As the criminal justice system goes back to full speed following coronavirus lockdowns, there might be some new wrinkles in the assault cases which dominate misdemeanor court dockets in Cobb County.
Pandemic stress increased domestic assault responses by as much as 50 percent in some areas. Most law enforcement agencies have mandatory arrest policies in these situations. If officers respond to a domestic violence call, someone immediately goes to jail. Furthermore, although such cases are rare, intentionally infecting someone with COVID-19 could be an assault. Threatening to infect a group of people could be a terroristic threat, which is a similar offense.
Such cases are certainly novel. But the more things change, the more they stay the same. The legal elements of assault are identical in all cases.
Therefore, no matter what impact coronavirus had on your case, a Marietta criminal defense lawyer can still respond to it in much the same way. A number of defenses are available, as outlined below. At least one defense at least arguably applies to every assault in Cobb County. As a result, there’s a good chance that an attorney can successfully resolve the charges, almost regardless of how bad the facts look. This successful resolution could be a complete dismissal of charges, a not-guilty trial verdict, or a plea to ABC (Assault By Contact) or another lesser included offense.
Some possible procedural defenses in an assault case usually include Fourth Amendment violations, Fifth Amendment violations, and Miranda Rights violations.
The Fourth Amendment limits police officers’ ability to detain and arrest people. These rights are especially important in assault and battery claims. In most cases, officers don’t witness assaults. Instead, they respond to disturbance or other calls for assistance.
Sometimes, the alleged victim calls 9-1-1. No one is sure how many people fabricate assault charges in order to get the defendant in trouble. But these things do happen. That’s especially true if there is an ongoing divorce or other family law proceeding.
Other times, a third party makes a call. Anonymous tips are almost always unreliable. If the tipster wasn’t willing to vouch for the information provided, there is no reason a judge should give it additional weight.
As for the Fifth Amendment, most people know they have the right to remain silent. But most people do not know how broad this right is. People give statements with their bodies and not just with their mouths. So, under the Fifth Amendment, defendants need not pose for pictures or appear in lineups.
There are similar issues concerning the Miranda Rights (you have the right to remain silent, you have the right to an attorney, etc.). Police officers must inform people of these rights when custodial interrogation begins. Let’s break these elements down.
“Custody” means the defendant does not feel free to leave. If officers knock at the door, most people don’t feel free to walk away. “Interrogation” does not necessarily mean asking questions. Skilled officers know how to subtly extract information from suspects.
Procedural defenses are often effective because the state cannot go back in time and undo the mistake. After such errors happen, any evidence officers obtain, including a confession, is usually fruit from a poisonous tree and therefore inadmissible.
Self-defense is the most common defense in assault claims. The laws vary significantly in different states, and Georgia’s laws are very broad in this area. According to Section 16-3-21, “A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.”
Proportionality is usually the key. Typically, people cannot use firearms to defend themselves from knife attacks. But that’s not always the case. If Connor McGregor rushed at me with a knife, I might reasonably believe that I needed a gun to stop him.
In some states, reasonable belief is objective. It’s objectively unreasonable to believe that physical force is an appropriate response to verbal threats. But Georgia is different. The jury decides what is reasonable. So, if the defendant was big enough, the threats were serious enough, and my Marietta criminal defense lawyer was good enough, physical force could be a reasonable response in that situation.
Georgians may also assert self-defense if they are defending property or others. The same basic elements apply.
Lack of Evidence
The state must prove every element of an offense beyond a reasonable doubt. That’s the highest standard of evidence in Georgia law. So, a lack of evidence is usually the most effective defense.
Sometimes, there is a complete lack of evidence. Assault cases usually depend on the alleged victim’s testimony. If the alleged victim is unavailable for some reason, the case might collapse. Sometimes, judges allow prosecutors to introduce the relevant part of the police report in these situations.
More frequently, the issue is a lack of credible evidence. Both the testimonial and the physical evidence is subject to credibility review.
As mentioned, some alleged victims are biased. An ongoing bitter or high-asset divorce usually casts a shadow over the alleged victim’s testimony. A Marietta criminal defense lawyer need not “prove” the witness was “lying.” Usually, alleged assault victims tell the truth as they remember it. If the jury has a reasonable doubt about the witness’ credibility, that’s enough.
Physical evidence usually involves the injury. Contrary to popular myth, serious injury is not an element in many assault cases, especially misdemeanors. Any bodily injury, such as a bruise or red spot, could support misdemeanor assault charges. However, people really do fall or bump into doors and hurt themselves. So, if the alleged victim’s injury is only slight, it’s hard for prosecutors to prove that the defendant intentionally inflicted this injury.
If the evidence is weak, Cobb County prosecutors often reduce the charges to ABC. This infraction, which is the equivalent of a speeding ticket, does not have nearly the same consequences as misdemeanor or felony assault.
If you were charged with assault, you have various legal options. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. Convenient payment plans are available.