Police credibility is not assured, says Fairfax criminal lawyer

Police credibility is not guaranteed. As a Fairfax criminal lawyer, I know it is vital to make sure judges and jurors know the same. Yes, it is convenient timewise for a judge to treat police testimony as credible unless clearly shown otherwise. However, judicial oaths and jurors’ oaths do not permit their assuming the truth of police testimony, nor presumptively favoring law enforcement testimony over the testimony of criminal defendants nor their witnesses. Such favoring of police testimony is also barred by the Due Process protections of the Constitution’s Fifth and Fourteenth Amendments.

Why does presumption of police credibility by judges and jurors exist in the first place?

Why do so many Virginia criminal court judges and jurors presume police credibility? They all come from the general population, that has a wide swath of people who carry such presumptions. At the same time, those that recognize the excessive force and other police misconduct committed by too many law enforcement officers — together with the racial profiling and racial discrimination applied by too many cops, and when police remain silent in the face of learning of misconduct by colleagues — will be less likely to apply such presumptions, unless they simply decide that it is only a few bad apples that exist among the vast majority of police. Additionally, giving police such a presumption can be convenient timewise and energy-wise, but hopefully maddening on a judge’s or juror’s soul and morality to the point that they will not give into such due process shortcuts. As a late famous radical lawyer told a criminal jury in closing argument, do not let yourself wrongfully convict the defendant today, only to wake up in the middle of the night later on with the terror of having made such an irreversibly mistaken decision.

Not presuming the truth of police testimony is not cop-hating, but oath loyalty

Virginia judges and jurors must know that not presuming police credibility is not an act of police hating nor anti-police discrimination, but amounts to loyalty to their oaths. Moreover, presuming the truth of police testimony dehumanizes and lessens the very criminal defendants that they testify against. Would a judge or juror wish for themselves or their loved ones to be treated so shabbily in criminal court? Fortunately for me, I do not harbor any preference for police nor any presumption of their credibility. If the situation were otherwise, that could be a barrier to my effectively dismantling and diminishing the truthfulness, reliability and recall at trial and in motions hearings.

The increase in body worn camera recording by Fairfax police and other Northern Virginia law enforcement departments will hopefully dismantle presumptions of police credibility

The repeated and highly-publicized instances of police misconduct and brutality have led to more police departments than ever requiring the wearing and use of body worn cameras by law enforcement officers. Fairfax police are equipped with body worn cameras, as are law enforcement in the majority of Northern Virginia police departments. Glaringly absent from that trend are the police in Alexandria and law enforcement from the two main Northern Virginia commercial airports, and for no good reason that I can see. What do these body camera videos reveal about police credibility? Read on.

When police testimony materially differs from video footage, that enables the Virginia criminal defense lawyer to argue not to trust any of the police officer’s testimony that is not verified by video evidence

As to police credibility, sometimes law enforcement testimony differs so drastically from the incident video footage, that it is appropriate and sometimes even necessary for the Virginia criminal defense lawyer to argue that and of the police officer’s testimony is not reliable if not supported by video evidence. For instance, too many police officers too often say that my Virginia DUI client had slurred speech, or was stumbling, when the audio portion of the video shows the complete opposite. Beyond video, sometimes the police reports and testimony of two police officers involved in the same incident will impeach each other so as to degrade the reliability of their testimony. One example is when police officer A reports that a Virginia DUI defendant had a slight odor of alcohol on his breath and bloodshot eyes, and officer B instead claims a strong odor of alcohol but normal eyes. When two police reports seem to be too consistent with each other, at least at a motions hearing, it can sometimes be worthwhile for the Virginia criminal defense lawyer to ask the police if they compared recollections or notes with each other — or with any incident video footage — before writing their police reports.

Does your potential and actual criminal defense lawyer have a health skepticism of police credibility and law enforcement actions?

Influenced by my years of civil liberties and human rights work that started before I ever started law school, I have a healthy skepticism of police credibility and law enforcement actions. Police are drawn from the general population, so their badge and uniform do not protect them against misconduct and lying on the witness stand. Moreover, power an corrupt and must be harnessed. Police have profound power that they wield under some of the most stressful situations and, yes, often with suspects, arrestees and other civilians challenging, objecting to, and taunting their actions along the way, making it all the more challenging for them not to abuse their power and authority. I am able to see each police officer for their humans they are, but I put my Virginia criminal defense clients first at every stage, not only because I am obligated by the lawyers’ ethics rules to zealously defend each of my clients, but also because my own values and ethics make me not only comfortable with such an approach, but to delight on this path.

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing the best defense for Virginia DUI, felony and misdemeanor defendants. When you meet with Jon Katz about your court case, you will leave that consultation more confident and knowledgeable about your defenses. Call 703-383-1100 for your free initial confidential consultation with Jon about your court-pending case.