The best defense for assault is any defense that prevents prosecutors from establishing guilt beyond any reasonable doubt. As outlined below, the best defense could be a procedural, substantive, or affirmative defense.
These defenses are available in all three types of assault cases. ABC (Assault By Contact) is a harmful or offensive touch. Simple assault is an assault that causes bodily injury. Aggravated assault is an assault against a person in a protected class, like a police officer, involves a weapon, like a baseball bat, or causes serious injury. All three offenses have severe direct consequences, such as extended court supervision, and indirect consequences, such as immigration effects.
Only an experienced Marietta criminal defense lawyer evaluates an assault and determines the best possible defense. Attorneys who plan their work and work their plans usually obtain results that exceed the client’s expectations.
Procedural Defense
Fifth Amendment violations, usually illegal interrogations and illegal lineups, are the most common procedural defenses in assault cases.
Most people know they have a right to remain silent during questioning. But most people don’t know that this right kicks in when custodial interrogation begins. In plain English, custodial interrogation is asking questions when the subject doesn’t reasonably feel free to leave. In the context of an assault interview, most people don’t feel free to leave when officers arrive on the scene.
Assault interviews are part of most disturbance call assault cases. When officers arrive on the scene, they interview the combatants separately to determine “who started it.” They hardly ever administer Miranda warnings prior to these interviews, so the subjects are more at ease.
This failure means that any information gleaned during that illegal interview, including “who started it,” is fruit from a poisonous tree and therefore inadmissible in court.
The Fifth Amendment also gives defendants the right to refuse to pose for pictures or appear in lineups. Even if defendants are properly warned and waive their rights, investigative lineups are often unreliable.
Most witnesses feel like they must pick someone out of a lineup. Additionally, the extreme stress of an assault affects their memory. This combination usually means a witness chooses someone who looks like the suspect, not the suspect.
Substantive Defense
Quite simply, a substantive defense is the prosecutor’s inability to prove guilt beyond any reasonable doubt. Witness reliability and availability are the two biggest issues in this area.
We mentioned some witness reliability issues above. Furthermore, many alleged victims were drinking at the time of the incident. Alcohol affects memory and recall abilities. Furthermore, many alleged victims are potentially biased. That’s especially true in a domestic battery case that involves a parallel civil court proceeding, such as a child custody dispute.
On a related note, many alleged victims tell the same story so many times that the details become blurred. That’s especially true if they post on social media and attend counselling sessions as well as speak to investigators.
Because the burden of proof is very high in these cases, witness credibility is very fragile. It’s difficult to build and easy to lose.
Sometimes, alleged victims are biased in favor of defendants, instead of against them. These individuals often lose interest in the case as the long criminal law process lurches forward. Prosecutors can subpoena uncooperative witnesses and force them to testify against their will, if they reside within 150 miles of the courthouse. But prosecutors rarely exercise this power. If the alleged victim shows little interest in the case, prosecutors usually aren’t very interested either.
On a related note, all witnesses, including alleged assault victims, must have some independent recollection of the event. If they cannot remember any details that aren’t in the police report, a judge may disqualify the witness. Typically, no witness means no case, although a hearsay exception may be available in some situations.
Additional substantive defenses in aggravated assault matters include lack of official capacity and inability to prove serious injury.
We mentioned that police officers are in a protected class. Usually, this protection only applies if they were carrying out their official duties at the time. Moonlighting cops are not “police officers” for purposes of the aggravated assault law.
Moreover, in a serious injury aggravated assault case, the state must usually introduce medical bills. Assume David beat up Richard and sent him to the ER. Richard gets tired of waiting and leaves before seeing a physician. Without documentary evidence, the extent of Richard’s serious injuries is almost impossible to prove.
Affirmative Defense
Coercion, self-defense, and consent are the most common affirmative defenses in misdemeanor and felony assault matters.
Person A coerces Person B to commit a crime if Person B reasonably believes Person A will retaliate against Person B if s/he doesn’t go through with it. Coercion is often an effective defense in gang initiation-based assault matters. That retaliation could be against the defendant or someone the defendant knows.
Reasonable belief is usually the key to this defense. The defendant must reasonably believe Person A has the capacity to make good on his/her threat. That reasonable belief may be correct or incorrect.
Reasonableness is also the core of self-defense. Essentially, self-defense is a proportional response to an immediate threat to person, a third person, or personal property. Georgia is a castle doctrine state (a man’s home is his castle). Therefore, self-defense is easier for a Marietta criminal defense lawyer to prove.
Although difficult to prove, consent could be a defense in certain cases. An off-the-rails brawl at an athletic contest is a good example. Usually, participants consent to on-the-field violence that’s reasonably related to the game, such as a hard fight after a hard foul. Consent could also be a defense in some sexual battery cases.
These affirmative defenses don’t have to be strong enough to “beat” the charges. Instead, an affirmative defense is usually a pretrial negotiation bargaining chip. Rather than deal with a complex affirmative defense at trial, many prosecutors would rather take the easy way out and agree to a favorable plea deal.
Several defenses are available in assault cases. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
