Virginia self defense arguments against assault prosecutions can face skeptical ears, says Fairfax criminal lawyer

Virginia self defense arguments against assault prosecutions are not assured victory. As a Fairfax criminal lawyer, I know that on top of that, presenting a self defense argument ordinarily makes it essential for the Virginia criminal defendant to waive his or her right to remain silent under the Fifth and Sixth Amendments to the Constitution, and to testify with full honesty from the witness stand. However, even the most honest Virginia criminal defendant can end up being a lousy testifier, and can end up weakening his or her criminal defense more than ever by not remaining silent, particularly when being cross examined by the prosecutor. Raising self defense and heat of passion as one’s only appellate arguments typically spells a losing appeal, in that self defense ordinarily is a matter for the factfinder (whether a judge or jury) to decide, and not the appellate court, which decides matters of law, and not matters of fact. Anthony Patrick Washington raised those as his only issues on appeal against his aggravated malicious wounding conviction under Virginia Code § 18.2-51.2 (plus use of a firearm in the commission of a felony, in violation of Virginia Code § 18.2-53.1), and the Virginia Court of Appeals found it easy to affirm his conviction. Washington v. Commonwealth of Virginia, ___ Va. App. ___ (October 19, 2022).

What is meant by Virginia self defense against an assault prosecution?

To succeed on a Virginia self-defense theory, a criminal defendant must “‘prove[] circumstances’ of self-defense sufficient to ‘create a reasonable doubt’ of his guilt… ‘In order to establish self-defense, a defendant must show that he . . . “reasonably believed that [he] was in danger of serious bodily harm or death.”‘… In addition, he must demonstrate ‘‘that he was in imminent danger of harm’ by showing “an overt act or other circumstance”’ that constitutes ‘”an immediate threat to safety.’”… Washington v. Commonwealth (citations omitted). Proving self defense is ordinarily a matter of fact, and not a matter of law for appellate courts to decide. No guarantee exists whether a Virginia jury will agree that a self defense theory will carry the day.

What is self-defense with fault / excusable self-defense?

Virginia self defense law law recognizes both self defense against assault prosecutions with and without fault by the criminal defendant. Self defense with fault takes place when the Virginia criminal defendant is at “‘some fault in the first instance in provoking or bringing on the difficulty’ but, when attacked, he ‘retreats as far as possible, announces his desire for peace,’ and acts ‘from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.'” (citations omitted). Washington underlines that when the evidence is considered in the light most favorable to the prosecution (as is required in challenging sufficiency of the evidence to convict), we have a Virginia criminal defendant who helped instigate the altercation, and did not withdraw from the dispute even though he had the ability to do that.” Washington v. Com. 

What should I do if prosecuted for assault, malicious wounding, and other felony assault?

An assault conviction is a scarlet letter that nobody wants. Ideally, assault defendants will obtain a qualified criminal defense lawyer without delay, with that lawyer fully understanding and ready to apply the foregoing defenses and others. Fairfax criminal lawyer Jonathan Katz typically can offer you an initial confidential consultation for the same day or else next day that you call. Jon Katz has successfully pursued the best possible court results for hundreds of assault defendants, and for thousands of Virginia DUI and criminal defendants, combined. Call 703-383-1100 for your free initial in-person consultation with Jon about your court-pending case.