Duke of Doubt
member
- Joined
- Dec 29, 2008
- Messages
- 2,863
Hanafuda: "I was a prosecutor for 5 years and recollect quite a few domestic assault convictions in which no physical contact took place. "Assault" means action which places another in "imminent apprehension of bodily harm" - that's a pretty standard, codified definition derived from common law. So as a prosecutor, you ask the victim if he or she believed the defendant was going to strike them, and if they say yes (and the judge or jury believes it), then guilty."
My distinction was between a verbal argument and a physical assault, which in my state doesn't require actual contact, either. For example, drawing a gun may be assault, as may be swinging and missing, or even swinging short under some circumstances, or throwing an object and missing. But an objective "reasonable person" standard is employed by the finder of fact, not the subjective fears, real or imagined, of the victim.
Hanafuda: "I also pleaded plenty of 'weak' domestic cases to simple assault, because the victim recanted and refused to testify (but the police officer wouldn't drop the complaint), or because it involved parental discipline gone a little overboard, and etc. The intention of the plea agreement was to take the case out of the 'domestic violence' arena. But under this ruling, all those people who pleaded to simple assault also lose their gun rights."
Correct, and this was the rule in all but the 4th before this decision. Defense counsel in your "weak" cases where the victim recanted should have subpoenaed the recanting victim and introduced her testimony to impeach her earlier statements.
My distinction was between a verbal argument and a physical assault, which in my state doesn't require actual contact, either. For example, drawing a gun may be assault, as may be swinging and missing, or even swinging short under some circumstances, or throwing an object and missing. But an objective "reasonable person" standard is employed by the finder of fact, not the subjective fears, real or imagined, of the victim.
Hanafuda: "I also pleaded plenty of 'weak' domestic cases to simple assault, because the victim recanted and refused to testify (but the police officer wouldn't drop the complaint), or because it involved parental discipline gone a little overboard, and etc. The intention of the plea agreement was to take the case out of the 'domestic violence' arena. But under this ruling, all those people who pleaded to simple assault also lose their gun rights."
Correct, and this was the rule in all but the 4th before this decision. Defense counsel in your "weak" cases where the victim recanted should have subpoenaed the recanting victim and introduced her testimony to impeach her earlier statements.