Home » Blog » Criminal Defense » Mischaracterization of evidence by police- Put the brakes on that

Mischaracterization of evidence by police- Put the brakes on that

Call Us: 703-383-1100

Mischaracterization of evidence by Virginia police- Optical illusion image

Mischaracterization of evidence is too common in Virginia police testimony, says Fairfax criminal lawyer

Mischaracterization of evidence from Virginia police is so common as to be beyond exasperating to those who do not know that such evidence distortion may well be coming from around the corner. As a Fairfax criminal lawyer, I know to expect, address and remedy such a state of affairs. You as a potential Virginia criminal and DUI suspect can also help by asserting your Fifth Amendment Constitutional right to silence with the police, your Fourth Amendment Constitutional right to decline consent searches by law enforcement, and your right in Virginia DUI cases to decline field sobriety testing and roadside preliminary breath testing (PBT) (versus the mandatory post arrest blood alcohol concentration testing).

Why do so many Virginia police mischaracterize evidence?

When a Virginia law enforcement officer or other prosecution witness mischaracterizes evidence, that arises from such factors as: prevarication, not caring about accurately processing and recounting information, information overload on the incident date and possibly also on the witness stand, treating one’s police report as gospel even if that report contains errors, mis-recollection of facts,  poor memory, mistaken interpretation of the evidence and the events, bias against the group the defendant falls in (including racial and ethnic group), and inability to focus sufficiently while on the witness stand. Incident video evidence often reveals such mischaracterization, including inaccurate police claims of slurred speech by a Virginia DUI defendant who is not slurring at all (or might sound slurred due to a non-American accent), stumbling from alleged alcohol (when the video shows no stumbling), and damning statements that the defendant never made in the first place. Such inaccurate testimony sometimes gets so grossly cumulative that I argue at trial that nothing the police officer says on the witness stand is reliable that is not confirmed by the incident video (which video does not convey such relevant evidence in a Virginia DUI trial as the strength nor weakness level of the odor of alcohol on the suspect’s breath).

If so many Virginia police officers mischaracterize evidence, why add fuel to that fire by providing them data that you have no obligation to provide?

When a Virginia criminal or DUI suspect waives his or her right to remain silent with police or to decline consent for searches or for field sobriety testing and voluntary preliminary roadside breath testing, the suspect not only limits police ability to obtain defendant-damning evidence that can be used in court, but the suspect also provides the law enforcement officer with an opportunity for mischaracterization of more data. Furthermore, when a Virginia DWI suspect submits to field sobriety testing, the suspect is inviting the possibility that the police officer will engage in the willful ignorance of not sufficiently inquiring into whether you have any physical or health impairments or other health or orthopedic issues that might affect your ability to succeed with FST’s. When that happens, be ready for the prosecutor to try to turn such cross examination on its head by asking the police officer on redirect examination whether the defendant ever complained about any physical or medical issues.

Any discomfort you may feel over real or feigned police perturbance at your asserting your rights not to provide them evidence can pale in comparison to the discomfort you will suffer when convicted or more harshly sentenced as a result of waiving those rights

Please re-read the foregoing sentence. Many Virginia criminal and DWI defendants cower at being confronted by police, and will try to comply with their every request in the hopes of minimizing any discomfort from doing otherwise. However, just as tainted meat might at first taste delicious, waiving your rights with the police can end up tying your stomach into all sorts of knots that would have been avoided had you simply applied the power and wisdom of no and know.

What can my Virginia criminal defense and DUI lawyer do to counter any police mischaracterization of the evidence?

The foregoing question about police evidence mischaracterization is a great one to ask any lawyer you interview for possibly defending you in court. An even better question is to ask how that lawyer will handle any curveball in court, of which there are many. I have successfully taken hundreds of criminal defense and DUI cases to trial, where I repeatedly deflate, deflect, and repackage initially seemingly damaging evidence and testimony against the defendant. Virginia DUI and criminal trials are not child’s play. If the lawyer you are considering hiring will not answer the foregoing simple questions head-on, that is a red flag.

Fairfax criminal lawyer Jonathan Katz spends virtually 100% of his time in defending against Virginia DUI, felony and misdemeanor prosecutions, because he knows he is on the side of the angels and delights in the rough and tumble of fighting in court for the best possible results for his clients. For your free in-person initial consultation with Jon Katz, call 703-383-1100