Cherry picking by prosecutors can be fatal if the trial judge excludes the rest of what the defendant told police

Cherry picking is common for prosecutors while direct examining police, to use in putting the criminal defendants’ statements to law enforcement officers (LEO) in the light most unfavorable to the defendant. As a Fairfax criminal lawyer, I recognize how maddening it can be for prosecutors — who are obligated to serve justice and not merely to seek convictions — to then turn around and object to the rest of the defendant’s statements to the police coming into evidence during the defense attorney’s cross examination of the same police officer. Whether out of ill will, ill intent or otherwise, prosecutors in my presence have pulled what I consider to be such shenanigans as running at length with a judge’s offer for the prosecutor to speak first before giving me an opportunity to explain my objection (I remain poised to remind the judge that it’s my objection and that I want full time to argue my objection), cutting off a defense witness’s answer by asking the next cross exam question (in which case I am ready to object that the prosecutor interrupted the full relevant answer from being delivered), and mining for possible and actual irritation in the trial judge to any relevant law that supports relief for the defendant. Whether it is shenanigans or not for a prosecutor to object to the rest of a defendant’s statement to come into evidence, we at least have the Virginia Court of Appeals giving us chapter and verse about a criminal defendant’s wide latitude to achieve such completeness.

Before we go further, Virginia criminal defendants need to know that police control your words

With or without prosecutorial cherry picking, Virginia criminal defendants need to know that police control your words. For starters, being human, police can mis-hear, mis-remember, and mis-state what you say. At worst, police can twist around your words. Are you going to take that bait, or are you going to assert your Constitutional Fifth and Sixth Amendment rights to remain silent with police. Even if you think or know your conversation with police is being recocrded, that does not guarantee against malfunctioning recordation and part of the conversation getting missed or muffled. Beyond that, police control when your conversation begins and ends, and what questions they will ask. A police officer is not automatically nor necessarily going to let you correct a mis-statement you made, nor to explain your actions nor motives beyond what the LEO’s questions elicit.

Beethoven’s Fifth, Hamlet and the Mona Lisa are unified wholes, and not pieces scrapped together. Prosecutorial cherry picking of Virginia criminal defendant’s statements can destroy the full and real meaning of what the defendant says

Some or many judges — plenty who are former prosecutors — are going to be hostile (or at least very uncomfortable)  at one time or another to effective and convincing arguments by criminal defense lawyers when the judge does not like the state of the law or analysis of the law being presented by the criminal defense lawyer. By the same token, judges have their oaths, and ideally none exist who want to violate that oath, and judges do not like being embarrassed by being lambasted on appeal. When we look at the above heading to this paragraph, it makes perfect sense for a Virginia criminal defense lawyer to argue to a judge that either the rest of a defendant’s statement police should come into evidence, or none of it.

James Thomas Curry’s Virginia Court of Appeals panel remedied his trial judge’s erroneous denial of introducing the rest of his statements to police

James Thomas Curry is a tragic figure, to say the least, as are many Virginia defendants charged with solicciting a minor for sex. His statements to an ersatz fifteen-year old girl were beyond cringeworthy. Perhaps with his realizing his faux pas, he backed up in his online chats with the “teen” by saying he was seeing if the “teen” would take his bait, to teach her a lesson to not take such bait. However, his efforts to meet with her countered that he intended to be altruistic, but at that point he stopped making sexual overtures. Consequently, clearly he would have wanted the rest of his post-arrest statements to police in evidence, and not only the prosecutor’s cherry picked parts. The judge then granted the prosecutor’s hearsay objection to letting in the rest of Curry’s statement. Curry v. Virginia, ___ Va. App. ___ (April 1, 2025).

What is the Virginia caselaw on completeness of a criminal defendant’s statement to police?

Curry makes clear that the Virginia rules of evidence do not curb the following summary of the rule of completeness against cherry picking of defendant statements to police by assistant commonwealth’s attorneys / prosecutors: ““The ancient rule in this Commonwealth is that the prosecution has no right to introduce selected portions of a defendant’s confession and exclude those which tend to mitigate, justify, or
excuse the offense charged.” See Boggs v. Commonwealth, 229 Va. 501, 517 (1985). ‘[I]f the prosecution fails to prove the whole statement, the accused is entitled to put in evidence all that was said to and by him at the time which bears upon the subject of controversy, including any exculpatory or self-serving declarations . . . .’ Pierce, 2 Va. App. at 389 (quoting Am. Jur. 2d, supra).” Curry. 

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense in against Virginia felony, misdemeanor and DUI prosecutions. Start your great defense today by scheduling your free in-person confidential consultation with Jon Katz about your court-pending prosecution, by calling 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.