Exploiting the absence of essential prosecution witnesses is essential for the accused, says Fairfax criminal lawyer

Exploiting the absence of essential prosecution witnesses is essential for the accused. As a Fairfax criminal lawyer, I know that such absence does not always mean victory, because sometimes the witness shows up after all, sometimes the prosecutor finds a workable alternative witness or piece of evidence, sometimes (at the very least) the prosecutor obtains a trial date continuance for a witness no-show, and sometimes the prosecution recharges the case after obtaining a non-prejudicial case dismissal after being denied a trial date continuance. When you have a Virginia criminal defense lawyer who knows how to skillfully work around all these scenarios, you are on a better defensive footing.

Do not assume that the prosecutor will volunteer whether all their necessary witnesses are present, if not asked

Do not assume that the prosecutor will volunteer whether all their necessary witnesses are present, if not asked. Even when they are asked, they do not always know. They might assume a witness is showing because of being subpoenaed or because the prosecutor spoke with the witness earlier in time or because the prosecutor assumes that the lead police officer is assuring their presence or expected presence. Prosecutors do not always know who their essential witnesses are. If they do not watch the incident video fully and carefully, fully read the police reports and notes, and inquire of their witnesses, they may simply not know. Even when they make that inquiry, they may still not know whether they have their essential witnesses in court, whether based on a misreading of the law, mis-review of the evidence, overwork, insufficient attention or otherwise. It is your Fairfax criminal lawyer / Virginia criminal defense attorney’s duty to make such independent inquiry, sometimes even coming down to calling the relevant drug lab or other government laboratory or police department to find out if the witness is on duty that day — or even still an employee of that agency — for starters. Exploiting the absence of essential prosecution witnesses demands that level of defense lawyer diligence.

Exploiting a police officer’s injury-based absence to convert a Virginia DUI and reckless speed prosecution to a speeding infraction

In my private life, I do not usually believe in exploiting another human’s illness or injury to my advantage. However, in court, doing so can be crucial for the criminal defense. In one instance, the prosecutor obtained a trial date continuance based on the arresting police officer’s injury and related medical treatment. When we returned to court, the officer was not present. When I informed the prosecutor that the police officer was not in the courtroom and did not seem to be present at all that day, all the assistant commownealth’s attorney needed to do was to check with the officer’s police department (and possibly simply with his colleagues) to learn that this officer was still on injury leave. At that point, my client and I had the choice between opposing a prosecution postponement request that might be granted, and obtaining the great speeding infraction plea that got my client’s Virginia DUI prosecution dropped, and reckless speeding amended to a speeding infraction, which is not a crime. Certainly a permanent dismissal would have been better, but if the prosecutor had been denied a continuance, he probably would have been granted a nolle prosequi / non-prejudicial dismissal, enabling the prosecutor to recharge my client’s case within the one year statute of limitations for misdemeanor accusations.

Should I pray for the absence of essential prosecution witnesses?

It is folly to pray for the absence of essential prosecution witneses  without fully preparing your defense with a qualified Virginia criminal defense lawyer. (Sadly, there are people who engage in actions that amounts to witness tampering and witness harming, which is both morally and ethically wrong, and a crime.) At same time, my heart sinks to my stomach when I see unrepresented criminal defendants plead guilty when the prosecutor did not have the essential witnesses nor evidence to prove their case, and might never have had those witnesses nor evidence even on a later date. When you have the right Virginia criminal lawyer on your side, exploiting the absence of essential prosecution witnesses and evidence may sometimes be your saving grace.

Fairfax criminal lawyer Jonathan Katz works tirelessly for your best defense. For your free in-person confidential consultation about your court-pending prosecution, call 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.