How can I go about getting an assault charge dropped?
This is a question that is frequently asked at our firm and we get asked almost every day. Dropping an assault charge is possible but it is not simple. The real question usually comes from the victim who does not want to go forward with a prosecution. Examples include situations where a boyfriend and girlfriend get into a heated argument and one partner hits the other. The aggressor reacts impulsively & instantly does regret his/her actions. But you can still be held criminally liable for your actions.
You could get arrested for just an assault but if a police officer witnesses your actions. Or, the victim of your assault may call 911. When the police arrive they conduct an investigation. The victim states that he or she got hit or slapped and has the reddish mark on his or her check to support the claim. The police officer will question you & you may admit to hitting your partner. You might say, “Yes, I slapped him or her but I’m really sorry and it won’t ever happen again.” Even though you were sincere, everything you just said is an admission & the only evidence the police need to arrest you. Now you’re facing criminal charges in the Municipal court system & you want to know how to go about getting the assault charges expunged.
#1 – Who Filed the Charges?
The first part of getting any type of criminal charges absolved involves identifying how the complaint was initiated. In normal assault cases, complaints will take one of two forms. Either the police officer conducted an investigation & produced a complaint or a third party went to the local police department to make a complaint.
If an individual citizen makes a complaint, the police department may follow up and conduct an additional investigation. It happens but it’s not common in misdemeanor cases. However, if a private citizen comes forward with aggravated sexual assault, statutory rape, or murder allegations, you can guarantee that law enforcement will thoroughly investigate these allegations.
Currently, if the police respond to a 911 call or observe a domestic dispute or a simple assault, they will generate a criminal complaint against you. In the overwhelming majority of cases, the police will file simple assault charges. Most of the time their investigations are thorough, detailed, and complete. But once you identify who generated the complaint against you, you & your criminal defense attorney will research the evidence.
#2 – How Solid is the Evidence?
Once you & your criminal defense lawyer has decided whether yours is a State or private citizen complaint, the next step requires examining the evidence. With some very rare special cases, private citizen complaints are pretty weak as far as evidence. A private citizen’s investigative powers are extremely limited when compared to law enforcement. Much of the evidence that a private citizen produces is can and will be inadmissible. The criminal rules of evidence do not allow hearsay & irrelevant evidence to be used at trial. Private citizens tend to gather this type of evidence and any decent criminal lawyer can get it dismissed out of the trial.
Now, if you have a police or State case, be prepared for a higher quantity and or quality of the evidence. When the police conduct a simple assault investigation, they will attach all of their police reports, photographs, body-cam video, and witness statements to your simple assault file. By the nature of their job description, police officers are authorized to ask anyone who might have information regarding their investigation & to conduct legal searches for evidence.
Although police officers perform better investigations & gather superior evidence than the average citizen, they still make mistakes. You must study the evidence against you carefully to find inconsistencies in witness statements, mistakes in police stories, and missing or omitted evidence.
#3 Persuading the Prosecutor on the grounds he doesn’t have a case
Persuading the head Prosecutor to drop your assault charges is plausible, but it’s not simple. Persuasion and negotiation is the heart & soul of plea bargaining deal. We never make demands on a prosecutor. Instead, we show the weaknesses in their case.
In order to successfully persuade a Prosecutor to dismiss your case, we have to provide strong evidence that shows you are innocent. We call this “exculpatory evidence”. It means, “to show that you are without guilt”.
#4 File A Motion To Dismiss For Lack of Prosecution
If our firm cannot persuade the prosecutor to dismiss your case, we will not give up. In some cases we do not have powerful exculpatory evidence & the prosecutor has no choice but to go forward. When your case goes forward, this means that the alleged victim needs to appear in court. After all, the alleged victim is the star witness. Although a police officer can testify to what he/she observed after arriving on the scene, the police officer rarely is a witness in real-time. If the police officer’s testimony is only about the redness he observed on the alleged victim’s cheek, the prosecutor still needs to prove that you caused the redness.
When the alleged witness fails to appear in court, as your criminal lawyers we file a motion to dismiss for lack of prosecution. In uncomplicated terms, this means that we’re asking the judge to dismiss the case because the prosecutor cannot prove their case without their star witness.
Since simple assault cases are generally “he said, she said” cases, the only way that a court can find you guilty is if the alleged victim’s testimony is more credible than yours. Now, if the alleged victim never goes to court, then the prosecutor cannot go to trial without their victim. Courts are reluctant to grant these motions and will reschedule your case many times before granting such a motion.
As you can very much appreciate, in the courtroom when it comes to dropping assault charges, there is not an all purpose or multi faceted approach. If the alleged victim in your case insists on going to trial, then you must prepare for trial. You will have your day in court and we will prepare the best defense available. However, if the judge finds you guilty of simple assault in New Jersey, you face up to six months to twelve months in jail and up to a $1,500- fine. You will get a criminal conviction and you will need to wait for 5 years before you can expunge it. If getting your assault charges dropped is not a viable option, you may then consider participation in what is called a diversionary program. Depending on the charges you face, you may be eligible for the Pretrial Intervention or Conditional Dismissal program. After successfully completing either one of these programs, your charges will get dismissed & you will have avoided jail & getting a criminal record.