Author Archives: Canterbury Law Group

Assault is a violent crime defined differently by individual states. Read on to learn more.

Physical Assault & Attempted Insult

Some states say assault is the intentional use of force or violence against another. Under this approach, an “attempted assault” is an act that intends to physically harm the victim, but fails or falls short. In other states, assault does not involve actual physical contact, and is defined as an attempt to commit a physical attack, or as threatening actions. In these states, when the attempt succeeds, the resulting crime is a battery. Under this approach, there is no such crime as an “attempted assault.” Verbal threats are usually not enough to constitute an assault. Some action such as raising a fist or moving menacingly toward a victim usually is required.

The Victim’s Fear

Some states define assault as placing a victim in fear of violence. The standard test is if the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. 

Simple and Aggravated Assault

Simple assault involves minor injury or a limited threat of violence. Aggravated assault means the crime is more serious, as when the victim is threatened with or experiences more than minimal physical violence’

Deadly Weapon

An aggravated assault means the offender has used a deadly weapon in the commission of the crime. (In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.)

An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons. Other objects, such as rocks, bricks, can be considered a deadly weapon, as well.

Proving the Case and Possible Defenses

For a defendant to be convicted of aggravated assault, the prosecutor must prove every element of the crime.

• The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear 
• Alternatively, the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated.
• Alternatively, the victim was a member of a protected class, such as a police officer, school employee or an elderly or other vulnerable person.

Defenses

Defendants can claim they have the wrong person as well as claiming self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself. That defense may take the form of showing that a weapon actually was in the victim’s possession. It can be argued the defendant’s actions were purely accidental and that he had no criminal intent.

Penalties for Aggravated Assault

Aggravated assault is usually a felony punishable by approximately one to twenty years in prison. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation.

Sentence Enhancement

In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm of certain kinds.

Source

https://www.criminaldefenselawyer.com/crime-penalties/federal/Aggravated-Assault.htm

Aggravated assault is the attempt to cause what is termed serious bodily harm to another person with disregard for human life. The factors that can play into this include the status of the victim, the use of a weapon, the intent of the crime and the extent of injuries caused. Read on to learn more.

States classify certain assaults as aggravated as per their own state criminal codes. Other terms they may use, for example, may be “assault with  deadly weapon.” These are often considered felonies, while simple assaults are often considered to be misdemeanors. There are also multiple degrees of criminal charges for assault in many states.

Deadly Weapons

The use of a deadly weapon constitutes an aggravated assault regardless of whether the weapon harmed anyone. Physical harm is not always an ingredient of basic assault, but rather the perpetrator behaved in a way (for example threatening them) to make the victim fear for their safety. However, that threat can often make the assault be elevated to an aggravated assault charge because the fear factor is more harmful than a physical injury. Weapons may include guns as well as the way the yare used. A pocket knife may only be considered a lethal weapon if it used in way that can threaten the life of an individual.

Victim Identity

Depending on the status of the victim, some assaults may become aggravated, for example, those visited upon essential services personnel. This is especially so when the victim was performing their duty and the perpetrator was aware of the victims role.

Degree Of Injury

Serious injuries can cause an assault charges to be raised to that of an aggravated charge – usually injuries that will disfigure or maim the victim – though some states list certain injuries. Even if the injuries end up as minor, some states will say certain injuries fall under the aggravated assault statues. Sexual assaults are usually classed as their own form of assault but charges may include battery/assault, aggravated rape or assault an sexual assault.

Source: https://criminal.findlaw.com/criminal-charges/aggravated-assault.html

Being proactive is the key to reducing your prisoner sentence. Read on to learn more.

There are two phases of the criminal justice system, the trial and the sentencing. When someone is correctly convicted of charges against them, it is during the sentence process you can advocate for a less severe penalty. Known in most states as a “motion for modification of sentence” your attorney will file this document and the judge will set a hearing for you to make your case. The judge may require the prosecutor to sign of on a reduced sentence. it is paramount the motion is filed before your sentence is finalized.

Reduced Sentence?

Here are some thing that may assist in your case for a reduced sentence (note this is not an option in all states):

• Showing cooperation as a witness for the prosecutors by testifying against others
• Compassionate release if the convicted person is of great age or very poor health

What If The Law Or Facts Of My Case Change?

Many states are changing charge and sentencing procedures for small amounts of certain narcotics. If your new sentence is very different from your previous ones, you may petition to have it altered to reflect new guidelines. There is also the chance new evidence will exonerate or alter the way you were initially charged.

Was My Sentence Illegal?

This is not often the case. Sometimes the conviction may be valid and the sentence can be invalid – perhaps it is in excess of the criminal code. Another example would be if the procedures for plea bargaining have not been correctly observed or (and this is very rare) the court does not have jurisdiction.

Changing The Sentence

More often than not it is up to the discretion of the judge. That said, if you can demonstrate good behavior while you are incarcerated will help your situation as it will show you are not a threat to the community. Work with an attorney to get he best possible outcome for your case.

Source: https://www.legalmatch.com/law-library/article/how-to-reduce-your-criminal-sentence.html

Only a small number of cases ever go to trial. Often, plea cases are accepted whereby a defendant pleads guilty in return for a lesser offense. It is important trials follow rules that protect the rights of the defendant while maintaining the efficiency of the court system. Read on to learn more.

Voir Dare

Voir dare is the process of interviewing potential jurors. Both the defense and prosecution may question potential jurors for conflicts of interest or biases. A certain amount of “preemptory challenges” can be utilized to remove a potential juror without giving a reason though they are not allowed to discriminate on the grounds of gender, race, or ethnicity.

Opening Statements

Once in place, the jury will hear each side who want to offer an opening statement, intended as a summary of the case.

Prosecution Evidence and Witnesses

The state will first present their case. They have the burden of proof to meet all the elements of the alleged offenses. They may call witnesses and introduce other evidence to aid them in doing so.

Defense Evidence And Witnesses

The defendant can present evidence as well as witnesses as a rebuttal to the case made by the state. There is no obligation to testify and they cannot be called as a witness by the prosecution as the fifth amendment affords the privilege against self-incrimination. As prosecutors carry the burden of proof, the defendant does not have to prove their innocence. However, they may have a burden of proof, for example, if they use self-defense insanity or entrapment as a reason for their actions.

Closing Arguments

Each side can present closing arguments once the presentation of evidence has been completed. These arguments summarize their cases and can highlight flaws in the reasoning or evidence of the opponent.

Jury Charge

The judge will give instructions to the jury that may include questions regarding the charged offense. Both the defendant and the state can submit proposed jury charges to the court.

Jury Deliberations and Verdict

The jury will then retire for deliberation. On occasion, jurors may be sequestered but they are normally told not to discuss the case. If a unanimous verdict cannot be obtained, the judge may declare a mistrial.

Post-Trial Motions

When a guilty verdict has been entered by a jury, post-trial motions can be brought by the defendant such as an acquittal or motion for judgment or a new trial. The defendant may appeal if the post-trial motions are denied by the court.

Source: https://www.justia.com/criminal/procedure/stages-criminal-trial/