A criminal lawyer will need to review the warrant application used in any lewd or lascivious battery case to make sure the judge acted correctly when he/she granted it. Additionally, a criminal lawyer will need to verify that the police did not overstep the bounds and limitations set forth in the warrant. For example, if the warrant limited the search to an upstairs apartment, police would not be allowed to search a cell phone found in a car parked in the driveway.
Contrary to public misconception, a search warrant is not a hall pass that gives you permission to roam around wherever you want. Rather, a search warrant is very limited in scope and only permits police to search those areas that are specifically mentioned in the warrant.
When videos and pictures are lawfully obtained by police, there are still a number of other hurdles that the prosecution must overcome before such evidence may be admitted at trial. First of all, the evidence in question must be disclosed to the defense.
When evidence is not disclosed to the defense the penalties can be very severe for the prosecution. For this reason, a criminal lawyer must pay close attention during trial to make sure that any evidence used by the prosecution, including witnesses, were properly disclosed well in advance of trial.
When the prosecution fails to properly disclose evidence, the trial judge must conduct a special hearing called a Richardson Hearing. When this occurs, the judge must determine if the failure to disclose was willful or inadvertent and then determine if there is an appropriate remedy. Ultimately, the judge must decide on a course of action.
The judge may decide to exclude the evidence, grant a continuance so that the defense can investigate the evidence, or order a mistrial.
Assuming the prosecution has properly disclosed the existence of the videos/pictures, they must then present witness testimony to admit the videos/pictures. The witness who is used must be someone who is familiar with the evidence and who can authenticate the evidence.
When a witness authenticates evidence, he/she must explain how they are familiar with the evidence and must establish that the evidence is in the same or similar condition in court as it was when they were familiar with it. This testimony is important because the prosecution must prove that the video/picture has not been altered or tampered with.
A criminal attorney must pay close attention during this testimony to make sure that the witness is able to authenticate the videos/pictures before they are offered into evidence by the prosecution. If the witness fails to properly authenticate the videos/pictures, a criminal lawyer can object to their admission into evidence. If the criminal lawyer is correct, the judge will sustain the objection and the videos/pictures will be excluded from evidence.
When a criminal attorney is able to have such an objection sustained, the client benefits in three ways. First, the prosecution will is unable to use the videos/pictures against the defendant. Second, the prosecution will look inept before the jury. Third, in cases where there is video or photographic evidence, prosecutors are certain to discuss these items in their opening statements. When they later fail to admit such evidence, a criminal lawyer is able to shove it down their throats by reminding the jury how the prosecution failed to live up to its promises as were made during opening statements.
Of course, once any videos or pictures have been excluded from evidence, the prosecution cannot circumvent the exclusion by having a witness testify about the content of the videos or pictures. Such testimony would make the court’s ruling meaningless. However, even if such testimony was permitted by the judge, maybe because the judge was new or inexperienced, the defense can further attack the prosecution by reminding the jury that the witness’s claims remained unverified because the video could never be authenticated.