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But Officer, I Can Explain...

Posted By Berry Law Firm || 26-Feb-2015

You would be amazed at how many people are in jail or prison right now, because they tried explaining their way out of something with a police officer, or someone else accusing them of something nefarious. In cases with no physical evidence of a crime, it can be difficult to obtain a conviction simply based on the claims of the alleged victim. But when the suspect tries to explain their behavior, the suspect makes all sorts of admissions which may end up leading to a conviction.

Once the police lock onto you as a target/suspect, even an innocuous comment will be twisted into an incriminating statement by law enforcement, and quite possibly lead to your arrest. And make no mistake about it, it is not even law enforcement to whom you must make the statement in order to find yourself in cuffs.

Exmaples of Self-Incriminating Statements

One trick law enforcement often employs is the “controlled phone call”, also known as a "pretext call." This tactic is frequently used in the context of a sexual assault of a child, or a date rape, or a situation where two persons ended up drunk at a party, and one of them claims, “rape”. What happens in the controlled call, is the victim, or parent of the victim, will call the suspect to “discuss” what happened. In the case of the date rape, or the drunken party experience, the caller will ask the alleged perpetrator to fill the caller in on what happened, because bits and pieces of the night are missing due to all of the alcohol the caller consumed. The suspect, who in these situations usually has some knowledge of what the caller is talking about, frequently will explain to the caller that they were both drunk, one thing led to another, and they engaged in sex. Or alternatively, claim that they both fell asleep/passed out in the same bed, and the next thing he remembers is coming to while they were engaged in sex.

At this point, the suspect thinks that nothing unlawful happened, and is not worried about any police involvement. But what just happened, is that the caller was either calling from the police station with the police listening in on the call, or the caller was using police provided recording hardware to record the calls for law enforcement to listen to later. In this conversation, the suspect admitted being in the location where the alleged assault took place, at the time it took place, and admitted engaging in sexual activity with the alleged victim. Even if a situation where there were no other witnesses present in the room, or in the house, these statements are going to get the suspect arrested.

Now in that case, the comments the suspect makes clearly at least open the door for further investigation. But even innocuous statements can get a person arrested.

In one case, the suspect was accused of sexually assaulting his girlfriend’s young daughter. The basic allegation was that the suspect was lying in bed with the girlfriend and the daughter with the daughter in between the two of them, when the suspect assaulted the child under the covers, while whispering something in her ear. The girlfriend claimed to have seen the suspect whisper something to the child. During the controlled phone call which took place a couple of days later, the girlfriend repeatedly asked the suspect what he did under the covers, and what he whispered to the child. The suspect repeatedly denied doing anything whatsoever to the child. But he made the simple comment of not remembering what he had whispered in the child’s ear, and that it was probably something nice about the girlfriend.

That comment, while not an admission of any illegal activity, confirmed the girlfriend’s story that the suspect had leaned over, and whispered in the child’s ear. It was that comment that caused the prosecutor to decide to charge the suspect with felony sexual assault of a child. Fortunately for that fellow, he was acquitted at trial. While acquitted at trial, the experience cost him his job, which cost him is house, his financial security, and forever scarred him.

What to Do About Rape or Sexual Abuse Allegations

So what do you do when someone whom in your mind completely consented to a hook up a few nights earlier calls you to ask you what happened? Or what do you do when someone calls you and accuses you of assaulting their child?

Well, let’s back up a little bit here.

The best policy, of course, is not to do anything which could lead to such a call. This is not a blog on “how to get away with rape”. By not engaging in such activity, you not only reduce the chance that you will be convicted at trial, and reduce the chance that anyone will falsely accuse you of something scandalous, but perhaps most importantly, you do not actually do something scandalous which could forever scar the victim not to mention create an incredible lifetime burden on you.

But back to the question of what to do if you receive that phone call...you say nothing. When the parent of the child calls you (or text messages you), and asks you to explain your behavior with their child, you do not admit to anything. It would be a terrible idea to apologize for something (even if you didn’t do anything), and ask them not to call the police. Or if the alleged date rape victim calls, and asks you to fill her in on the previous night, you simply should not fulfil that request.

Should you telll the police your side of the story?

As for “But officer, I can explain”, it is possible that you could be questioned in connection with a sexual assault investigation even without the controlled call taking place. Law enforcement may want to meet with you, “just to get to the bottom” of things, or “just to close up the matter”. In such a case, you simply should refuse to answer any questions, and refuse to give any statements. You should not try to explain away even innocent behavior, such as rolling over in bed, while completely asleep, and your hand must have landed on the victim’s private area. Because when you do, you will be guilty in the mind of law enforcement, and they will determine that they have enough evidence to let the jury decide what happened. You will be arrested, and even if acquitted, your life will never be the same.

Categories: Criminal Defense