Hidden defenses can be your driving force for fighting a seemingly uphill court battle, says Fairfax criminal lawyer

Hidden defenses (HD) need to be among your Virginia criminal defense lawyer’s arsenal. As a Fairfax criminal lawyer, by HD I mean defensive opportunities that may not be readily apparent to laypeople. Those opportunities might include Constitutional challenges seeking to suppress your statements to law enforcement officers (LEO) (under the Fifth and Sixth Amendments); challenges to police stops, searches and seizures; objections under the rules of evidence; objections under the Sixth Amendment’s Confrontation Clause and pursuant to hearsay rules; and challenging whether the prosecution has presented evidence meeting all elements of the alleged crime and of the charging document against you. Such arguments often require pulling together, synthesizing and applying complex sets of evidence and law, that ideally call for a Virginia criminal defense lawyer who stays on top of the relevant law, stays on top of the evidence in your case (including investigating obtaining, analyzing and discussing the evidence with you, and obtaining and following up with essential witnesses), and who enjoys and is invigorated in doing the work that you need done.

Virginia Judges are generalists. Not all prosecutors are on top of the governing law nor hidden defenses.

Part of pursuing hidden defenses is recognizing that Virginia judges are generalists, and many have little or no experience doing criminal defense nor prosecution work before becoming judges. They handle plenty of non-criminal matters among the criminal defense cases they handle. Plenty of Virginia prosecutors / assistant commonwealth attorneys are not sufficiently on top of the relevant law. As but examples, I have gone against prosecutors who object to a cross examination question I ask a cop as “Asked and answered” when the question was only asked (before I asked it) by the prosecutor, so the “asked and answered” objection does not there apply. I have had prosecutors object as “hearsay” my eliciting items in a police officer’s report, when the evidentiary rules permit asking a witness on cross examination about their past statements. I have even heard prosecutor object to my questions on cross examination as “leading”, when part of the very essence of cross examination is to lead the witness.

Your Virginia criminal defense lawyer needs to know how to handle hidden defenses and clearly incorrect judicial rulings

Being human and having to handle a large body of the law, even the most able and devoted judge will at times make errors under the law. When that happens, your Virginia criminal lawyer needs to have the courage, courtesy level and persuasive ability to bring to the judge’s attention — if the judge is willing to hear — why the judge should revisit / reconsider and change their incorrect ruling, whether about a hidden defense or otherwise. If the judge still will not change that incorrect ruling, your lawyer must be ready to move on, and to have a written or memorized flowchart for how your attorney is still going to pursue victory for you.

Minor variances of evidence from the charging document are not automatically going to be a winning defense

As a Fairfax criminal lawyer, I go through my Virginia defendants’ cases with a fine-toothed comb for all possible effective defenses, whether hidden or not. Sometimes a Virginia criminal defendant’s summons, warrant of arrest or indictment (collectively, charging document) will have an error in a date, in stating all the elements of the alleged crime, or in naming the correct alleged victim. Sometimes the evidence at trial will not meet all the elements of the charging document. Your Virginia criminal defense lawyer needs to know which of these and other errors need to be raised before trial starts, versus being permitted to raise them after, and which errors can and cannot be corrected by the prosecutor even over a defense objection.

What is a fatal and non-fatal variance in your Virginia criminal charging document?

Concerning the foregoing paragraph about hidden defenses and prosecutorial failure to enter evidence that satisfies the charging document, the Virginia Court of Appeals (in an unpublished, non-binding opinion that nevertheless appears to state the governing law) says: “While it is true that ‘[a] fatal variance occurs when the criminal pleadings charge one offense and the evidence proves another,’ id. at 27, a variance is only fatal ‘when the proof is different [from] and irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the commission of the crime charged,’ That is, ‘[n]ot every variance is fatal. A ‘non-fatal’ variance is one that does not undermine the integrity of the trial and, thus, does not warrant a reversal on appeal.'” Woodley v. Virginia, Record No. 0628-23-2 (Va. App. 2025) (unpublished). At the end of the day, make sure that your Fairfax criminal lawyer / Virginia attorney is ready, willing and fully able to argue these and any other nuances that can spell the difference between victory or not for you.

Fairfax criminal lawyer Jonathan Katz pursues a full court press in fighting for your best possible defense against Virginia felony, misdemeanor and DUI prosecutions. Call our Fairfax County, Virginia criminal defense law firm at 703-383-1100, Info@BeatTheProsecution.com or (text) 571-406-7268 to schedule your free in-person confidential consultation with Jon Katz about your court-pending prosecution.