If you are under investigation, the fact that you’ve hired an attorney cannot be used as evidence against you. It may raise the question in someone’s mind, “Why is this person hiring a lawyer if they didn’t do it,” but so what? You definitely have to have an attorney. There are a few tactics that law enforcement regularly use during an investigation, which unless you’ve consulted with an attorney, you are not going to know how to handle it, and those are the things that really get people in a lot of trouble. One of them is what’s called the Pretext Phone Call, where they have the alleged victim call the alleged perpetrator on the phone and get them into a conversation to the effect of, “I feel really terrible about what happened. I really want to talk to you about it. Can we get together or can you at least tell me why you did this to me? I feel so bad about it.”

The person on the other end of the line is freaking out and doesn’t know what to do, so he responds “I’m so sorry, I didn’t mean anything by it,” or, “I thought you weren’t going to tell anybody about this,” or, “I thought we’d forgotten about this.” The goal is to get that person to say something incriminating. This is all being recorded. That has gotten people prosecuted in a lot of situations where they might not otherwise have been. The truth is that many of the things that get charged in these types of cases are not something that are really subject to a lot of objective proof. They don’t necessarily involve forensic evidence, fiber, or DNA. They unfortunately do take place behind closed doors, so there are really only two people oftentimes that would ever be able to talk about what actually took place. So they use various techniques to bolster their case and one of them is the pretext phone call where they get the person to admit things over the phone.

The other one is they bring the suspect in to talk to them and they tell them, “We really don’t know whether this is true or not but we can give you a polygraph if you want. If you take the polygraph and it shows that you’re lying, then we’re going to know you did it and that’s not going to go so well for you. Whereas if you tell us now, I think we can make it go better for you,” or, “If you pass the polygraph, you get to walk out of here. But if you don’t pass it, then we are going to think you did this.” Well, that’s pretty scary, but the fact is that polygraphs are inadmissible in court. People don’t know that. They also don’t know that they have the right to say no to this, and even if they do say no to it, if this case ever ends up in court, it’s not like they are going to be able to walk in and say, “We offered him a polygraph and he refused, what does that tell you?” Because it wouldn’t necessarily have proven anything anyway, the courts have said, “You can’t even mention it.” People also don’t know that.

We had a pretty serious rape case about three years ago where law enforcement brought our guy in and gave him the polygraph story and also told him that, “If you just tell us now, we are not going to think you are a criminal, we are not going to think you are a bad guy.” He told them a story and they said okay. The question was, was this confession that he made worth anything when he was told that if he just agreed with them they wouldn’t consider him a criminal? Who wouldn’t do that, right? Truthfully, it would have been better if he hadn’t gone in there at all, and an attorney would have told them that if he had one during the investigation phase. I am confident that he did not do it – there was no forensic evidence, there was no fiber, no hair, no blood, no semen, no DNA, no nothing to match it up but we had a false confession to deal with. Notwithstanding, after being hired, we were able to bring this out at trial, and we won.

The trick law enforcement used was to threaten the polygraph and then say we won’t think you’re a criminal – in an effort to get cooperation. You would never know what to do about this technique if you don’t have a lawyer. People that are facing serious offenses, whether they did it or not, get scared – it’s normal. What tends to happen is they tend to do things that may make them look like they are guilty even if they aren’t. They can avoid these missteps by hiring a skilled and experienced criminal defense attorney like the ones at The Nieves Law Firm.