What Are The Common Mistakes People Make In Assault And Battery Cases?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

There are actually five basic mistakes typically seen in assault and battery cases. These are very common and normal because people’s tendency is to try and explain themselves. So #1 would simply be talking to the police. A lot of people, after having talked to the police and been arrested, will claim that the police didn’t read them their rights. In every movie and video, the police are always reading people their rights. That’s intentional that they did not read them their rights, whether they are investigating a bar fight or a domestic case.

The reason they don’t read them their rights is that they want people to talk to the police as that’s one of their most effective ways of gathering evidence; and since people naturally want to explain themselves, the police, in a very non-threatening manner, have been taught to manipulate people, and this is what they’ve been taught. They don’t want you to lawyer up and go silent so what they do is say, “You are free to leave. You are not under arrest. Do you mind if I ask you a few questions?” It sounds so harmless that people start talking. Later, when they ask, “Why weren’t my rights violated?” it’s very simple. There are two requirements on the right to remain silent that have to be present in order for someone’s rights to be violated.

Number 1 is that you have to be in custody. This is why the officer says, “You are not in custody. You are free to leave at any time.” Secondly, it has to be a custodial interrogation. Prosecutors teach police officers how to approach people in what appears to be a non-threatening manner in order to get them to say things that hurt their legal interests long-term, and a lot of times, people think they can talk themselves out of a ride, and what they end up doing is talk themselves into a conviction instead. Even if a person has a bad case, they shouldn’t try and explain themselves to the police.

Why Is Self-Representation A Bad Idea For Someone Facing An Assault and Battery Charge?

This is very common and is actually the second thing on the list of the five common mistakes most first offenders make in assault and battery cases. The reason that is so important is #1: the prosecutor has been to law school; even if he or she has never tried a case in their entire lifetime and this is their first day on the job, they know about case law. Their boss knows that everybody is going to go on the Internet and research their case. The Internet is filled with statutes and rules of procedure, but it is missing the most important element, that third component, which is case law.


Case law is when an appeals court has decided whether or not a particular set of facts means that someone has broken the law or is justified for jury instruction where the evidence needs to be excluded or allowed. Case law is critical; and when someone self-represents, they don’t even know how to get full and complete discovery, and at best they get a bare bones police report. Then when they go on the Internet, they don’t know what to do with it; then finally, when they self-represent, that’s when courthouse surprise happens.

Courthouse surprise is an absolute epidemic, particularly in assault and battery cases. In the domestic variant, it is particularly dangerous because defendants will say, “I was told by the prosecutor in court on a break that if I took this deal, I would have adjudication withheld, and I would not have a conviction. Now, I find out I can’t own a firearm; I can’t go hunting, I can’t join the military, stay in the military or some other protected class where domestics are included.” The reason is under state law, adjudication withheld literally means someone has not been convicted. However, there are other state laws, and there is a federal statute known as the Lautenberg act, which says that even if an adjudication is withheld on a domestic charge, someone still has a domestic violence criminal history, and they cannot own a firearm; moreover, they can’t work in certain capacities and professions.

Self-representation can blow up in your face even if you think you have a good case; however, when people get a courthouse surprise or an unexpected jail term of 10, 20 or 30 days, that’s the worst variant of courthouse surprise. Quite often, people don’t find this out until they are in front of the podium. Why does this happen? This involves the third area, which is overconfidence. Overconfidence is the #1 problem that people have going into criminal cases. They’ve watched a lot of television and movies, so they think that they know a lot about the justice system. They also, in many cases, think that they are guilty so why spend any money on legal fee?

The reason you invest in legal services is so you don’t experience courthouse surprise and overconfidence is not used against you. For example, someone could say, “I don’t think I need a lawyer; I can handle this on my own. The other party has gone down to the prosecutor’s office, and they don’t want to prosecute and are going to drop the charges.” Surprise. Only the state of Florida can formally prosecute, and only the state of Florida can formally dismiss charges. When people are overconfident, they often try and handle cases on their own, only to find out it can blow up in their face rather explosively. Perhaps the best example of this is a combination of what was said above, what the Internet said and fear of legal fees. This blows up when someone wanders into the courtroom and is going to handle the case on their own because the complaining witness does not want to prosecute. That’s a classic example. On a break, they meet with the prosecutor. Often people think that their first court date is a trial. It’s not. It’s only formal charging. When someone gets out of jail, even if they’ve seen a judge on a video camera, which is commonly how a first appearance is done, their next legal proceeding is what’s known as an arraignment.

Some counties call this plea day, which is technically inaccurate. It doesn’t really matter; it’s formal charging. People will go to court, thinking it’s a trial and that they’ve got it locked up by self-representing. Feeling overconfident, they’ll meet with the prosecutor and say,”Look, I’m not going to take this; I’m not going to take that.” The prosecutor will try and sell him a probation deal, by saying, “I’m not going to spend my whole day talking with you. So take it or leave it. Here is my best deal. You can get a diversion program.” You can almost hear the music when it comes to “Diversion Program,” believing that charges will be dismissed.

There is a slight problem with that. Let’s compare a diversion program, on one hand, with a negotiated dismissal on the other. The typical negotiated dismissal in a battery, which is domestic, would be stay out of trouble for 90 days, $303 in fines, costs and fees. By the way, as soon as you pay the $303, the charges will be dismissed. There is an agreement by written contract where the deferment will end upon payment. So somebody can literally sign the deferred prosecution contract on day 1 and go down to the courthouse, pay the fees and then the following day or so, charges are officially dismissed.

Let’s compare this outcome to a diversion program, which can be another outcome entirely.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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