Suppose you are the subject of a sexual crime investigation in California. In that case, you need to be aware of the possibility of a "pretext call," in which law enforcement records you in a phone conversation without your knowledge in an attempt to gain evidence against you.
At the early stages of a police investigation of an alleged sex crime, police often receive a report of a sexual assault from the victim. Suppose the victim might have recently experienced the assault. In that case, they may have bruises or other evidence that can be considered and DNA evidence may be available of the suspect.
A pretext call is a trap phone call from the alleged victim to the suspect, usually in a sex case, where the police record the call and "coach" the victim into trying to get the suspect to confess or apologize for certain conduct.
The police typically orchestrate the call and the suspect is unaware that the police are listening to the conversation.
Other times, a victim reports something that took place weeks, months, or even more than a year ago. In such cases, there usually is no evidence of this except the victim's claim, known as the "he said she said" situation.
Police might believe the victim, but as part of their due diligence in investigating the claim, they must get corroboration from the suspect before recommending prosecution. This means they need to gather additional evidence or statements that support the victim's claim.
Thus, a pretext call is one way to accomplish this. The cooperative victim or a witness will make a telephone call to the suspect, with the police recording the call and sitting next to the caller.
California Penal Code 633 PC makes recording such a call legal, although recording a phone call without the consent of both parties is generally illegal.
The legal implications of a pretext call can be profound if law enforcement hears incriminating information, but you are not without legal rights in such instances. Here's what you need to know about pretext calls, their purpose, and how they might factor into your legal case.
What is a Pretext Call?
A "pretext call" is a tactic used by law enforcement to investigate crimes like sexual offenses. It's a staged phone call between a suspect and an alleged victim, supervised by law enforcement.
The alleged victim, guided by law enforcement, initiates the call, usually under the pretext of seeking an explanation, apology, or clarification about certain events. The conversation is recorded without the suspect's knowledge and may be used as evidence in a criminal case.
The goal of a pretext call is to obtain incriminating statements from the suspect. Law enforcement aims to create a setting where the suspect feels comfortable or compelled to admit to certain facts.
For instance, the alleged victim might express distress to prompt the suspect to admit their actions or intent. Since the suspect doesn't know the call is recorded, they may speak freely without choosing their words carefully. Investigators use these statements to build a case or support other evidence.
Are Pretext Calls Legal in California?
California is a two-party consent state for recording phone calls, meaning that under normal circumstances, it's illegal to record a call unless everyone on the call agrees to it.
However, as noted, under California Penal Code 633 PC, law enforcement can record conversations without consent if it's part of a criminal investigation. In sexual crime cases, this allows an alleged victim working with law enforcement to record a suspect without their consent, and the recording may be used as evidence in court.
It's important to note that this exception applies only when law enforcement is involved in directing or supervising the recording. If a civilian records a conversation without law enforcement's explicit involvement, it could be deemed illegal and inadmissible in court.
Penal Code 633 PC says, "(a) Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any peace officer of the Office of Internal Affairs of the Department of Corrections and Rehabilitation, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of their authority, from overhearing or recording any communication that they could lawfully overhear or record prior to January 1, 1968."
What are Potential Misuses of Pretext Calls?
While pretext calls can help uncover the truth in a sexual crime investigation, they are not without controversy. There is significant potential for these calls to be misused or misconstrued, especially when the context of a conversation is overlooked or manipulated.
This can often lead to false accusations or tainted evidence, which a skilled criminal defense attorney must then challenge in court.
When false accusations or tainted evidence arise from pretext calls, a criminal lawyer is your best defense. They can challenge these in court, providing you with the reassurance and support you need during this challenging time. Some possible misuses of pretext phone calls include:
- False Accusations. One way pretext calls can be misused stems from false accusations. A person falsely claiming to be a victim of a sexual crime could use a pretext call to manufacture evidence against a suspect. In such cases, the suspect's statements might be taken out of context and used unfairly to support the accusation.
- Statements Taken Out of Context. Another concern is the potential for a suspect's statements during a pretext call to be misinterpreted. The stresses and manipulations of the conversation, combined with its emotionally charged nature, can lead to ambiguous or misleading responses. It's important to be cautious and mindful of your words during a pretext call to avoid any misinterpretation.
- Entrapment. Although rare, there is also the risk of entrapment. This occurs when law enforcement agents, or those working under their direction, induce a suspect to commit a crime they would not have otherwise committed. While courts closely scrutinize entrapment claims, the blurred lines in pretext calls can make this concern relevant in some cases.
How Can a Criminal Defense Attorney Help?
If you have been subjected to a pretext call in a sex crime investigation, the stakes against you may be highly elevated, increasing the risk of conviction.
Your best hope of overcoming these challenges is with the help of a skilled California criminal defense attorney. We can help you understand your rights, challenge the validity of the call, and ensure that any evidence obtained through the call is used fairly in court. We can help you in the following ways:
- Analyze the Call: A defense attorney will scrutinize the pretext call for signs of coercion, misrepresentation, or improper conduct by law enforcement. We can argue that the call was unfairly manipulated or that statements were taken out of context.
- Challenge the Evidence: If the pretext call was conducted in violation of California law or law enforcement's procedures, we can move to suppress the evidence, preventing it from being used against you in court.
- Dispute the Allegations: Our skilled attorneys will investigate the credibility of the alleged victim, seeking evidence of bias, ulterior motives, or false claims. We will build a defense strategy that counters the accusations.
- Protect Your Rights: If law enforcement has overstepped its bounds, such as by pressuring the alleged victim or engaging in deceptive practices, our attorneys will ensure that your constitutional rights are upheld.
For more information, contact our California criminal defense law firm, Eisner Gorin LLP, based in Los Angeles.
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