Testimony preparation requires deep focus with your criminal defense attorney, says Fairfax criminal lawyer

Testimony preparation (TP) is a vital part of your work with your criminal defense attorney. As a Fairfax criminal lawyer, I know that TP starts with my very first meeting with a potential client who may testify for his or her assault, drug, DUI or other trial. Sometimes, before I even sit down, my potential client wants to start getting things off their chest, for instance: “This was a big misunderstanding…”; “I was framed…”; or “I was the victim…” Sometimes I respond by saying that I certainly want to know what happened, but that if the suspect tells me a candy-coated, filling-in-the-blanks or otherwise actually or possibly inaccurate version of the incident, that might tie my hands about how helpful I can be in presenting their testimony at any trial. I emphasize that I am there to help them and not judge them, and that they don’t need to persuade me that they are on the side of right, but that their testimony (if any) and our arguments are geared towards convincing prosecutors in any settlement negotiations, and persuading the judge and any jurors at trial and with pre-trial motions hearings. What good is it, for instance, for the defendant to tell me s/he was just the getaway driver for an alleged bank robbery, when not realizing that being the getaway driver is a crime? What good is it for an assault defendant to tell me that s/he was trying to put the alleged victim in their place, when that is not a defense? I don’t want to elicit prevarication by my last two sentences, but instead to make clear to my clients that we need to dig deeper when their justifications for their actions fall flat under the law.

Testimony preparation includes being ready for possibly skewering cross examination

Testimony preparation needs to include anticipating possibly skewering cross examination from the prosecution. As a Fairfax criminal lawyer, I know that the police in my county ordinarily have body cameras running in their encounters with suspects, and sometimes dash cameras, and that the vast majority of other Northern Virginia law enforcement agencies utilize one or both. Whether intentional or not, most police at various times engage in the fine art / fine deception of cutting off a suspect’s answers by asking new questions or making new declarations. Although only a movie, My Cousin Vinny exemplifies the dangers of talking with law enforcement at all (waiving one’s Fifth Amendment Constitutional right to remain silent with law enforcement officers (LEO) is at your own peril), where one of the characters early in the film asks “I killed him?” when accused, which risked being mis-repeated as an admission of “I killed him.” Nonetheless, regardless of socioeconomic background, profession, or wealth level, I repeatedly see suspects on video making the grave error of talking with police, often when frightened, filled with distracting adrenaline, and often with more than one police officer barking questions, statements and commands at them in a way that would challenge even the coolest-headed intellectual not to make mis-statements. All of your mis-statements to police are ripe for cross examination.

How can I testify if I mis-spoke or lied to police?

Often it is best to assert your Fifth Amendment Constitutional right to remain silent at trial. At the same time, you need to talk with your Virginia criminal lawyer for testimony preparation even if you might not testify. In many instances — particularly in the realm of he-said / she-said assault allegations — your silence at trial may close to assure your conviction. What to do, then, when you have lied or otherwise mis-spoken to police about the incident, and when caught on LEO bodycamera video at that? An important starting point is for your attorney to spend time — sometimes needing more than one meeting — working with you to separate out your accurate from inaccurate statements to LEO, to determine the cause of each such mis-statement, and to be ready to explain that from the witness stand. In one trial victory, my client testified that when he initially answered a police phone call, my client was in a public place and was distracted about discussing his personal affairs where others could hear. When he appeared at the police station, the police officer was cutting him off. Therefore, by my having engaged in pretrial discussions with my client, I was ready to deflate any prosecutorial cross-examination questions about why my client did not tell certain aspects of his story to the police officer. One of the greatest examples of taking a suspect’s misstatements or prevarications to police and still presenting great and winning direct examination testimony from the defendant was when great criminal defense lawyer John Delgado direct examined his fictitious murder defense client who explained that he gave a false murder confession to police when he felt he had nothing more to live for.

What do I do if I am stuck between having told mis-statements to police but am near sure to lose if I do not testify at trial?

If you might need to testify at your trial, you want ot assure that you obtain a Virginia criminal defense lawyer who will give you at least the level of testimony preparation and cross examination preparation that is outlined above. It goes much deeper and broader than that, including to assure that your attorney will help you be resilient on the witness stand and avoid the mental and physical exhaustion that can accompany such testimony.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best possible defense against Virginia felony, misdemeanor and DUI prosecutions. With Jon Katz, you get a free in-person initial confidential consultation about your court-pending Virginia prosecution. To schedule your meeting with Jon, call 703-383-1100, Info@KatzJustice.com and (text) 571-406-7268.