Justice Matters with Bryan Porter: Legal misconceptions from TV

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Commonwealth's Attorney for the City of Alexandria Bryan Porter in front of the courthouse (Photo Credit: Missy Schrott)
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By Bryan Porter

There is a plethora of television shows that purport to show how crimes are investigated and tried. One huge problem exists with these procedurals: they always get it wrong.

In this article, I aim to dispel some common misperceptions about how police and prosecutors operate. First, let’s start with this proposition: in the common parlance, the phrase “federal offense” means a big case. From this, most citizens would infer that most serious cases are handled by federal law enforcement and that, if the feds want to adopt a case, they can easily require state and local authorities to dismiss their prosecutions. 

This is an inaccurate picture. First, with the exception of national security cases, which had an obvious federal connection, the majority of violent crimes are investigated and prosecuted by state and local agencies. Almost all murders are prosecuted at the state level as well as most robberies, rapes and burglaries.

Furthermore, the federal government and the Commonwealth of Virginia are different political entities, each with its own plenary criminal authority. The usual term used in this context is “separate sovereigns,” meaning that theoretically, a criminal can be charged and prosecuted for a crime at both the federal and state level, and without running afoul of the double jeopardy clause of the Constitution. Nor can the federal authorities usurp the state’s sovereignty by forcing a local prosecutor to give up a charged case.

In the real world, I am happy to report that we work closely with our federal brethren. If a crime catches the attention of a federal agency, we will discuss the matter with them and decide who is in a better position to handle the matter. Care is given to not duplicate efforts and, in my experience, both state and federal authorities remember that our overarching goal is to maintain the safety of the public.

I would also note that in Virginia, the Attorney General’s office has little original criminal jurisdiction. Furthermore, local prosecutors do not work for the Attorney General. However, the AG’s office is usually willing to provide support and assistance if requested to do so by localities.

The litany of misconceptions caused by unrealistic TV shows is lengthy. On television, detectives will use the words “robbery” and “burglary” as synonyms. Any real gumshoe knows that you rob a person and burglarize a home. Robbery is defined as the theft of property from another person, accomplished by force or threats. Common law burglary is breaking into and entering the home of another, at night, and with the intent to commit a crime therein.

There are two classes of theft in Virginia: Grand Larceny and Petit Larceny. The charge is determined by the value of the goods stolen. For almost three decades, the threshold was stuck at $200, however, I am happy to report that the General Assembly increased that limit to $500 in the past session. The change goes into effect July 1.

Grand Larceny Auto, or GLA, is simply the theft of a car valued at more than $500. It is theoretically possible to have a PLA – petit larceny auto – but it would require a vehicle like the 1976 Buick Century I drove in high school. That car had no heat, so I kept two blankets in it for the winter months.

Likewise, “jail” and “prison” are not synonymous: instead, a jail is a local facility in which people serve short periods of 12 months or less, while a prison is a state correctional facility in which convicts serve more lengthy sentences. 

Most frustrating for prosecutors, however, is the TV-induced misperception that incriminating forensic evidence like fingerprints or DNA is easily recovered from crime scenes and should be located in almost any investigation. This phenomenon, known as the “CSI Effect,” is prevalent among prospective jurors and is a real issue that prosecutors have to address.

More on the CSI Effect in the near future.

The writer is the Commonwealth’s Attorney for Alexandria.

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