Sunday, February 15, 2009

Women's groups work with law enforement to 'trick' men accused of rape into confessing: A serious problem for men falsely accused

"Pretext calls" are a chilling device used in many police investigations of acquaintance rape. Their goal is to trap the accused -- without the benefit of either warning or legal counsel -- into an admission. Accusers work with police to ambush the accused in a phone call that is recorded where the accuser tries to get him to admit to raping her. Allowance of these recorded calls into evidence varies state to state. A young man who is unprepared to respond may hem and haw, or may not answer accurately or as carefully as he would if he knew his words might send him to prison to years. These pretext calls are a barbaric device, and men need to be very careful of them. Lest one have any doubt about the purpose of these calls read the following quote over and over: "A pretext call is a phone call, tape recorded by police, made by you to the perpetrator with the goal of tricking the perpetrator into talking about the crime." Women's Justice Center. (Isn't the use of the conclusory term "perpetrator" nice?) Anyway, with accusers and police working together to "trick" -- their word, not ours -- men accused of rape into an admission, what better justification for this Web site? And for an example of how a pretext call can be used against men accused of rape, see this case. In the interest of educating our readers about this frightening police tool, we furnish the following:

California Criminal Defense Blog had this to say:

This self-incriminatory tactic is often used by California police early on in rape cases, and you need to know how to protect yourself against the dreaded pretext call.

What is a pretext call? It may be from a friend, stranger, child, adult, or old acquaintance. Generally, the person will call and start asking questions about old accusations or events in an attempt to get you to say something self-incriminating. For example, the person might be an old girlfriend who brings up a situation that could be construed as date rape. If you apologize or acknowledge the incident on tape, even if it’s an incident you did not feel guilty of or involved in, the tape could be used as evidence at trial. Pretext calls are an extremely controversial police tactic, but uninformed people are often sitting ducks for this form of self-incrimination.

If you receive a suspicious phone call you believe may be a pretext call, be polite but firm. Refuse to answer questions or engage the caller in a conversation. Hang up as soon as possible and call your criminal defense attorney. The right criminal defense lawyer can help defend you against self-incriminatory statements recorded during pretext phone calls.

The National Center for Women and Policing published the following guideline for investigating acquaintance rape. It makes no pretense -- the goal is to get the suspect to make incriminating statements. The "victim" is prepped by police and helped during the call. The goal is to catch the suspect off-guard, without any preparation or warning, so that he blurts out an admission. This manual gives the victim and police extensive help to trap the accused into blurting out an admission. The excerpt is extensive:

SEX OFFENDERS: DYNAMICS AND INTERVIEW TECHNIQUES

Another useful piece of evidence can be the transcript from a "pretext phone call," also knows in some areas as a "confrontational call" or "monitored call." Although they are not legal in some states and strictly limited in others, investigators in those states where they are allowed should always consider using a pretext phone call in cases where the suspect and victim know each other. The recording obtained from a pretext phone call can be very helpful in determining facts and admissions of actions, and it can be useful in subsequent interviews with the suspect and for impeachment purposes. Techniques for conducting a successful pretext phone call are presented later in this module.

Using Pretext Phone Calls in Sexual Assault Investigation

. . . a 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 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.

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 call can be powerful evidence in court, and are sometimes key in linking the suspect to the crime. However, depending on the victim and the circumstances, a pretext call can amount to a second victimization, if the victim cannot handle the emotional consequences a pretext call can create.

Some states have laws that make it illegal to record phone calls. However, some of these states exempt law enforcement officers from these laws when the officer is acting within the scope of his or her official duties. Some states require that court authorization be obtained before recording a call. Investigators must be aware of the legal issues governing such calls in their state.

Depending on state laws and local policies, an investigator may want to consider having the victim sign a consent form prior to making the pretext call. This form can also include language to protect a law enforcement agency from potential liability in relation to any later claims by the victim, such as claims relating to emotional injury.
. . . .

Determine Whether the Pretext Phone Call is Appropriate

It is imperative that the investigator interview the victim in detail before making a pretext call. The information gained from the interview will help the investigator formulate questions for the victim to ask the suspect. The information will also help the investigator analyze the statements made by the suspect during the recorded call. The investigator should be familiar with all aspects of the case, including witness statements.

An effective pretext call can only be conducted if the victim is willing to cooperate. Keep in mind that it may be too traumatic or embarrassing for some victims to converse with the suspect effectively. And, as noted above, when deciding whether to make a pretext call, investigators must consider the emotional effect the pretext call might have on the victim. If the victim is willing to make a pretext call, it might be advisable to have a counselor or victim advocate available to help the victim immediately after the call.

Depending on the circumstances, the investigator might consider having 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 could undermine the effectiveness of the pretext call. However, the undercover agent (or friend of the victim) might be able to "explain this away." For example, the undercover officer (or friend of the victim) might “explain” that she has been upset, has been crying, and/or has not been sleeping well.

During the undercover pretext call, the suspect may request the victim’s phone number so that he can re-contact the victim. In planning the undercover pretext call, consideration must be given as to what phone number, if any, to give the suspect.

A note of caution: If someone poses as the victim for the purposes of the pretext call, the implications to the victim and the victim’s safety must be carefully considered, discussed with the victim, and addressed. For example, after the pretext call, the suspect may attempt to re-contact the actual victim; the victim must be prepared for this possibility.

When to Make the Pretext Call

The "best" time to make a pretext phone call will depend upon the circumstances of the case. A pretext call does not have to be initiated immediately; indeed, it can be initiated days, weeks, or even months after the incident. In some instances, a long delay may cause the suspect to think he "got away with it," and he might be more willing to talk about the incident. Depending on the circumstances, multiple pretext calls may be appropriate.

In lengthy investigations, investigators should consider initiating 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.

Preferably, a pretext call should be made before the suspect becomes aware of the investigation. However, even if the suspect knows of the investigation, a pretext call may be an appropriate tactic, especially in cases where the evidence is not yet strong enough to obtain a conviction.

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 should be undertaken by law enforcement -- or anyone working under the direction or control of law enforcement -- without the express authorization of a prosecutor.
If an investigator is concerned that the suspect would immediately think that a phone call from the victim must be some kind of trap, the call should be made on a weekend or late at night, when the suspect might be off guard and less suspicious.

If the resources are available, a surveillance team can be used to survey the suspect’s house and learn when he normally returns home from work. Then, on another day, the surveillance team can be in place when the victim is ready to place the call. When the surveillance team reports that the suspect has just returned home, the victim can then place the call. This procedure may minimize the stress and inconvenience of making a pretext call, only to learn that the suspect is not at home. Also, calling the suspect the moment he gets home from work might catch the suspect off guard. Finally, by using this procedure, the surveillance agents can testify 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.

Preparing for the Pretext Call

In sexual assault cases, the victim frequently knows the suspect and pretext calls can be effectively utilized. If the suspect is a complete stranger to the victim, however, a pretext call may not be possible -- the suspect may wonder how the victim got his phone number and become suspicious. However, if there is not yet enough evidence to obtain a conviction, 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.

Investigators should always prepare a list of questions and statements the victim can say to the suspect that will encourage the suspect to talk about the incident. This list should then be reviewed with the victim. The victim must always understand the purpose of the call, which is to obtain incriminating statements by the suspect. Questions and statements can then be developed in anticipation of what the suspect may say to the victim (e.g., admissions, denials, apologies, and evasiveness). These questions should be listed on paper so the victim can refer to them during the call; this is critical because many victims become nervous during the call and forget what to say. Victims should be reminded to let the suspect do most of the talking, and to avoid interrupting him.

To help prepare the victim for the possible responses by the suspect, investigators should practice or “role play” the questions with the victim. This will help the victim avoid sounding like she is reading from a script during the call. The practice sessions should be as close to the “real thing” as possible — even to the extent of having the victim call the “suspect” (the investigator) on a different line and the investigator responding in the different ways the suspect might respond. The more the victim practices under “battle conditions,” the better prepared she will be to effectively conduct the pretext call.

During the pretext call the victim should avoid harsh, accusatory questions like, "Why did you rape me!?" A suspect's usual answer to this type of question is, "I didn't rape you." A suspect may admit he took advantage of the unconscious victim, but he doesn't want to be associated with the likes of a "rapist" or a "criminal." Instead, the victim might ask the suspect something like:

"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?"

In some jurisdictions, the laws of evidence have a specific term to describe evidence which establishes that someone failed to deny an accusation under circumstances which called for a denial had the person been innocent. The term for that evidence is an “admission by silence.” See, for example, United States v. Aponte, 31 F.3d 86, 87 (2d Cir. 1994).

This type of question is more likely to elicit an incriminating statement. Victims should be advised to avoid nebulous questions like, "Why did you do it?" Rather, they should be more specific. A lack of denial by the suspect may be as incriminating as an admission.

Under the circumstances, it may be in the public interest for the victim to make misrepresentations to the suspect. For example, if the suspect asks the victim if she told the police what happened, she can tell him, "No." However, the victim should not make threatening statements like, "If you don't admit you raped me, I'm going to call the police and have you arrested."

When planning a pretext call, investigators should arrange to place the call from a location that is well suited for that purpose. For example, some law enforcement agencies have automatic answering devices on their non-undercover phone lines -- devices that, among other things, inform the caller that he has reached the law enforcement agency. Because some suspects use “Caller ID” and automatic return calling, such non-undercover phone lines should not be used. In most cases, the call can be made from the victim's residence.

Finally, the victim should not be under the influence of alcohol or drugs that could affect her judgment, thought processes, or emotional stability during the pretext call.

Making the Pretext Call

The following is a short checklist to consider when making the pretext call.

. . . .
When the victim contacts the suspect, the investigator should listen carefully to both sides of the conversation and assist the victim by pointing to questions on the list that the victim should ask the suspect. It is helpful for investigators to have a note pad handy to jot down additional questions that come to mind as the conversation develops — questions that the victim can pose to the suspect during the conversation.

Usually a pretext call will not last longer than thirty minutes. During this time, the victim should remain focused on talking about the incident. If the conversation drifts too much into other areas, the result may be a tape with little evidentiary value. Once the call is completed, the tape becomes evidence and should therefore be handled with the same care as any other piece of physical evidence.