Attacking The Investigation of  Date – Acquaintance Sexual Assault – The Pretext Phone Call Part II of II

De-constructing Law Enforcement Investigative Techniques By Colorado Sex Crimes Defense Lawyer – H. Michael Steinberg

What follows is an analysis of the law enforcement technique known as a “pretext phone” call taken from a manual used by the police to investigate these cases.

How Police Use Pretext Phone Calls in Sexual Assault Investigations

The “pretext phone call” is an investigative tool that is utilized in a wide variety of criminal investigations. It is used in many – if not most often in sexual assault investigations, including drug-facilitated sexual assault.

The pretext phone call is simply a tape-recorded telephone call between the victim and the suspect. The call is usually initiated by the victim, under the supervision of a law enforcement officer — preferably the lead investigator or case agent.

The suspect is not advised and is unaware that the call is being recorded. This technique may be referred to by different terms, including “confrontational calls,” “pretense calls,” “taping,” “consensual taping,” “monitored calls,” etc.

Purpose Of The Pretext Phone Call

The purpose of a pretext phone call is to elicit incriminating statements from the suspect. A suspect will frequently talk to the sexual assault victim about the incident if he believes the victim is alone and no one else is listening. The tape recording resulting from an effective pretext call gives the investigator leverage during the subsequent interview of the suspect because the investigator can confront the suspect with the statements the suspect made during the pretext phone call — statements which were recorded on tape.

Evidence and statements obtained as the result of a pretext can be and is powerful evidence in court, and is sometimes key in linking the suspect to the crime.

How The Police Determine Whether the Pretext Phone Call is Useful

The investigator will interview the victim in detail before making a pretext call. The information gained from the interview helps the investigator in formulating questions for the victim to ask the suspect. The information is then used by the investigator to analyze the statements made by the suspect during the recorded call.

A pretext call can only be conducted if the victim is willing to cooperate.

The investigator might have an undercover police officer (or a friend of the victim) pose as the victim for purposes of the pretext call. Obviously, if the suspect knows the victim well, the suspect may detect a difference in the voice – and this undermines the pretext call.

When Is The Pretext Call Usually Made?

The time when the pretext phone call is made depends upon the circumstances of the case. A pretext call may not be initiated immediately; indeed, it can be initiated days, weeks, or even months after the incident. In some instances, a long delay is preferred by law enforcement because it may make the suspect to think that nothing will happen thus making him more willing to talk about the incident. Depending on the circumstances, sometimes the police attempt multiple pretext calls.

Sometimes after lengthy investigations, investigators make the pretext call on a date that coincides with the “anniversary” date of the crime or on some other date on which the suspect might be thinking about the victim. For example, if the suspect knows the victim well, the victim might call the suspect on the victim’s birthday.

In ALL cases the police attempt to make the pretext call before the suspect becomes aware of the investigation. But sometimes even if the suspect knows of the investigation, they may STILL attempt a pretext as a tactic, especially in cases where the evidence is not yet strong enough to obtain a conviction.

If You Are Represented By A Lawyer During The Investigation

When an attorney represents a suspect, the legal principles applicable to contacts with represented persons must be followed. Under such circumstances, no direct or indirect contact with the suspect can be undertaken by law enforcement — or anyone working under the direction or control of law enforcement — without the express authorization of the defense lawyer.

Your Guard Is Lowered

Sometimes the investigator is concerned that the suspect would immediately think that a phone call from the victim must be some kind of trap, .. The police will then make the call on a weekend or late at night, when the suspect might be off guard and less suspicious.

The Use of Surveillance

Law enforcement may also use surveillance to survey the suspect’s house and learn when he normally returns home from work. Then, on another day, the surveillance team is placed at the time the alleged victim is ready to place the call. When the surveillance team reports that the suspect has just returned home, the call is placed. Calling the suspect the moment he gets home from work is intended to catch the suspect off guard. By using this procedure, the surveillance agents can testify at trial that the suspect was home at the time of the call – and, thereby, provide additional evidence that it is the suspect’s voice on the tape.

How Does Law Enforcement Prepare for the Pretext Call

In sexual assault cases, the alleged victim frequently knows the suspect and pretext calls are then more likely. If the suspect is a complete stranger to the victim, a pretext call makes little or no sense because the suspect may wonder how his accuser got his phone number.

Nothing To Lose

However, if there is not yet enough evidence to obtain a conviction, police investigators might decide that there is nothing to lose by trying. With creativity, moreover, many potential problems can be eliminated. For example, a victim that is unknown to the suspect may tell him that he is actually known to a “friend of a friend,” who gave her his number.

The List Of Questions

Investigators always prepare a list of questions and statements the alleged victim can say to the suspect that encourage the suspect to talk about the incident. This list typically is reviewed with the victim. The purpose of the call is to obtain incriminating statements by the suspect. Therefore questions and statements are developed in anticipation of what the suspect may say to the victim (e.g., admissions, denials, apologies, and evasiveness).

These questions are typically listed on paper and are referred to by the alleged victim during the call; this occurs of nervousness during the call. The intent here is to let the suspect do most of the talking, and to avoid interrupting him.

Careful Questions

During the pretext call the alleged victim will avoid harsh, accusatory questions like, “Why did you rape me!” Because the answer is, “I didn’t rape you.” The questions are carefully phrased:

“Why did you have sex with me after I pushed you away and told you to stop”,

or

“You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why”

This type of question is more likely to elicit an incriminating statement. The alleged victims are  advised to avoid nebulous questions like, “Why did you do it”

A lack of denial by the suspect is argued at trial to be as incriminating as an admission.

Intentional Lies

If the suspect asks the alleged victim if she told the police what happened, she lies and tells him  “No.” and threatening statements like, “If you don’t admit you raped me, I’m going to call the police and have you arrested” are avoided

Making the Pretext Call

Usually a pretext call will not last longer than thirty minutes. During this time, the alleged victim is trained to remain focused on talking about the incident. If the conversation drifts too much into other areas, the result is not useable in court.  Once the call is completed, the tape becomes evidence and is therefore handled like any other piece of physical evidence.

Why YOU Should Never Call The Alleged Victim

Suspects have been known to initiate contacts with their victims. Investigators will sometimes attach a recorder to the victim’s phone as soon as possible to record the suspect’s calls. Even if a man has been arrested for the alleged rape, a recorder may still be attached to the victim’s phone just in case the suspect — or his friends – try to call her.

The Danger of Pretext Phone Calls In Colorado Date Rape Acquaintance Rape Investigations

Pretext calls have helped in a number of investigations that ultimately resulted in convictions. Some of these cases would not have been prosecuted were it not for the statements the suspect made to the victim during the pretext call. Pretext phone calls therefore represent an important “tool: for sexual assault investigators.  They are growing in favor and are being used mmore and more often in sex assault investigations.

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H. Michael Steinberg has been a Colorado criminal law specialist attorney for 29 years. For the First 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior  prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases. In addition to handling tens of thousands of cases in the trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations.  Please call him at your convenience at 720-220-2277