Virginia criminal jurors may not convict a criminal defendant using inherently incredible evidence

Virginia criminal jurors get wide latitude in deciding the extent to which they will believe, accept, or reject witness testimony and other evidence presented to them. As a Fairfax criminal lawyer, I know that a jury verdict is not automatically unassailable. If a jury convicts, a Virginia criminal defense lawyer should ask the judge to have the jurors polled to ascertain whether the jury has in fact reached a unanimous verdict of conviction. Criminal defense lawyers sometimes learn information to support invalidating a conviction after contacting jurors after the trial, sometimes learning about undue juror pressure on other jurors’ verdict votes, reading/listening to news of the trial, and independent research outside the four corners of the trial evidence. Sometimes, the evidence in the courtroom is so inherently incredible so as to not permit a conviction.

What is the Virginia law on inherently incredible evidence?

As the commonwealth’s Supreme Court confirmed several years ago concerning Virginia criminal jurors: “Our oft-repeated statement regarding appellate review of witness testimony is, ‘[t]he trier of fact is the sole judge of the credibility of the witnesses, unless, as a matter of law, the testimony is inherently incredible.’… To be ‘incredible,’ testimony ‘must be either so manifestly false that reasonable men ought not to believe it, or it must be shown to be false by objects or things as to the existence and meaning of which reasonable men should not differ.'” (citations omitted). Juniper v. Commonwealth of Virginia, 271 Va. 362, 415, 626 S.E.2d 383 (2006).

What are some examples of inherently incredible evidence that will bar a Virginia criminal conviction?

Regarding Virginia criminal jurors, the Virginia Supreme Court criminal caselaw cites commonwealth civil caselaw in applying the same rule for inherently incredible evidence to both criminal and civil cases. See Cardwell v. Virginia, 209 Va. 412, 414 (1968) (citing to the inherently incredible evidence rule as addressed in the civil case of Burke v. Scott, 192 Va. 16, 23 (1951).

Consequently, the following example of inherently incredible evidence from a Virginia Supreme Court civil case also applies as an example for Virginia criminal cases: “With the uncontradicted evidence before us that the car of plaintiff was thirty-four inches on his wrong side of the road when the collision took place, and the photograph of the defendants’ car before us, which demonstrates to a mathematical certainty that the injury to it could not have been inflicted as stated by plaintiff, there is but one logical conclusion to be drawn, and that is, that the accident could not have occurred in the manner stated by the plaintiff… This demonstrates that a head-on collision could not have occurred.” Noland v. Fowler, 179 Va. 19, 24-25 (1942). 

Here is another example of inherently incredible evidence: “This case does not come to us as on a demurrer to the evidence, but if it did even that unbending rule does not require us to believe the unbelievable. If we assume that it was possible for this bus to have moved as it is claimed that it did move, we are still confronted by this unescapable fact – it did not so move, and that it did not is demonstrated by uncontroverted physical facts.” White, v. Richmond Greyhound Lines, 58 Va. 462, 469 (1932).

How should my Virginia criminal defense lawyer pounce on inherently incredible evidence?

When the Virginia assistant commonwealth’s attorney / prosecutor rests his or her evidence, that is the time for your lawyer to move to strike the evidence, whether or not the trial is with a judge only or before Virginia criminal jurors. Virginia Supreme Court Rule 3A:15(a). This motion to strike stage is ripe for arguing for an acquittal based on inherently incredible evidence. If the judge at the strike stage denies relief on such an argument, the Virginia criminal defense lawyer may file a motoin to set aside verdict not later than 21 days after entry of a final order, asserting that error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction. Va. S. Ct. R. 3A:15(b)

Does your potential criminal lawyer keep atop developments in the law?

Your Virginia criminal defense lawyer has a vital edge for your defense by fully absorbing, understanding and relevantly synthesizing the relevant statutory law, caselaw and Constitutional law involving Virginia criminal jurors and other essential aspects of the law, and by reading relevant appellate court cases, keeping abreast of updates to the statutory law and rules of criminal procedure, and by knowing how Virginia trial judges interpret and apply this law. One of the very reasons I write this blog is to keep myself sharpened in that respect, and to share what I learn with Virginia DUI and criminal defendants, and others who need this information (knowing that prosecutors learn some ideas and information here that I prefer not to share with them, but other ideas I do want prosecutors to have, for criminal defendants’ benefit).

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing your best defense against Virginia DUI, felony and misdemeanor prosecutions. Find out how by calling 703-383-1100 for your free in-person initial confidential consultation with Jon Katz about your court-pending case.