Assault trials are a unique challenge to win for the defense, as I have learned after having defended a few hundred of them. For simple assault, sometimes they are most often winnable in a “he said-she said” testimonial situation with no witnesses and no pictures or scars of injuries on the complainant that can be tied to the alleged assault. The defenses to an assault charge are that it did not happen, the assault was committed by someone or something other than the defendant, the injury happened by an unintended or accidental action of the defendant, or the defendant was using lawful defense of himself or herself from the complainant or in the assistance of a third party (beware of the intricacies of the defense of self or others approach).

Even in the he-said/she said context, a now-late judge at a Maryland bench trial found my client guilty of assault when she testified that she stood on the sidelines as her sister was in a fight, because he was convinced that siblings will join in a fight to help their siblings. Apparently he never met Daniel or Philip Berrigan, and his conclusion about siblings certainly relied upon assumed facts not in evidence. This was a judge who rarely put the word not in front of guilty, and then handed down among the most lenient sentence. That was little to no solace for the non-U.S. citizen who got deported as a result, the parolee or probationer who got locked up for a new conviction, or the person who lost job opportunities as a result of the scarlet letter of a conviction.

Back to assault defense. This week, I won a Virginia assault trial, heavily on the strength of my client’s surreptitiously taping the incident on his smart phone, fully contradicting the complainant’s claim during cross examination that she initiated  the split from my client, her then live-in boyfriend, allegedly leading him to strike her face to cause a bloody nose and grab her arms to cause contusions.

The judge said he was incredulous about my claim during my opening statement (always beware waiving an opening statement, even if the opponent waives, as the opening statement provides the judge and jurors a framework with which to favorably process evidence in favor of the lawyer’s client) that my client touched the complainant only to hug and console her, only to lose the judge’s incredulity upon hearing my client on tape, calm as a cucumber, juxtaposed against the complainant’s vindictively yelling her head off about how she would f* with the client.

As a brother lawyer of mine emphasizes about scripts when we discuss upcoming criminal trials, the tape underlined that violence against the complainant was not in my client’s script, but vindictiveness about my client was part of the complainant’s.

I was concerned about a photo of two small blood marks on the complainant’s pants, which the responding police officer confirmed were present when he arrived, and looked like fresh blood. I presented testimony from my client to show that the complainant often has nosebleeds when stressed and that he saw some blood consistent with that in her nostrils, which could have dripped to her pants in that way. As to two contusions on the complainant’s arms that the prosecution attributed to my client’s grabbing them, I countered that the police officer said nothing about seeing them, that the photos were taken many days after the incident, and could easily have been caused by the complainant’s active sports lifestyle.

Here comes the kicker. In Maryland, most trial judges likely would have kept our smoking gun audiotape out of evidence, making a conviction more likely. Linda Tripp can tell you about Maryland’s strict laws prohibiting taping of conversations without the consent of all involved in the conversation. We need to allow one-party-authorized taping everywhere.