damage control, figuring out why they said what they said and why they answered the question in that manner.
Sometimes, there's a good explanation for it. Other times, there isn't, and then we have a problem, and sometimes it operates as a confession. That's essentially the purpose of a pretext phone call.
It's to try to get you to confess in some way or say something inconsistent with your defense, so that when you try to defend yourself, you testify, or the alleged victim testifies to the prosecution and case; why would the guy say this if he was innocent?
They can even confront the perpetrator with that and say, Wait a minute, you admitted. Why would you apologize if you didn't do anything wrong? If you didn't do anything wrong, you'd say, What are you talking about?
Why wouldn't you challenge the statement that the alleged victim made to you versus apologizing, acknowledging it, or remaining quiet? Nobody innocent would do that.
Why Are Police Allowed to Make Pretext Stops?
That's really how they're using these pretext phone calls in Los Angeles against you. Another question many people have is whether law enforcement is permitted to conduct a pretext phone call.
The answer is yes. You wouldn't think so because Penal Code 632 PC—Eavesdropping—states that you're not allowed to tape-record someone unless they give permission or there is no reasonable expectation of privacy.
- But law enforcement has an exception. They're allowed to tape-record someone when pursuing an investigation and gathering information to determine if a crime has been committed.
So, law enforcement can do it. Whether somebody could do it on their own and then try to use it against you and go to law enforcement with you is a different scenario, and they may be able to be blocked as a violation of Penal Code Section 632.
However, if law enforcement is involved, they've decided to tape-record; they believe it is an effective investigative tool. Law enforcement is probably going to be able to do it, and you won't be able to stop them, and you will be in a position where if you do admit to something or if you do acknowledge something, you're going to have to deal with that in the criminal case.
Los Angeles Sex Crime Lawyer
So, if you've got a sex-related offense and there's a pretext phone call involved, pick up the phone. Give me a call. We'll discuss it, and, of course, I'm warning people who call me before filing to be aware of the potential for a pretext phone call. Contact the Los Angeles sex crime attorneys at the Hedding Law Firm for help.
Someone's going to call you — the alleged victim. They're going to challenge you. They're going to ask you questions, and the police will be recording you, so you have to look out for that type of strategy employed by law enforcement.
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