Virginia Video Evidence - Fairfax Criminal Lawyer Fights It
Virginia video evidence can be your worst enemy - Fairfax criminal lawyer says be ready to fight it
Virginia video (VV) evidence can have both damning and helpful evidence and information. As a Fairfax criminal lawyer, I obtain as soon as possible police bodycam and dashcam footage and other relevant VV and film material from the commonwealth's attorney's / prosecutor's office, and, as needed, produce and serve my own records subpoenas / subpoenas duces tecum to obtain the VV and documentary material that I need to pursue the best possible defense for my Virginia criminal defense clients. Beware when judges let VV evidence speak for itself, refuse to bar its admission on the foundational argument about the absence of any witness who saw in real time all the events depicted in the VV , and say that such arguments simply go to the weight rather than the admissibility of the evidence.
What if the witness who found the drugs in my case does not appear for trial but her Virginia Video bodycam shows what she found?
Tara Ann Baez got found guilty of the Virginia Class 5 felony of possessing cocaine, as Schedule II controlled substance. Baez v. Commonwealth of Virginia, ___ Va. App. ___ (Nov. 14, 2023). The judge granted her request to be sentenced pursuant to Virginia Code § 19.2-251, whereby a first-time drug possession count that gets a guilty finding instead gets dismissed, ultimately, absent a judicial finding of a violation of probation during the waiting period for a dismissal. Ms. Baez then appealed, where one of her arguments was that the police officer (Officer File) who found the cocaine base / crack cocaine base in her car was not even present at the trial and was the only one who first saw the cocaine, meaning that absent the testimony of Officer File nor admission of her Virginia video bodycam footage into evidence, chain of custody would not have been able to be proven to show that the cocaine analyzed at the Virginia Department of Forensic Science (DFS) lab was the same as the alleged crack recovered from Baez'e car.
How can any Virginia police officer other than the bodycam wearer authenticate the related video footage?
How indeed can Virginia video come into evidence at a criminal trial without authentication from the person experiencing the situation in real time? Baez answers: "[T]o the extent that there were portions of the footage that Officer Massie did not personally observe, we find nothing in our case law to suggest that a witness must personally observe every detail of a proffered [VV] in order to authenticate it. The portions of the [VV] that Officer Massie could verify as accurate and representative of the events during the evening of the traffic stop served to establish the authenticity of the entire recording... Ultimately, whether a witness observed enough of the scene depicted on a [VV] to properly authenticate it under Rule 2:901 is a determination within 'the sound discretion of the trial court and will be disturbed only upon a showing of a clear abuse of discretion.'” Baez (citation omitted).
Could chain of custody have been proven against Baez without the seizing police officer's testimony or presentation of her bodycam footage?
With nobody else seeing the crack cocaine being seized from Baez's car other than the non-appearing police officer File, the prosecutor's only other hope to prove chain of custody from the point of seizure to the point of Virginia Department of Forensic Science (DFS) drug lab testing was to get the cocaine seizure part of Officer File's Virginia video bodycam into evidence, which the trial court and Baez allowed, with Baez saying “'When the Commonwealth seeks to introduce evidence regarding the chemical properties of an item, the burden is upon the Commonwealth to show with reasonable certainty that there has been no alteration or substitution of the item.'... 'However, this burden is not absolute, and the Commonwealth is not required "to exclude every conceivable possibility of substitution, alteration, or tampering."'... '[A] chain of custody is properly established when the Commonwealth’s evidence affords reasonable assurance that the exhibits at trial are the same and in the same condition as they were when first obtained.' 'Although "[t]he Commonwealth is not required 'to exclude every conceivable possibility of substitution, alteration or tampering,"' it must be able to "account for every 'vital link in the chain of possession.'"'" Baez (citations omitted).
What should I do if busted for an alleged drug crime?
The failed drug wars keep nabbing alleged offenders with a vengeance and often risk very severe incarceration if convicted. Timely obtain a qualified Virginia drug defense lawyer to challenge your prosecution and all evidence against you, including any Virginia video. Fairfax criminal lawyer Jonathan Katz has successfully defended hundreds of drug defendants. Find out the great work Jon Katz can do for you through a free confidential in-person consultation with Jon Katz about your court-pending prosecution. Call Jon's staff at 703-383-1100 for your initial consultation.
Fairfax criminal lawyer Jon Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Learn the great things Jon can do for your defense through your free in-person confidential meeting with Jon about your court-pending prosecution. Call 703-383-1100.