Explanation for Police Action Must Be Narrowed if Unchallenged
Explanation for police arrival at the scene can be inadmissible if more than cursory, says Fairfax criminal lawyer
Explanation for police arrival at an alleged crime scene or investigation is commonly sought by prosecutors at trial. As a Fairfax criminal lawyer, I have the following support in the law that such testimony should be brief, not more prejudicial than probative, and certainly with strict limits on any hearsay evidence that is permitted in the process. For instance, a police officer testifying that s/he arrived at the scene based on a call to the police stations presents fewer evidentiary / inadmissibility issues than when the police officer testifies that "a next-door neighbor informed our police headquarters dispatcher that the caller had seen a man in an orange shirt breaking into a car." The details from police for arriving at the scene should not be expanded beyond cursory limits if the criminal defendant does not first challenge the police investigation. Furthermore, such details should not be out of proportion with any such defense challenges in the first place.
Will the trial judge simply reply, "this is the way it has always been done?"
Plenty of trial judges -- and many Virginia judges are former prosecutors who sought to elicit such testimony when trial lawyers -- may (vocally or to themselves) respond to a defense objection to such police explanation for arriving at the scene with "this is the way it has always been done." "This is the way it has always been done" is not a legal basis for letting such behavior continue in the current and future trials. Were that not so, we would still have legally enforceable racially segregated public schools, and a society without wheels, because the day before the wheel was invented, a wheel-less society was "the way it has always been done." This article includes essential Virginia caselaw and persuasive legal authorities to support judicial narrowing of such police testimony.
We start this legal argument by looking at Virginia law on relevancy of evidence
Virginia trial judges are generalists, in that they handles plenty of cases beyond criminal matters. When your Virginia criminal defense lawyer gains credibility with the judge and presents themself as open to inquiries from the judge, your judge may be more willing to turn to your lawyer for guidance about the applicable law. When it comes to the law of police explanation for their arrival at the incident scene, we start with the definition of relevant evidence under the Virginia evidence rules: "'Relevant evidence' means evidence having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence." Va. S. Ct. R. 2:401. We narrow admissible relevant evidence further: "Relevant evidence may be excluded if: (a) the probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or (ii) its likelihood of confusing or misleading the trier of fact; or (b) the evidence is needlessly cumulative." Va. S. Ct. R. 2:403.
What does the law of evidence say about police explanation for their arrival at the incident scene?
Detailed explanation for police arrival at the incident scene and for the police investigation is not justified where the defendant "never challenged at trial why [the police officer] was at [the incident scene]. He never argued to the jury in opening that [the police officer] insufficiently investigated the veracity of the informant's information and made automatic assumptions about his guilt, "Parker v. State, 970 A.2d 320, 324 (Md. 2009). The Virginia Supreme Court says the following police statement "did not violate the hearsay rule and was admissible to show why the officers went to the scene of the alleged crime": "'(W)e had gone to investigate noises heard in that building." Counsel for defendant then objected to the statement as being hearsay and inadmissible. The court remarked: ‘I think it's proper evidence to show why he was there, without disclosing any act or anything of that character, but why he happened to be there, * * *.’ An exception was taken to the court's ruling. See Fuller v. Commonwealth, 201 Va. 724, 729, 113 S.E.2d 667, 670, 671 [(1960)]." Foster v. Commonwealth of Virginia, 209 Va. 297, 303 (1968). Numerous state courts nationwide have approvingly cited the following legal treatise for limiting police testimony about why they arrived at the incident scene: “'In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so "upon information received" and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.'" Parker, supra, 970 A.2d 320 at 327 (emphasis in original) (quoting Graves v. State, 637 A.2d at 1202 (Md. 1994) (citing McCormick on Evidence § 248, at 587 (Edward W. Cleary ed., 2d. ed.1972)).
What should my Virginia criminal defense lawyer do if the police officer gives hearsay testimony in the officer's explanation for arriving at the scene or for the police investigation?
The foregoing legal authorities do not jump out of the page when researching the topic, meaning that many Virginia judges and prosecutors may not know how much the law narrows the extent to which law enforcement officers (LEO) may provide explanation for the reason for arriving at the scene and conducting their investigation. This article can be invaluable in presenting the issue to the court to the criminal defendant's benefit. This matter is a vital to protecting criminal defendants' Due Process rights under the Constitution's Fifth and Fourteenth Amendments.
Fairfax criminal lawyer Jonathan Katz focuses on your best defense in court against Virginia felony, misdemeanor and DUI prosecutions. Call 703-383-1100 for your free initial in-person confidential meeting with Jon Katz about your court-pending prosecution.
