Procedural Defenses in Assault Cases
Procedural defenses, which are usually based on a violation of the Bill of Rights, are very effective in assault and other criminal cases. If prosecutors don’t have enough evidence to convict defendants, they can usually find more. However, if police officers take shortcuts during the arrest and/or investigation process, prosecutors cannot go back in time and undo that mistake. Additionally, procedural defenses erode the very foundation of a criminal prosecution,
If a procedural defense applies, the judge could throw the case out of court. Furthermore, possible procedural defenses give a Tampa criminal defense lawyer a decisive advantage in the plea negotiations that resolve most criminal cases. Frequently, rather than risk a disastrous outcome at trial, prosecutors make favorable deals during plea negotiations, such as a reduction from assault to reckless conduct. This offense, like assault, is usually a misdemeanor. However, reckless conduct has fewer collateral consequences than assault.
Illegal Law Enforcement Contact
Occasionally, police officers see assaults in progress and immediately intervene. However, much more often than not, they respond to disturbance calls, such as a complaint about a prior assault.
Many times, these tipsters are not reliable. Non-party tipsters are often tattletales who want to get the defendant in trouble, but aren’t concerned about anyone’s safety. Alleged victims often have the same motivation. They believe an assault charge will give them a leg up in an ongoing or future divorce or other family law proceeding.
Judges consider many factors to determine informant reliability. These factors include the tipster’s motivation, the specificity of the information, and the time lag between the incident and the report, if any.
Investigation Issues
Many assault investigations involve electronic evidence, such as surveillance camera video footage. Frequently, this evidence is almost as unreliable as biased informer tips, especially when the case goes to court.
At trial, prosecutors cannot simply press play. They must lay a proper foundation for such electronic testimony. Usually, this foundation includes live testimony from the camera’s owner or operator who swears, under oath, that the camera was in perfect working order, had been regularly inspected according to manufacturer specifications, and had been serviced according to any recommendations.
Illegal Interrogation
This procedural defense may be the most common one in assault cases, since almost all such matters involve voluntary or involuntary interrogations.
Frequently, when suspects learn about assault investigations, they voluntarily speak to investigators, hoping to “clear their names.” Under current law, such a voluntary appearance could compromise the defendant’s Fifth Amendment rights, unless the suspect affirmatively asserts his/her Fifth Amendment right to answer some questions and refuse to answer others.
Fifth Amendment violations are even more common during involuntary interrogations. The right to remain silent kicks in when custodial interrogation begins. Usually, suspects are in custody when they don’t feel free to leave. Most people don’t feel free to leave when police officers approach them. However, in most cases, officers don’t administer the Miranda rights (you have the right to remain silent, etc.) until much later in the arrest process.
Contact a Savvy Hillsborough County Attorney
A criminal charge is not the same thing as a criminal conviction. For a confidential consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. Virtual, home, and jail visits are available.
