Recordings by doorbell cameras, 911 calls, video cameras and other media can be a big hurdle for Virginia criminal defendants

Recordings of our activities abound. Police and prosecutors take full advantage of that. As but a for instance of how frequently our every move can be recorded, as a Fairfax criminal lawyer, I knew that police bodycam video would record me and my client when I accompanied him to the police station to receive a summons for an additional criminal count against him. Sure enough, that recording was included in the discovery / evidence package provided by the prosecution in this Virginia criminal action. Doorbell cameras are ubiquitous. Virginia law permits one-party recording of conversations, meaning that one never has any court protection against introducing surreptitious recording by the other party to a phone call or other conversation. Retailers, restaurants, office buildings and more are outfitted with video cameras all over the place. Our movements and actions are constantly tracked not only by video, but also through GPS technology in our cellphones. When we use the Internet, our actions, search phrases, and websites visited are easy to track by a combination of isolating our IP address and police seizing and analyzing our phones, laptops, smartpads and any other devices we use for Internet access. Consider all of this when weighing the risks of being caught, prosecuted and convicted, and how you and your Virginia criminal defense lawyer will fight the charges against you.

What do I do if my crime may have been caught on recordings?

The widespread use of recordings of human activities hopefully curbs people from committing crimes in the first place, so that they will not need to hire a Virginia criminal lawyer. Nonetheless, if you commit a crime that might have been caught on a recording, talk with your Virginia criminal lawyer about how to proceed with that. Clearly, it is always essential to pursue obtaining discovery / evidence from the prosecution. However, watch out insisting that your Virginia criminal lawyer subpoena doorbell camera footage, security camera footage from a nearby business, or highway camera footage, if the real risk exists that any of that video footage will contain evidence that otherwise would not have been viewed by the prosecution and will on balance be more damaging to you than not.”

Be ready to challenge whether the video footage or audio recording accurately and completely depicts what really happened

One of my big bones of contention as a Fairfax criminal lawyer is the common Virginia police department practice of not preserving all dashcamera recording footage of a charge criminal incident, but instead only to save the one to two minutes or so before the law enforcement officer (LEO) activated his or her police cruiser’s emergency lights or sirens, even when the LEO claims to have been witnessing moving violations by the Virginia DUI or other defendant’s driving actions for at least three or more minutes before stopping their motor vehicle. That police failure to preserve more of that video evidence cannot be sufficiently explained by the concept of limits on data space when in this day and age maintaining digital data is more efficient and inexpensive than ever. When police do not save such video footage, I am ready to argue for appropriate relief for spoliation of evidence, right up to arguing to bar police testimony of my client’s alleged behavior that LEO video equipment originally captured but which footage was deleted by police practice. On top of all that, be ready to challenge the accuracy and completeness of the video and audio recordings that a Virginia prosecutor wants to use at trial. Recording distortions and skips can occur. Talk with your Virginia criminal defense lawyer about whether you should engage the services of an audio and video recording professional (whether or not a former LEO or FBI agent themselves) to advise on that.

A Virginia criminal defendant’s claims of inflamed juror passions do not guarantee barring evidence from trial

Ben Wynkoop was convicted by a jury for second degree murder, after his trial judge overruled his lawyer’s motion to prevent the jury from hearing the entire gruesome six minutes of the 911-recorded events that happened from soon after Wynkoop kicked in the door of his marital home (his wife had a protective order for him to have no contact with her), where they exchanged words with each other (the extent to which any of what his wife said was excludable under the evidence rules is the subject for a separate discussion), he fatally shot her, she was gasping for air, and he left. Wynkoops’s claim to the police and at trial that he shot in self defensive response to his wife’s holding a gun on him, was not helped when he is the one who kicked in the door of the very home that the protective order required him to stay away from (he said he was angry (being angry did not help his defense) that his wife had agreed to talk with him in person, but then barred him from the house after he drove there from out of state), and when the 911 recording apparently only depicts words and responses from his wife telling him to leave and never threatening him with a gun. In rejecting Wynkoop’s appellate argument that the gruesomely long part of the 911 call after the fatal shooting (with Wynkoop’s wife gasping to breathe) should not have been played to the jury, the Virginia Court of Appeals says: “Though the recording is, as Wynkoop points out, a recording of someone’s final moments, the sounds are difficult to make out, and the recording does not rise to a level that inflames the passions of the jury such that it renders the jury unable to make a rational evaluation of the evidence. See, e.g., Fields, 73 Va. App. at 673 (listing ‘particularly graphic crime scene or autopsy photos’ as ‘[c]ommon examples’ of unfairly prejudicial evidence). Moreover, a defendant is not permitted to sanitize the evidence.” Wynkoop v. Commonwealth of Virginia, Record No. 0843-24-1 (Va. App. 2025) (unpublished) (citations omitted). Recordings can be dangerous (and sometimes helpful) and must be handled head-on by Virginia criminal defense lawyers and their clients.

Fairfax criminal lawyer Jonathan Katz thoroughly prepares and defends against the prosecutions of his clients alleging Virginia felony, misdemeanor and DUI offenses. When you meet with Jon Katz for a free in-person strictly confidential initial in-person consultation concerning your court-pending Virginia prosecution, you have started yourself on the path of pursuing your best defense. Usually Jon can meet with you within a business day of your contacting his staff at 703-383-1100, Info@KatzJustice.com or texting us at 571-406-7268.