Defending Against Assault

You may be reading this because you just got out of jail, you may have a warrant for your arrest, you may be reading this because your friend or loved one was just arrested, or you may be reading this as a victim of an assault and you want to know what’s going to happen!

For the person who just got arrested and for the friend or loved one of someone who was just arrested, here is what you should know:

1. There is absolutely nothing you can do about being arrested.

When you get charged with assault (N.J.S.A. 2C:12-1) chances are you were arrested because of the extraordinarily broad mandatory protocols of the police. Police protocol calls for a mandatory arrest when the victim exhibits signs of injury. The word exhibit is “liberally construed to mean any indication that a victim has suffered bodily injury.”[1] This means that you could have gotten into a scuffle, and in defending yourself, the “victim” has a small scrape or scratch on them. If the police come, and they see that small scrape or scratch, you will be arrested.

2. Your defense varies based on the degree of the assault.

An affirmative defense to assault is self-defense (N.J. Stat. § 2C:3-4). Self-defense will excuse unlawful conduct. If you can demonstrate that you reasonably believed you were in immediate danger of being harmed or unlawfully touched, you may be able to argue for self-defense. In New Jersey, the use of force must be proportional to the perceived threat, and you must have reasonably believed that force was necessary to protect yourself.

Self-defense is unavailable where, for example, in a second-degree aggravated assault a weapon is recklessly used, self-defense is not meant to protect against reckless conduct. Speaking plainly, self-defense is limited to the intentional or purposeful use of force.  Under our criminal code, force is broken up between non-deadly use and deadly use under N.J. Stat. § 2C:3-4. The statute also carefully delineates between the use of force against a lawful arrest, which often is the reason many people are charged with an aggravated assault under N.J.S.A. 2C:12-1(b)(5)(a).

Defense of others similarly applies to self-defense under N.J. Stat. § 2C:3-5. This section is careful to provide that if there is an opportunity to retreat and get other means to intervene, then there is no defense. As you can imagine, a third-party circumstance may be much different.

For the person who is a victim of an assault and wants to know what is going to happen next

1. You are going to be called as a witness to testify against the person who committed the assault.

Seeing it through is one of the most difficult parts of being a victim. Not only does the assault mean that you were likely harmed physically or threatened with a gun, but you also have to have the courage to follow through. Now statistically we know that trials in the Superior Court – Criminal Division are few and far between compared to the number of charges. Seeking a restraining order in family court trials is much more common than in municipal court trials.  In the latter context, your presence will be required much faster to assess whether the State will proceed to trial.

        You may be wondering if you ask the state to drop the case against the offender, will this mean the case will go away? No, the state has the discretion to proceed with the case, no matter how detrimental the adjudication of the case is to your family or relationship with the other person. While this is draconian, depending on the gravity of the charge and if a pattern exists, the State may be right to continue down the path. It is normally the hope of everyone involved to be rest assured the behavior will never happen again to anyone again.

If you or someone you know has additional questions, please do not hesitate to contact A. Brown Esq. LLC for a free consultation – 973-281-2388.