Most people are familiar with the law that phone conversations cannot be recorded unless both parties are aware of the recording. What many people do not know is there is an exception to this rule – it doesn’t apply to law enforcement.
When law enforcement is investigation a case, particularly sex crime allegations, they often will ask the complaining witness or some other witness to place a phone call to the suspect. Law enforcement secretly records the phone conversation. Law enforcement suggests questions and comments – questions intended to illicit responses from the suspect that can later be used against him or her in court. These phone calls are called pretext phone calls.
These phone calls are admissible in court. There is a legal presumption that someone accused of a crime who is innocent would automatically deny having committed the crime. If the suspect doesn’t deny the crime its characterized either as an admission, essentially admitting the person committed the crime or an adoptive admission, which can be simply failing to deny having committed the crime.
Criminal defense lawyers have complained for years that the legal presumption in this case fails to take into account that different people respond to accusations in different ways. Some people might deny having committed a crime, other people might sarcastically agree, yet other people might be uncomfortable and try to change the subject.
PreText phone calls can be defended against. The best defense depends on exactly what was and was not said on the pretext call.