What’s a Controlled Call?
A “controlled call” is an investigative technique used by police.
In a controlled call, the accuser phones the accused. Police are present with the accuser, recording the call.
Police use controlled calls when the accused and the accuser know each other: for example, when investigating sex crimes or domestic violence.
During the controlled call, your accuser will confront you with accusations:
Private Controlled Call
A controlled call doesn’t have to involve police.
On his or her own initiative, your accuser may record record a conversation with you, over the phone or in person.
Your accuser might later give the recorded conversation to police.
Catching You Off Guard
To keep you off guard, your accuser might communicate lack of consent as incidental to the accuser’s primary concern.
For example, your accuser’s primary interest might be framed as:
- Wanting an apology.
- Concern about pregnancy and/or STD’s.
For example, your accuser might say: “I was blacked out when you had sex with me. I don’t know if you were wearing a condom. I’m really worried you gave me an STD.”
Your apology could be interpreted as proof of non-consensual sex: why would a person apologize for consensual sex?
Your description of condom use is proof of sexual intercourse, which is an element of rape.
End the Conversation – Immediately
If someone confronts you with allegations of rape, sexual abuse, or any other crime, immediately end the conversation.
Assume your accuser is recording the conversation, to be used as evidence against you in court.
Don’t speak with your accuser.
It doesn’t matter if your accuser is someone you know, or a stranger; if you’re innocent or guilty; if you’re aware that police are investigating you. Never speak with your accuser.
Be on high alert if anyone tries to discuss criminal behavior with you.
You already know that you should never speak with police.
Similarly, if someone you’ve had sex with accuses you of a sex crime, immediately end the conversation. “Immediately end the conversation” means “say absolutely nothing”.
If the conversation is in person, immediately walk away.
If the conversation is by phone, immediately hang up. Don’t answer the phone if the person calls back.
Anything You Say Is Evidence
Anything you say to anyone can be used as evidence against you in a criminal case.
There are very limited exceptions to that rule. Here are two:
- Statements you make to your lawyer can’t be used as evidence against you (unless you tell your lawyer that you intend to commit a crime in the future).
- Statements you make to your spouse can’t be used as evidence against you (except for statements made during the commission of a crime against your spouse).
When you’re charged with a crime, the last thing you need is your own words used as evidence against you.
So, never speak with your accuser.
Spoken Words Are Evidence
Maybe you believe that spoken words can’t be used as evidence. This belief is false.
An oral statement made during casual conversation might be less reliable than a written statement, or a digitally recorded statement. This is because the person who testifies about your oral statement:
- Will rely on imperfect memory of what you said, rather than fixed words written on paper or recorded in a digital file.
- Might be biased against you.
- Might be motivated to testify falsely about what you said.
However, despite its shortcomings, an oral statement may be used as evidence against you in court. So, making an oral statement, while refusing to provide a written one, doesn’t protect you in any way.
In some ways an oral statement is more dangerous than a written or recorded statement: an oral statement isn’t limited by what’s written on a piece of paper or what’s recorded in a video.
Anyone who hears you speak can claim you said anything.
Assume You’re Being Recorded
Assume anyone who accuses you is recording the conversation.
This assumption should motivate you not to speak.
If you’re innocent, don’t try to set the record straight by giving an accurate description about what happened. You’ll unintentionally say something that incriminates you.
If you’re guilty, don’t create a lie to cover up your guilt. You’ll say something that’s contradicted by other evidence; something inconsistent with something else you said in the past; or something inconsistent with something else you will say, or would like to say, in the future.
It’s Not Illegal to Record You
In New York, anyone can “wear a wire” and record their conversation with you.
It’s not illegal. It doesn’t require a warrant.
New York is a “one-party consent state”. If one party to a conversation (your accuser, for example) consents to the conversation being recorded, the conversation may be legally recorded.
You’re not entitled to notice that a participant in your conversation is recording it.
Police Rarely Must Give Miranda Warnings
Police don’t have to read “Miranda warnings” to you when you’re not in custody.
Miranda warnings sound like this:
- You have the right to remain silent and refuse to answer questions.
- Anything you say can be used against you as evidence in court.
- You have the right to consult a lawyer before speaking with police, and to have a lawyer present with you during questioning.
- If you can’t afford a lawyer, one will be provided for you without cost.
- If you don’t have a lawyer available, you have the right to remain silent until you have the opportunity to consult with one.
- Now that I’ve advised you of your rights, are you willing to answer questions?
Some people mistakenly believe that police must always read Miranda warnings before asking questions. They believe that they may safely speak to police in the absence of Miranda warnings, because un-Mirandized statements can’t be used against them in court. This false belief can lead to disastrous consequences.
Police are only required to read Miranda warnings when the person being questioned is “in custody”.
Always assume you’re not in custody.
- If police tell you you’re not free to leave the police station, assume you’re not in custody.
- If you’re in an interrogation room at a police station and police tell say you can’t leave, assume you’re not in custody.
- Even if you’re handcuffed to a wall in an interrogation room at a police station and police say you can’t leave, assume you’re not in custody.
If there is no doubt that you are in custody, assume police will lie under oath about the circumstances under which you spoke with them.
Innocent People Incriminate Themselves
Even if your accuser’s claims are false, you might apologize, or seemingly agree with some of the accuser’s allegations.
For many people, this is a natural response – an attempt to calm a tense situation.
A prosecutor will use your apologies and admissions as evidence against you. You will be put in the difficult position of trying to explain at trial why you apologized.
If anyone – civilian or police – accuses you of a crime, end the conversation immediately.
Then immediately contact a criminal defense lawyer to advise you about how to defend yourself against the accusation.
Bruce Yerman is a criminal defense lawyer in New York City. His office is located on the fourth floor of 160 Broadway in Manhattan.
If you’d like a free consultation to discuss controlled calls or anything else related to criminal defense or family law, call Bruce at:
Or email Bruce a brief description of your situation:
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