Defending Assault and Battery Charges Defending Assault and Battery Charges
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On-Demand Seminars
Defending Assault and Battery Charges
Stephen LaCommare, Jr., The Kizer Law Firm; Heather K. Nalley, Gentry Nalley PLLC; Philip Matthew Jacques, Macomb County Prosecutor's Office
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I.   Summary

§1.1   Representing a client charged with assault and battery in a nondomestic situation can be challenging. The client is often emotional and upset. These cases usually involve friends, co-workers, fights over boyfriends/girlfriends, incidents where the parties are intoxicated, and the ever increasing road rage incidents. Finding out what really happened is a challenge from the attorney’s perspective, and patience is a must.

II.   Interview the Client

§1.2   As with any criminal defense representation, your first meeting with your client is incredibly important. This is your first opportunity to both gather critical information as well as establish a cooperative relationship. You will develop your own process for this meeting over time, but to get you started, Jill Paperno provides a comprehensive list of considerations in her blog post: Practice Tips: The First Interview With a New Client.

III.   Evaluate Evidence and Raise Defenses

A. Initial Evaluation

§1.3   Generally, after the client intake, you will be left with an idea of the possible evidence and defenses in the case. But you may be surprised after you review the discovery materials, because the witness statements and other discovery materials may greatly differ from your client’s version of events. That is why you should reserve judgment on the strength of the evidence in the case and defenses until after you’ve reviewed all of the evidence.

B. Possible Evidence

§1.4   As possible discovery in your case, you’re going to have a police report, with witness statements and maybe even your client’s statement. You may have a video of the incident, photographs of the alleged injuries, photographs of the scene, or a recording of a 911 call. You must compare the details of every piece of discovery against the other pieces. They may show helpful inconsistencies. The absence of photographs of alleged injuries and a 911 call can be very helpful in defending the case.

C. Incriminating Statements

§1.5   If your client made a statement, you must thoroughly review it and compare it to other witness statements and other evidence in the case. Your client’s statement may be harmful, because it may include incriminating details or it may be inconsistent with a possible defense. Obviously, such a statement is admissible against your client. If the statement is harmful and it was made to the police, you must consider pursuing pretrial motions to have it suppressed, like a motion to suppress based upon a Miranda violation. If you are successful in getting a statement or part of a statement suppressed, you may greatly improve your chances of success at trial and it may help you negotiate a resolution. If the alleged statement wasn’t made to the police, but was made to another witness, you will want to consider that person’s credibility, their bias or motivation to lie.

D. Conduct Your Own Investigation

§1.6   Police reports often contain incorrect information, including incorrect details in witness statements, because the officer doesn’t understand the witness or they try to summarize and condense the statement. This is why you shouldn’t accept the witness statements in police reports at face value. Typically, the police report will contain each witness’ contact information. If you have any questions about a witness’ statement, you should give them a call or have a private investigator give them a call.

E. Self-Defense

§1.7   Under Michigan law, a person is reasonably permitted to use nondeadly force to defend himself or another person from the imminent unlawful use of force by another. Words alone do not justify the use of force. The reasonableness of the client’s use of force is evaluated depending upon the amount of force used, the type of force, and whether it was directed at stopping the assault. If the client’s use of force was after the threat of an assault stopped, his actions were not in self-defense. At trial, after there is some evidence of self-defense introduced, the prosecutor has the burden of proving that the defendant did not act in self-defense.

F. Consent or Mutual Combat

§1.8   Consent to the contact or mutual combat is a defense as well. One of the most common examples of mutual combat is one person challenging the other person to a fight. Obviously, the circumstances must exist where it can be inferred that the other participant at least implicitly consented to the contact. The client’s conduct must not exceed the scope of the consented contact.

G. Accident

§1.9   Because an intentional act is a necessary element of the offense, accident is always a possible defense. An accident can be that the client did not intend to do the particular act. For example, a person who loses their balance and stumbles into someone in a crowded bar didn’t commit an assault or battery, because the act of stumbling was unintentional. Additionally, an accident can be an intended act with an unintended outcome. For example, throwing a football to a friend and the football accidentally hitting a bystander is not an assault or battery, because while the act of throwing the football was intentional, hitting the bystander was unintended, and it was not done with the intention of creating fear of a battery. In both scenarios, the actor lacked the necessary intent to commit the offense.

H. Accept Facts Beyond Change

§1.10   After you have a chance to look at all of the evidence in your case, you will recognize that some of the evidence is stronger than other portions, and some of it will be so strong that it cannot be realistically disputed. I like to call those details facts beyond change. I accept them as facts in the case and build my client’s defense around those facts.

I. Character Evidence

§1.11   MRE 405(a) permits character evidence in the form of testimony as to reputation or opinion. You should consider if there is a credible witness who can offer testimony that your client has a reputation for being a nonviolent person or is in their opinion a nonviolent person.

J. Know Your Audience

§1.12   It’s important to keep in mind who will be ultimately hearing this evidence at a possible trial or hearing. Some judges will be more moved by a particular piece of evidence than other judges. The same is true for juries. This is why it’s important to have some familiarity with the judge and jurisdiction before making any meaningful decisions on a case. What is effective in Wayne County may not be effective in Lenawee County.

K. Advice

§1.13   The ultimate decision on whether to proceed to trial or pursue a negotiated resolution is the client’s. But as the client’s attorney, it is your duty to give your honest evaluation of the evidence. I always think it is best to give clients my evaluation of the evidence and advice on how they should proceed but to emphasize that the decision is up to them. You do your client a disservice by sugar coating your opinion.

IV.   Negotiate Plea Deals

A. The Client’s Goals

§1.14   After your initial consultation with the client, you should have a good idea of the client’s goals for representation. Some clients will want to defeat the case at all costs regardless of the circumstances, and other clients will want to resolve it with as little impact on their future possible. One of the most difficult aspects of representation is managing the client’s goals and expectations. If the facts of the case don’t present a strong likelihood of success at trial or the client does not want to litigate the case, you should explore the possibility of a negotiated resolution. You can negotiate with the prosecuting attorney and/or with the judge.

B. Holmes Youthful Trainee Act or Delayed Sentence

§1.15   The Holmes Youthful Trainee Act (HYTA) permits the defendant the opportunity to avoid a conviction and ultimately have the case dismissed and be designated nonpublic. HYTA is only available for people who are at least 17 and not yet 24 years old who have not previously been convicted of a criminal offense. HYTA requires that a person plead guilty. It is not available after being found guilty at trial. Generally, for a misdemeanor offense, a disposition under HYTA will include a period of probation. If a person is not eligible for HYTA, but is considering entering a plea, they may be able to receive a delayed sentence under MCL 771.1. A delayed sentence is available after a guilty verdict or plea if the court determines that the defendant is not likely again to engage in an offensive or criminal course of conduct and that the public good does not require that the defendant suffer the penalty imposed by law. If a delayed sentence is granted, the court may place the defendant on probation and delay sentencing for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency.

C. Negotiations with the Prosecuting Attorney

§1.16   A common negotiated resolution with the prosecuting attorney is a reduction to a lesser charge. If there are multiple charges, you may secure an offer for a dismissal of some charges in exchange for a guilty plea to other charges. For an assault and battery charge, a common plea reduction is disorderly conduct. Some prosecuting attorneys may even be willing to reduce the charge to a civil infraction. Many prosecuting attorneys have office policies on how they handle assault cases. Generally speaking, it is better to negotiate an assault case with a local city or township attorney rather than an elected county prosecuting attorney, because they have fewer policies. Additionally, they may be able to reduce the charge to a civil infraction under a local ordinance. Sometimes prosecuting attorneys are unwilling to reduce the charge for a variety of reasons. But they may be willing to agree to a disposition under HYTA or a delayed sentence, or they may be willing to agree not to object to such a disposition.

D. Cobbs Agreement

§1.17   A Cobbs agreement is an agreement between the judge and the defendant, whereby the defendant enters a guilty or no contest plea in exchange for an agreement from the judge, pursuant to People v Cobbs, 443 Mich 276, 505 NW2d 208 (1993). If the defendant enters a plea pursuant to a Cobbs agreement and the judge does not want to follow the agreement at sentencing, the defendant has the right to withdraw his plea and proceed to trial, assuming the defendant has complied with his or her bond conditions. It is important to know how a particular judge handles these agreements. Some judges will gladly enter these agreements. Other judges won’t enter these agreements under any circumstances. Other judges don’t like to enter these agreements, but instead will give an indication of their likely sentence if they were to enter a plea. If a judge is willing to enter a Cobbs agreement, the agreement may include HYTA, no jail time, a specific jail term, a cap on the jail term, a specific fine, a period of probation, or terms of probation.

E. Important Factors for Negotiations

§1.18   There are many factors that will influence plea negotiations or discussions with the judge. One of the biggest factors is the complainant’s wishes. Many prosecutors’ offices won’t make a plea offer on an assault case, unless they have the complainant’s approval. However, if the complainant is on board to resolve the case in a particular fashion, that may persuade the prosecuting attorney to enter the agreement. Agreeing to pay a specific amount of restitution or actually tendering a restitution payment in court may be equally significant. Agreeing to a restitution amount or paying restitution up front avoids the possibility of a restitution hearing and the complainant not being fully compensated for their loss. A client’s performance on bond is also important, because the defendant who is totally compliant while on bond conditions is much more deserving of a favorable negotiation than a defendant who is not compliant. From the client’s perspective, if they have no prior criminal history or a minimal prior history and they are convicted, it is important that they resolve the case in a manner that permits them the opportunity to have the conviction set aside in the future under MCL 780.621.

V.   Take Case to Trial

§1.19   Assault and battery is a 93 day misdemeanor. MCL 750.81. When preparing for any trial, the first places to consult are the Michigan Criminal Jury Instructions, specifically M Crim JI 17.2 and the binding caselaw. People v Johnson, 407 Mich 196, 284 NW2d 718 (1979); Tinkler v Richter, 295 Mich 396, 295 NW 201 (1940); and People v Lakeman, 135 Mich App 235, 353 NW2d 493 (1984). Although you have carefully read your police reports and other discovery, do so now with an eye on testimony and evidentiary issues. Review the Michigan Rules of Evidence, preparing citations to cases supporting or discussing the anticipated objections. Prepare your trial notebook, which should contain everything you can anticipate needing (e.g., the complaint, police reports, pleadings, clean copies of case law supporting or discussing evidentiary issues, copies of subpoenas and proofs of service).

When preparing the presentation of the defense, demonstrative evidence, where applicable, is helpful in explaining to juries the context and a situation they are hearing about in bits and pieces: maps, pictures, videos, call records, text messages, and diagrams. Keep in mind witnesses’ physical viewpoints and obstructions. Assault and battery cases often involve family members, friends, or are alcohol fueled. Understanding the context and being able to explain that to the jury can be important in assisting the jury in evaluating testimony and credibility.

Extra resources such as a private investigator or a polygraph can also be important in assault and battery cases. While a polygraph result is inadmissible evidence, a good polygraph technician will assist the defense in determining the type of witness a defendant would make (easily shaken by questions, able to maintain composure, etc.). A private investigator can follow up on interviews, leads, and the compilation of demonstrative evidence to provide greater context to the facts or background for where the dispute initiated. The Internet makes background checks increasingly helpful for finding connections and information on witnesses.

And last, consider the correct technological resources. Each county has differing levels of technological access and availability. Your presentation is only as good as the availability to use it. Most courts will allow access to the courtroom in advance to set up the technology and do a run through. But in the end, you must be able to use it yourself.