Assault victory can be more likely when the defense overcovers risk and when the prosecution’s case has holes, says Fairfax criminal lawyer

Assault victory does not come from merely praying for a good outcome. As a Fairfax criminal lawyer, I know that is the same for all Virginia criminal defense. I write this article only days after winning a Virginia assault trial where the only civilian prosecution witness asserted his Fifth Amendment right to remain silent, where the judge barred testimony about what my client said to the magistrate on the day of his arrest, and where the police officer had no harmful evidence that came out of his mouth on the witness stand. Add to that a judge who ruled correctly in denying almost every prosecution objection to the civilian witness’s asserting her Fifth Amendment right to remain silent.

A Virginia criminal lawyer wants to know whether the civilian prosecution witness wants to testify against the criminal defendant

Does the civilian prosecution witness(es) want to testify against the Virginia criminal defendant in the lawyer’s case? They do not always want to testify, whether because they do not think the defendant merits facing the harshness of the commonwealth’s criminal justice system, because they do not believe in what is bring prosecuted, because they were untruthful with the police or in prior proceedings, because they are concerned about adverse consequences to themselves from testifying, and numerous other reasons or a combination thereof. When the civilian witness is the alleged victim, some of them mistakenly believe that they can put a stop to the prosecution by simply asking the prosecutor or judge to do so. It is not as simple as that. Once a person starts a forest fire, they may not be able to control it. Similarly, once a prosecution commences in the Fairfax County court or other Virginia courts, the case takes on a life of its own that cannot be controlled by the civilian complainant other than through the satisfaction and discharge process, when applicable. In my recent Virginia criminal trial that led to an assault victory / acquittal, I learned early on that the civilian witness to my client’s alleged assault of his child (we were ready to present defense testimony that no assault had taken place) did not want to testify against my client. Therefore, I let her know the option of hiring her own lawyer to advocate that approach. I certainly could not have so advised her, seeing that her interests were different from my client’s interests, thus presenting a conflict of interest for me to have represented both of them.

What can a Virginia criminal lawyer do when the prosecutor keeps objecting to letting a civilian witness assert his Fifth Amendment right to remain silent, on the road to defense assault victory?

At the trial leading to my recent Virginia assault victory, no sooner did the prosecutor put his sole civilian witness on the witness stand, that the civilian witness clammed up her mouth other than pleading the Fifth Amendment right to remain silent. The Virginia Supreme Court three years ago said the following about the right to assert one’s Fifth Amendment right when testifying: “The Fifth Amendment to the United States Constitution provides, ‘No person … shall be compelled in any criminal case to be a witness against himself.’ This constitutional “privilege protects against real dangers [of prosecution], not remote and speculative possibilities.”… A witness’ bare assertion that an answer will incriminate him is insufficient to sustain the privilege. Hoffman v. United States, 341 U.S. 479, 486…  (1951). Rather, ‘[i]t is for the court to say whether his silence is justified.’ To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.'” ” Palmer v. Commonwealth of Virginia, 71 Va. App. 225, 233 (2019). 

Also importantly concerning my recent assault victory, the Virginia Supreme Court underlined six years ago about a Virginia witness’s right to assert his or her Fifth Amendment right to remain silent: “In Hoffman v. United States, 341 U.S. 479, 486… (citation omitted), the United States Supreme Court interpreted the Fifth Amendment right against self-incrimination as follows: ‘The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a … crime. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.'” Reyes v. Commonwealth of Virginia, 66 Va. App. 689, 692 (2016). 

Once the police officer had no admissible incriminating evidence, my Virginia assault client had won his case

All Fairfax and other Virginia criminal defendants need to know not to fear prosecutors, whether they puff out their chest, give dirty looks, or shout their heads off. It is your roll instead to obtain the right Virginia criminal defense lawyer who will not let assistant commonwealth’s attorneys be a distraction nor unnecessary obstacle to obtaining as much victory as possible in court. Plenty of Virginia criminal defendants are risk-averse to going to to trial rather than pursuing the best possible result in court. Your lawyer, though, can tell you what s/he thinks your chances at victory are in your court case. You can fight for your liberty, reputation and livelihood in criminal court. You must pursue that fight. I did that at this assault victory trial, and am committed always to provide that level of service to my Virginia criminal defense and DUI clients.

Fairfax criminal lawyer Jonathan Katz doggedly pursues your best defense against Virginia criminal and DUI prosecutions, having successfully defended thousands of people accused of Virginia DUI, felony and misdemeanor offenses. Call 703-383-1100 for y0ur free in-person initial confidential consultation with Jon Katz about your pending court case.