Cross examining prosecution witnesses is an essential component to obtaining an acuittal, says Fairfax criminal lawyer

Cross examining (CE) prosecution witnesses must be done skilfully, effectively, in the moment, and, most importantly on the road to obtaiing an acquittal / not guilty verdict to the extent possible. As a Fairfax criminal lawyer, I recently obtained an acquittal after engaging in CE with the complainant to win for the totality of the circumstances overcoming any statutory prima  facie evidence / presumption that the Virginia criminal defendant “intended to place [the alleged victim], or reasonably should have known that the other person was place, in reasonable fear of death, criminal sexual assault, or bodily injury to himself or a family or household member.” See Virginia’s stalking statute, Virginia Code § 18.2-60.3(A). 

Cross examining and recounting to transform the alleged victim’s story into the defendant’s story

Cross examining opposing witnesses by itself should not be relied upon by a criminal defense lawyer to win at trial, but often is an essential weapon for obtaining a not guilty verdict. Here, the complainant alleged in her related handwritten application for a protective order against my client, that they had been in a longterm relationship that had recently ended, and that after the complainant texted my client to stop contacting her, that he still did so, together with one instance of driving past her home. I started telling the criminal defendant-friendly story from the very beginning, through openeing statement, contininuing into cross examination, and moving right into the motion to strike and closing argument stage (except that the judge ruled in our favor at closing without even hearing closing argument from me).

Once a Virginia criminal defense lawyer enters his appearance with the court, it is time to be finding ways to win the case

No matter how challenging the caes defense may at first appear, a Virginia criminal defense lawyer has no choice but to find the best possible approach possible to obtaining a not guilty verdict, through cross examining prosecution witnesses ang going beyond that. This includes obtaining essential discovery and other evidence in the case, independently investigating the case and fully discussing the case and evidence with the criminal defendant. At least some criminal defense lawyers may prefer to obtain discovery from the prosecution before receiving a full recounting of the incident from the criminal defendant, to reduce prevarication and glaring omissions by the defendant. However, that needs to be balanced against the importance of the defendant’s being able to discuss the case over time so that s/he can be as fully and relevantly open with the defense lawyer to assist in pursuing an acquittal. If the Virginia criminal defense lawyer waits until weeks or longer after the incident date to fully listen to the defendant’s version of events, the defendant may by then have forgotten some critical and defense-friendly aspects of the case, and the defendant may have become detached from creating, maintaining and cultivating a truly valuable connection and engagement with his or her Virginia criminal defense lawyer.

How did a Fairfax criminal lawyer obtain a not guilty verdict through cross examining the opposing witness

The alleged victim in this Fairfax criminal defense case portrayed my client as repeatedly communicating to her after she texted him to stop. Granted that doing so might constitute prima facie evience of guilt, but prima facie evidence is rebuttalbe evidence that does not automatically require evidence to be provided by testimon of the defendant nor any defense witness nor any defense exhibit. Here, the complainant’s application for a protective order portrayed at worst a persistently annoying and obnoxious defendant exercising his First Amendment right to see whether they could rekindle their relationship, without making any demands. The alleged communications by my client to the complainant simply did not serve to satisfy the Virginia stalking statute’s element that the communciations or actions of the defendant either threaten physical harm to the complainant, or make the defendant know or reasonably know that such conduct will create such fear. To drive that point home, my cross examining of the complainant included questions along the lines of the following: Q. Did you apply five days after the incident for a protective order against my client? A. Yes. Before you ever filed for such a protective order, Jim on his own stopped contacting you. A. Yes. Q. Your application for a protective order does not allege that Jim threatened physical violance against you. A. Correct. Q. Your application for a protective order does not allege that Jim ever caused violence against you. A. Yes. Q. In fact, Jim has never been violent to you. [Had the complainant said yes, I would have pointed out the absence of such a claim in her application for a protective order.] A. No. Q. Jim has never threatened violence against you. A. No. Q. Nowhere in your application for a protective order do you say you were scared? [On direct examination by the prosecutor, the complainant claimed to have been scared by my client’s behavior.] A. No. Q. Nowhere in your application for a protective order do you say you were in fear. A. No.

Looping the complainant’s own words into the criminal defendant’s motion to strike / motion to dismiss the prosecution for insufficient evidence.

In moving to strike the evidence / moving to dismiss, I pointed out to the judge that the Virginia stalking statute prohibits actions and communications of a defendant that cause fear of bodily injury, not simple generalized fear (for instance fear that the defendant will contact the complainant agan). The judge denied my motion to strike, finding that the prosecution had made a prima facie case in the light of the evidence that the complainant had testified to have continued to receiving communications from my client even after texting him to stop. By this time, having had my objections overruled about the lack of sufficient proof that my client had been the source of the allegedly offending texts (versus someone else using the same texting number, for instance), I had already owned my client’s alleged words to our best advantage, to show that his alleged communications sought whether their relationship could be rekindled rather than demanding a reconciliation nor demanding anything at all. I included underlining that my cross examining the complainant elicited the absence of any threat of physical violence by my client. (The prosecutor did not mention Banks v. Virginia, 67 Va.App. 273 (2017), which affirmed a stalking conviction where the complainant had told the defendant to stop contacting here. I was ready to distinguish Banks from my case, in part because Banks had never had a romantic relationship with the complainant but nonetheless obsessed over her and insisted they were meant to be together, whereas my client’s alleged communications was that he hoped for a reconciliation.)

Being denied a motion to strike the evidence does not automatically mean a conviction unless the defense presents testimony

A motion to strike evidence argues whether the prosecution’s evidence and testimony, if believed, satisfies every element of the alleged crime. Closing argument challenges whether the prosecutor has proven beyond a reasonable doubt that the alleged crime took place. To me, the judge’s denial of my motion to strike did not necessitate presenting any defense evidence. And it is a good thing that we did not, because the judge found my client not guilty without even hearing my closing argument. In doing so, the judge repeated my messages that came out through opening statement and cross examining the complainant, which is that the alleged communications from my client were not reasonably fear-inducing.

Is it legally safe for me to continue to communicate to a person who has told me not to?

Do not let my not guilty verdict through cross examining the complainant in this Virginia prosecution encourage you to continue to communicating with any person who tells you to stop communicating to them. First, the law changes from state to state. Second, the strength of your defense changes from set of facts to set of facts, with what the factfinder (whether a jury or judge) believes or not, with who your jury and judge are, and with their mood and changing viewpoints. Yes, if your elected official says to shut up you might find a compelling reason to continue communicating to your politician, whereby you can assert your First Amendment right to free expression. However, if you are inclined to communicate to anyone after they say to stop, it is ideal for you first to seek advice from a suitable criminal defense lawyer.

Fairfax criminal lawyer Jonathan Katz tailors his defense for each client to their specific situation and needs, in the pursuit of victory against Virginia DUI, felony and misdemeanor prosecutions. Learn about the positive difference that Jon Katz can make for your Virginia criminal defense by calling 703-383-1100 to schedule your free initial in person confidential consultation with Jon about your court-pending case.