Videos of you abound- Why do anything potentially culpable that you would not do with a police officer standing next to you?

Videos and audio recordings of our daily activities abound, for instance with cameras that dot the roads and buildings, doorbell cameras, and the video cameras ubiquitous in restaurants, retail stores and other businesses and government buildings. As a Fairfax criminal lawyer, I knew that both my image and voice would be recorded when accompanying my client to receive his misdemeanor summons at the police station lobby. Sure enough, my image and voice were on the video footage that was later provided to me by the prosecution pursuant to the evidentiary discovery order in the case. Widespread videotaping can be used to your advantage and disadvantage, depending on what has been recorded.

Is it lawful for police and civilians to record my activities?

As a criminal defendant, even if you can show unlawful recording, a question exists whether that by itself can keep the recording out of your trial. Fortunately, the Constitution’s Fourth Amendment applies to surreptitious police recording and surveillance. However, police are able to seek search warrants to permit recording, and are permitted to record you during their interactions with you. Furthermore, the Fourth Amendment does not apply to civilians, and Virginia law does not require both parties to a conversation (rather than only one) to consent to recording a conversation. (This article — and no material on this website — is not legal advice, nor does this article address defenses for those accused of unlawful recording.)

Expect that you are being recorded in police interrogation rooms

Expect that you are being recorded in police interrogation rooms, even when accompanied by your lawyer. I have watched such videos of arrested suspects and a defendant who went with his lawyer to talk with the police about allegations against him. (I will not here comment on whether the latter visit was wise in the first place, as that exceeds the scope of this article). Every step you take and every move you make outside of your home may be recorded.

Should my Virginia criminal lawyer subpoena recordings of me?

When security and other cameras may have recorded the incident related to an alleged crime, one’s Virginia criminal defense lawyer needs to consider whether to subpoena such videos and audio. Several considerations are at play, including: Many businesses only save security recordings for a limited period of time. Therefore, if incriminatory material may be on such recordings and the material gets deleted before the defense, police or prosecution get hold of it, that can be beneficial for the defense. At the same time, exculpatory material may also be on such recordings and may outweigh any incriminatory footage. Furthermore, if the prosecution or police are already going to get hold of such recordings, the sooner the defense has it, possibly the better.

Should my Virginia criminal lawyer provide me access to my incident videos?

Your Virginia criminal lawyer should provide you full access to your incident videos. If no discovery agreement or court order bars your having your own copy of the recordings, ask your attorney for a copy. If a discovery agreement or court order bars your having your own copy of the recordings, then arrange with your attorney to watch their copy. Also, watch the recordings well enough before your court date in order to discuss the material with your lawyer.

Has my prosecutor / Virginia assistant commonwealth’s attorney watched the videos of me?

Sometimes a prosecutor will admit to me that s/he has not watched the videos in my case, sometimes on the basis that the assistant commonwealth’s attorney expected that the case would be rescheduled. Whether or not the prosecutor has watched the recordings, the recordings are sometimes so lengthy and voluminous that if your lawyer has a sufficient command, organized notes, and recall about the recordings, that may give your attorney an upper hand with settlement negotiations and with courtroom advocacy. For instance, one day I obtained a reckless driving deal in a Virginia DUI prosecution, when I pointed out to the prosecutor that at least one of the key clues of impairment alleged by the police officer regarding the walk and turn test for the field sobriety (FST) testing was not a clue at all, where the police officer had not instructed nor demonstrated on that part of the test. For DWI trials, video footage repeatedly shows no slurred speech by my clients, despite police testimony to the contrary. When recordings exist, a Virginia criminal defense lawyer needs to squeeze as much defense benefit therefrom as possible.

Fairfax criminal lawyer Jonathan Katz uses his years of successful trial, negotiating, and persuasion experience to pursue your best defense against Virginia felony, misdemeanor and DUI prosecutions. For a great first step to a strong defense, secure your free in-person initial confidential consultation with Jon Katz about your court-pending prosecution, at 703-383-1100, Info@BeatTheProsecution.com and 571-406-7268.