Inconsistent Virginia prosecution witness testimony is not a winnable appelate issues, says Fairfax criminal lawyer

Inconsistent testimony (IT) from Virginia prosecution witnesses can be unsettling and even maddening to people with a conscience. Nonetheless, as a Fairfax criminal lawyer, I know that unless the IT is so stark as to not enable any rational trier of fact (whether jury or judge ) to convict, the only body able to remedy IT to the defendant’s benefit is the jury, or else a judge sitting at a bench / non-jury trial.”So long as a witness [testifies] as to facts[,] which, if true, are sufficient to maintain their verdict, then the fact that the witness’ credit is impeached by contradictory statements affects only the witness’ credibility; contradictory statements by a witness go not to competency but to the weight and sufficiency of the testimony. If the trier of the facts sees fit to base the verdict upon that testimony there can be no relief in the appellate court.” Michael Timothy Johnson v. Commonwealth of Virginia, ___ Va. App. ___ (Jan. 7, 2025) (citations omitted).

Make sure your Fairfax criminal lawyer / Virginia attorney is effective at cross examining prosecution witnesses and expliting inconsistent evidence presented by the assistant commonwealth’s attorney / prosecutor

Because inconsistent testimony is not generally a Virginia appellate issue, that makes it all the more important that your Fairfax criminal lawyer / Virginia attorney is fully effective and skilled at obtaining and reviewing essential evidence in your case, fully investigating your case, cross examining prosecution witnesses, challenging all prosecutorial evidence, and presenting compelling reasons why reasonable doubt exists that bars a conviction. Where, as with the above-cited Michael Timothy Johnson conviction, the alleged victim is a minor, you want to assure yourself that your Virginia criminal defense attorney will not hesitate by the minor status of the alleged victim to still pursue all necessary means for dismantling, diminishing, and discrediting adverse testimony and evidence, including not putting on any kid gloves when cross examining the alleged minor victim. Johnson is serving twenty-three years of active prison time for his conviction for two counts of taking indecent liberties with a minor under fifteen years of age, and one count of aggravated sexual battery. The stakes are high for any sentencing involving a conviction for sex crimes against minors, and must be defended tooth and nail.

Am I protected against a conviction for sexual activity with a minor if such activity is not criminalized in my native country?

In many countries, the age of consent is much lower than eighteen years old for sex between an adult and minor. That is no defense against the state of the law in Virginia. In Virginia, adults need to take a zero tolerance approach to any sexual activity with minors, and need to know that sex crimes with minors in Virginia are strict liability crimes in terms of not providing any defense of reasonably believing that a minor was an adult, even if the minor lied that they were an adult or presented a fake driver’s license or other identification indicating adulthood. Under the contributing to a delinquency of a minor statute — Virginia Code § 18.2-371 — no defense in Virginia even exists for a person who just turned 18 years old to have sex with a person who is one day shy of their eighteenth birthday. Again, any inconsistent or contradictory testimony by an alleged crime victim in Virginia is not a matter of law / appeallate law for which to obtain relief, versus a matter of evidence / fact to argue to your factfinder, whether that be a jury or judge.

A former Fairfax criminal defense lawyer authored the appellate opinion confirming Michael Johnson’s sex crime conviction

As an aside, the foregoing Johnson Virginia Court of Appeals inconsistent testimony opinion was authored by former Fairfax criminal defense lawyer Vernida Chaney, who was previously a public defender lawyer for many years. (And as a further aside, only a year or two before becoming an appellate judge, Judge Chaney wonderfully came to my assistance by meeting me on a weekend morning to provide me an N95 mask when I learned I needed to go to a jail that required them, but where none of the stores I checked had them, in the middle of the pandemic.) Although former Virginia criminal defense lawyers might be better able to understand and be sensitive to criminal defendant’s issues, they are sworn to uphold their oaths, so they may not inject any bias into their actions and decisionmaking, rather than following their oath.

Fairfax criminal lawyer Jonathan Katz knows that the even when the law, evidence, judge and others seem stacked against you, that there are still avenues for finding openings for strengthening your defense and for turning around the judge, jurors and prosecutors. If you have been charged with a Virginia felony, misdemeanor or DUI offense, call Jon Katz’s staff at 703-383-1100, Info@BeatTheProsecution.com, or (text) 571-406-7268 to schedule your free in-person strictly confidential initial consultation with Jon about your court-pending prosecution.