Our firm represented an individual accused of attempting to steal merchandise from a large supermarket. Store personnel and law enforcement alleged that the customer tried to leave the store without paying, and prosecutors charged the client with misdemeanor-level theft offenses and related counts. Because the case arose in the context of heightened attention to retail theft, the prosecution pursued the matter aggressively and declined to resolve it with an early plea to a non-criminal disposition.
The prosecution’s case relied heavily on a store employee who served as the main witness. In a sworn supporting deposition signed under penalty of perjury, that witness claimed that he personally observed the client remove items from store shelves, pass all points of sale without paying, and engage in certain conduct reflected on live video. Those written statements, if credited, would have gone directly to key elements of attempted theft and related charges.
As part of our trial preparation, we compared the witness’s sworn statements with available surveillance footage and other discovery materials. The video evidence showed that the witness remained outside the store while the client was inside the store, and the witnesses first contact with the client occurred only after the client exited the building. This created a discrepancy between what the witness swore to in the supporting deposition and what the objective evidence showed.
At trial, we used this conflict to conduct a focused and aggressive cross-examination. The witness ultimately acknowledged on the stand that portions of his sworn supporting deposition were not accurate and that he had not seen all of the events he previously claimed to have witnessed from inside the store. He attempted to explain the discrepancies by stating that he had been rushed when completing the paperwork for law enforcement.
We confronted that explanation with additional objective evidence, body-worn camera footage from the responding officer. The body worn camera footage showed the officer telling the witness to take his time and document what had happened, and it captured the witness offering to bring the paperwork to the precinct later, undercutting any suggestion that he was pressured or rushed into making mistakes. This combination of video evidence and careful questioning substantially undermined the reliability of the witness’s prior statements and his trial testimony about the most serious charges.
Against this backdrop, we argued to the jury that there was a critical difference between suspicion and proof beyond a reasonable doubt, and that the inconsistencies in the main witness’s accounts, when measured against the objective video, did not support conviction on the higher-level larceny and possession counts. After deliberations, the jury returned a split verdict. While the jury found the client guilty of a lesser attempted-theft offense, they acquitted the client of the more serious larceny and possession charges that had carried the potential for up to a year in prison.
The post-trial sentencing exposure was therefore materially reduced compared with what the client faced if convicted on all original counts. Sentencing in any criminal matter is ultimately up to the court, and results vary from case to case, but this outcome illustrates how meticulous comparison of sworn statements to objective evidence, strategic use of impeachment at trial, and a measured presentation to the jury can limit a client’s exposure even where a conviction on a lesser charge occurs.
