AuthorTimothy E. Zerillo
Assault (or battery as the crime is called in many jurisdictions) comes in all shapes and sizes. These
range from a bloody beating to merely offensive bodily contact without injuries. The domestic assault
has taken on special signif‌icance in the criminal defender’s world. Usually misdemeanors, the conse-
quences of these assaults are more signif‌icant than one might expect. This chapter is designed to show
you some ways to handle the various factual scenarios you might encounter.
A. Elements and Common Scenarios
§3:01 The Elements
§3:02 The Bar Fight
§3:03 The Self Defense Fight
B. Strategies and Tactics
§3:10 Interviewing Your Client
§3:11 Self Defense
§3:12 Defense of Others
§3:13 Defense of Premises
§3:14 Lack of Injuries to Victim
§3:15 Therapeutic Issues
C. Trial Themes
§3:20 Mutual Combatants
§3:21 Defense of Others
§3:22 Size of Victim
§3:23 Hotheaded Victim
D. Trial
§3:30 Jury Selection
§3:31 Sample Opening Statement—Mutual Combatants
§3:32 Sample Cross-Examination of Disinterested Witness to Fight
§3:33 Sample Cross-Examination of Arresting Off‌icer
§3:34 Sample Closing Argument
A. Elements and Common Scenarios
§3:40 The Elements
§3:41 The Drunken Night Out
§3:42 The Child Custody Dispute
B. Strategies and Tactics
§3:50 Client Interview
§3:51 Consider Firearms
Defending Specif‌ic Crimes 3-2
§3:52 Making the Victim Your Witness
§3:53 Are They Domestic Partners?
§3:54 Therapeutic Intervention
§3:55 Use the Restraining Order Hearing to Your Benef‌it
§3:56 Allegations of Long-Time Spousal Abuse
§3:57 The Strangulation Allegation
C. Bail and No Contact Order Considerations
§3:60 Bail Modif‌ication Tactics
§3:61 Motions to Amend Bail
§3:62 FORM 3-10 Motion to Amend Bail
§3:63 Sample Bail Modif‌ication Argument
D. Confrontation Clause Issues
§3:70 In Domestic Violence Cases
§3:71 The Crawford Case
§3:72 The Davis and Hammon Cases
§3:73 The Bryant Case
E. Investigation and Evidence Checklist
§3:80 Caution: Avoid Victim Tampering
§3:81 Ethical Rules—Recording Victim
§3:82 Social Media
§3:83 Victim’s Circle
F. Trial Themes
§3:90 Good Relationship Gone Bad
§3:91 Victim Is Fabricating Injuries
G. Trial
1. Jury Selec tion
§3:100 Key Questions for Prospective Jurors
§3:101 FORM 3-20 Defendant’s Proposed Voir Dire
2. Opening Statement
§3:110 My Approach
§3:111 Sample Opening Statement
3. Cross-Examination of Alleged Domestic Assault Victim
§3:120 Key Points
§3:121 Cooperation with Prosecutor
§3:122 Importance of Telling the Truth
§3:123 Inconsistencies in Victim’s Story
§3:124 Failure to Seek Medical Care
4. Cross-Examination of Arresting Off‌icer in Bar Fight Case
§3:130 Key Points
§3:131 Accuracy of Off‌icer’s Reports
§3:132 Memor y Better When Report Written
§3:133 Both the Defendant and Victim Were Drunk
§3:134 Source of Victim’s Injuries Uncertain
§3:135 Alternate Suspects
§3:136 Lack of Witnesses
5. Closing Argument
§3:150 My Approach
§3:151 Sample Closing Argument
3-3 Assault/Battery
A. Elements and Common Scenarios
§3:160 The Elements
§3:161 The Betrayed Husband/Boyfriend
§3:162 Assault with a Deadly Weapon
§3:163 Assault on an Off‌icer
B. Strategies and Tactics
§3:170 Where Was the Assault?
§3:171 Lack of Serious Injur y to Victim to Warrant Felony
§3:172 Therapeutic Issues
§3:173 Experts
C. Trial Themes
§3:180 Think Outside the Box
§3:181 Defense of Others—Thwarting a Rape?
D. Trial
§3:190 Sample Opening Statement
§3:191 Sample Cross-Examination of Alleged Victim—The Cheating Wife
§3:192 Sample Cross-Examination of Off‌icer Who Took the Report
§3:193 Sample Closing Argument

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