In the legal world, the term “pretext” refers to the fabricated reasons, or lies, used to hide the real motivations behind the commencement of a legal action. An example of pretext used unlawfully is a police officer conducting an illegal search and seizure of a person’s vehicle. He may say he pulled the individual over because the latter had a taillight out, but the officer’s true motivation was to look for drugs in the person’s car. To explore this concept, consider the following pretext definition.

Definition of Pretext


  1. The lies or falsities a person uses to hide his true motivation for bringing a legal action against another party.


1505-1515       Latin    (praetextum)

Pretext in Warfare

Pretext in warfare has existed for centuries. For instance, in February of 1898, during the Spanish-American War, the U.S.S. Maine sank in a huge explosion that killed nearly 270 members of its crew. The Maine’s commander warned people not to believe that the explosion was the result of enemy fire.

However, the people would not be swayed. They were out for blood. The press ran vicious, untrue headlines like “Spanish cannibalism” and “Inhuman Torture,” and said the commander refused to “see the obvious.” The Atlantic Monthly went a step further by saying that anyone who did not believe this to be a premeditated act of war by the Spanish was in complete defiance “of the laws of probability.” In April of 1898, Congress declared war on Spain.

However, in 1975, U.S. Admiral Hyman Rickover investigated the explosion, and announced that something internal caused the blaze, and that it was not the result of an enemy attack. Admiral Rickover said a coal dust explosion was probably to blame.

The real motivation for concocting such falsities was what the U.S. stood to gain. And gain it did as a result of pretext in warfare. The U.S. ultimately replaced Spain as the colonial power in Guam, the Philippines, and Puerto Rico within a period of only four months. This was the largest achievement the U.S. had ever seen before the war, and it remains the country’s largest achievement to this day.

Pretext in U.S. History

There have been several examples of pretext in U.S. history. For instance, some people believe that President Franklin D. Roosevelt used the attack on Pearl Harbor as a pretext to become involved in World War II. By this point, the U.S. had been assisting the British and the Soviets for about a year, and the U.S. had already “picked a side.”

However, Roosevelt had promised while campaigning that he would not send American soldiers to fight overseas. He could therefore not declare war because of the backlash he would be subjecting himself to. The attack on Pearl Harbor on December 7, 1941, some people believe, gave him the pretext he needed to be able to declare war.

For a more recent example of pretext in U.S. history, some have accused President George W. Bush of using the September 11, 2001 attacks as a pretext for declaring war on Iraq.

Demonstrating Pretext

The act of demonstrating pretext, or proving it, can be a difficult one. However, it is also critical when trying to win a lawsuit. While there may not be one tried and true way to prove pretext, there are four common methods that lawyers often rely upon in cases involving workplace discrimination.

False Reasons

In the simplest terms, if an employee can show that the stated reason his employer used to fire him was a lie, then he may be able to demonstrate pretext. For instance, if an employer fires an employee for “performance issues,” yet the employee has proof that all his performance reviews were glowing, this is a potentially false reason for his termination.

Changing Reasons

When an employer begins changing reasons for firing someone, this is practically iron-clad proof of pretext. For instance, the employer may say he fired an employee because the employee was late all the time. Yet, during litigation, the employer may say that he actually fired the employee because he caught him stealing petty cash. Well, which is it? A reliable method for demonstrating pretext is to compare what the witness said or wrote during the discovery process with what he says at trial.

Comparative Evidence

Comparative evidence is difficult to get, but it can make or break a case. A classic example of comparative evidence is if an employee can prove that his employer fired him for something that his co-workers get away with all the time. This may be strong evidence for demonstrating pretext in that it may not be company policy after all that led to the employee’s termination.


Timing is important when demonstrating pretext because it can show that an employer had a vendetta against the employee, and fired him as an act of retaliation. The shorter the window, the more likely pretext is involved. For instance, if a female employee tells her employer she is pregnant, and she is fired the following week because of “budget cuts,” the timing says there is a strong likelihood of pretext. However, in some cases, Courts have still found pretext even after several weeks had passed.

Pretext Example Involving a Possible Traffic Violation

An example of pretext coming before the U.S. Supreme Court occurred in the case of Whren v. United States. Here, Michael Whren and James Brown were driving in an SUV in June of 1993 in what the police considered a “high drug area” in Washington, D.C. At the same time, two plainclothes police officers were patrolling the area in an unmarked car.

The officers noticed Whren and Brown pulled over at a stop sign for about 20 seconds and thought the car looked suspicious. They also noticed that the passenger, Whren, was distracting Brown. As the officers approached the car, the men turned at what the policemen called an “unreasonable” speed without using their turn signal. The officers pulled Whren and Brown over on the pretext of a traffic violation.

Upon approaching the car, the officers noticed that Whren was holding two bags of crack cocaine. They also saw additional drugs out in plain sight. They arrested Whren and Brown and charged them with drug possession with the intent to distribute. To add insult to injury, the Whren and Brown traffic stop occurred in a school zone, which upped the potential penalties.

Trial and Appeal

Whren’s and Brown’s attorneys tried to suppress the drug evidence by arguing that the traffic stop was only a pretext the officers used to sniff out a possible drug crime. Further, the attorneys argued that the officers did not have probable cause to arrest the men and that, by arresting them, they violated the men’s Fourth Amendment rights against unreasonable searches and seizures.

The U.S. District Court for the District of Columbia denied the defendants’ motion to suppress, and gave both men sentences consisting of 14 years in prison. The men appealed, but the U.S. Court of Appeals for the same district affirmed the ruling of the lower court.

U.S. Supreme Court Decision

The U.S. Supreme Court then agreed to hear the case. The question the Court had to decide was whether the officers conducted an unlawful search and seizure that violated the defendants’ Fourth Amendment rights. Ultimately, the Court ruled that the officers were within their right to stop any vehicle if they believed a traffic violation had occurred. Because the men sped away from the stop sign and did not use a turn signal, the Court defended the officers’ decision to pull them over.

Therefore, because the stop was lawful, so too was the search and seizure. The Court said that, regardless of the reasons the officers had to pull the men over, the officers were reasonable in their behavior. Said the Court, in its own words:

“Although framed as an empirical question – whether the officer’s conduct deviated materially from standard police practices – petitioners’ proposed test is plainly designed to combat the perceived danger of pretextual stops. It is thus inconsistent with this Court’s cases, which make clear that the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent. (Citation omitted.) Nor can the Fourth Amendment’s protections be thought to vary from place to place and from time to time, which would be the consequence of assessing the reasonableness of police conduct in light of local law enforcement practices.”

Related Legal Terms and Issues

  • Colonial Power – The power held by an entity over a weaker area or population.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Discovery – The pre-trial efforts of each party to obtain information and evidence.
  • Litigation – The process of taking legal action; the process of suing someone, or trying them for a criminal act.
  • Probable Cause – The amount and quality of evidence and information required to search or arrest someone, or to charge them with a crime.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to issue a decision in a civil matter.