Everything is recorded. There are cameras on street corners and in every store. Almost every man, woman, and child has a cell phone that takes crystal clear HD video. There are dash-cams in many city’s police cars, and some D.C. police have started wearing body cameras, joining a national trend. Audio and video equipment is tiny, and relatively inexpensive. Yet despite the prevalence of recording technology and the obvious value this type of evidence has, guess how many MPD prostitution arrests I’ve been able to look at or listen to. The answer is zero. Nada. Zip. While it may be the closing days of 2014, MPD continues to conduct prostitution sting operations as if it were 1914. When I try a solicitation of prostitution case in a D.C. court, I half expect to find sawdust on the floor and a spittoon in the corner.

There are few types of D.C. criminal cases that would benefit more from audio recording evidence than solicitation of prostitution. The D.C. code makes it unlawful for any person to engage in prostitution or to solicit for prostitution. What that means is that the prosecution must prove that a defendant either offered a prostitute money for sex, or a prostitute offered sex for money. Obviously then, the outcome of a sexual solicitation trial is determined by the conversation that took place between the defendant and the undercover officer. Despite this being the primary and all-important evidence in a prostitution case, the D.C. police do not record the conversation.

So how is a case prosecuted? What evidence is presented? Well generally, your D.C. solicitation of prostitution lawyer will receive a police report of only a couple paragraphs. These paragraphs consist almost entirely of the conversation between the defendant and the undercover. Of course, the defendant doesn’t help write the report. It is based solely on the memory of the undercover officer. Why is that a problem? Well, for one thing, an undercover may make a dozen arrests on a night. That means that they’ve had a dozen conversations during which they try to lure (is this entrapment?) a defendant into offering money for sex. And that doesn’t include the conversations that don’t lead to arrests. You try talking that much, then try to remember exactly what was said. Can’t be done.

Most undercover officers in prostitution cases claim that they write their reports right after the arrest of an individual prostitute or john. While one may be skeptical of this claim, it doesn’t change anything even if it’s true. That’s because an undercover dressed like a hooker and spending her shift walking around in high heels and fishnet stockings has one goal, and one goal only: make sexual solicitation arrests. So every conversation she has is heading in one direction, and she’s going to think it went in that direction whether it actually did or not. Human memory is bad, and it gets worse when you have a preconceived notion.

The easy solution to the dubious recollection of a goal-oriented police officer is to have that officer wired with a recording device. But MPD doesn’t see this as a problem, because they would rather have their officers testify from memory, than watch cases fall apart with exculpatory audio recordings. At trial, your D.C. criminal lawyer with experience in prostitution and solicitation cases will help expose weaknesses in the government’s case. He or she will attack the memory of the testifying officer, and question the absence of a recording. After consulting with your lawyer, you may decide to tell your own version of events. Without an audio recording, the judge will have to decide guilt or innocence based on the credibility of the witnesses. Unfortunately, this is the best we can do until MPD joins us in the 21st century.

If you have been arrested and charged with solicitation of prostitution in Washington, D.C., contact Jay Mykytiuk at JPMLegal for a free consultation.