Video evidence must be obtained and utilized to the hilt, says Fairfax criminal lawyer

Video evidence VE must be timely obtained for your defense, whether by a discovery order, request to the prosecutor’s office, subpoena, or a combination of the three. As a Fairfax criminal lawyer, I move quickly on obtaining VE once I am hired. The best way to obtain such evidence depends on the circumstances and the county where the case is being prosecuted. For Fairfax County General District Court prosecutions, absent unusual circumstances, the judges are probably not going to order the Commonwealth’s Attorney’s Office to provide VE and other discovery evidence any more in advance than the ten days before trial agreed to by the prosecution when this form discovery order is delivered to the prosecutor’s office at least 25 days before the trial date.  The parallel discovery form for Fairfax Juvenile & Domestic Relations District Court is here. The satellite Fairfax prosecutor’s offices (Fairfax City, Herndon and Vienna) seem to still prefer this discovery order form without a deadline before the trial date. (NOTE: The prosecutors for those jurisdictions are updated from the foregoing form.) Here is a model Fairfax Circuit Court criminal discovery order. The key to whether to proceed with the prosecutor’s agreed discovery procedure or to seek judicial intervention for altering that approach, depends on how each prosecutor and prosecutor’s office pulls through in providing discovery. Clearly, when the prosecutor’s office only provides discovery without a discovery order, there is not discovery order to enforce. However, if the prosecutor is going to provide discovery earlier or more extensively than by deviating from the procedure agreed to by the prosecutor’s office, that is to be considered. And then there is a Northern Virginia prosecutor’s office that with many of my clients’ cases provides discovery after the date mandated in the discovery order that I have obtained pursuant to a hearing (where this prosecutor’s office ordinarily objects to the discovery form I submit, for making VE downloadable, where if I watch it online, the prosecutor’s office has a full chronological trail of my VE viewing).

When my Virginia criminal lawyer receives my video evidence, what should my attorney and I do with that evidence?

Some Virginia prosecutors’ offices condition providing video evidence upon your lawyer’s agreement to limit the dissemination of the VE (for instance not providing copies to anyone outside the defense team), and other are even stricter by conditioning the VE provision via a copy for your lawyer (rather than your lawyer and you visiting the prosecutor’s office to view the VE) but no copy for you, whereby you are free to visit your lawyer’s office or your lawyer offsite to view the VE footage. In any event, Fairfax prosecutors and many other prosecutors’ offices often provide VE via an online link that will have an expiration date and will require a user ID and password. One Northern Virginia prosecutor’s office that objects to court orders to make VE discovery of the defendant downloadable, will often make the VE footage not showing the defendant, as non-downloadable. Simple technology exists to save and replay non-downloadable VE discovery, for instance using X-box recording software. However, downloadable is preferable as a faster downloading method that presents a closer mirror image to the original.

How can my Virginia criminal lawyer exploit my VE for all it is worth?

Do not be surprised when the law enforcement officer/police officer/deputy sheriff in your Virginia prosecution claims not to have watched the incident video. Without skipping a beat, your Fairfax criminal lawyer / Virginia attorney can whip out the VE discovery saved to a flash drive, and proceed to play portions of that VE in cross-examination of the cop. At this point, the LEO is damned if s/he did actually review the VE, and still damned if she hasn’t, knowing that the criminal defense lawyer is prepared enough not only to have watched the VE, but to play portions of the VE in a way that prevents the police officer from wiggling out of what the VE shows. Here are some cross examination chapters and questions (the questions are paraphrased) that I asked in federal court that resulted in the court’s granting my motion in limine to exclude horizontal gaze nystagmus (HGN) field sobriety testing (FST / SFST) from the then-scheduled jury trial, even though the trial judge declined to suppress my client’s arrest for this DUI case that took place on federal property and was prosecuted under the Virginia driving under the influence of alcohol and/or drugs statutory provision at Virginia Code § 18.2-266. “You call your testing standard field sobriety testing, but you never received an SFST or FST instructional manual or any other written instructional documents.” “The HGN was the only field test you administered, as my client declined to perform any others [as was his right to decline, without permitting an inference of consciousness of guilt].” “You were trained to check each of the subject’s two eyes two times for each of the three clues you check for in the HGN test (lack of smooth pursuit, onset of nystagmus prior to 45 degrees, and nystagmus at maximum deviation)?” A: Yes. “That amounts to twelve passes total by your stimulus with subjects’ eyes?” A: Yes. “You only passed your stimulus, your finger, a total of six times?” A: Yes. “You were trained to move your stimulus at least four seconds for the test for the onset of nystagmus prior to 45 degrees?” A: Yes. “You did not do that?” A: No. “You were trained to hold your stimulus at least four seconds for checking for nystagmus at maximum deviation?” A: Yes. “You did not do that?” A: No.

Have your Virginia criminal lawyer control the VE playing and pause buttons

If you are in a courtroom that enables hooking up your lawyer’s laptop computer to the court’s video monitors, it is ideal for your Virginia criminal lawyer to take that playback approach, so that your attorney can pause, start, stop, fast forward and rewind the VE playing at will. In the foregoing hearing that successfully excluded HGN evidence before the jury, I presented myself as a thoroughly fair cross examiner by handing the investigating/ arresting officer a complete copy of his police report and notes, and offering to replay and backup and fast forward the VE as often as he wanted. By the time evidence was finished, the prosecutor was left to argue that the VE did not necessarily show all that happened, but by then his LEO witness had already admitted to the key foregoing nuggets that formed the basis for me to convince the judge to exclude HGN evidence from the jury.

Winning an in limine motion does not necessarily guarantee a win. Make sure that your Virginia criminal lawyer will pursue a full court press for your defense

As a Fairfax criminal lawyer, I know that it is folly to proceed to court wishing that one or another argument or motion carries the day — whether with video evidence or otherwise — rather than proceeding with a full court press and with over-preparing for court and overcovering risk. Winning as much victory in Virginia criminal court as possible is not about wishful thinking, incantations, nor relying on the prosecution to be insufficiently prepared (or for the prosecution to offer a sweetheart deal) but is about your lawyer’s busting their butt for you, and your working closely as a team with your Virginia criminal defense attorney.

Fairfax criminal lawyer Jonathan Katz’s watchword is “exploit”, to exploit every beneficial opportunity and to exploit every beneficial defense. Such exploitation and preparation must long before your lawyer ever steps foot in the trial courtroom. Therefore, do yourself a favor by investing your time soon after your Virginia DUI, felony or misdemeanor arrest to find the best possible lawyer for you. When you meet with Jon Katz, you will feel more confident and knowledgeable about your defenses. For your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution, call us at 703-383-1100, email info@BeatTheProsecution.com , or text 571-406-7268.