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 several different defenses in assault and battery cases. The first thing that needs to be done is to have a proper strategy. When it comes to the proper strategy for the defense of an assault or a battery case, in my opinion based on a lot of experience, the single most important strategy that a person should engage in immediately is to find the best criminal defense lawyer they possibly can find. That’s number one. However, this often requires number 2. They must obtain emotional mastery at a time in their life when they are being prosecuted for a crime. If that particular assault or battery is domestic, not only are they being prosecuted for a crime but they may end up being kicked out of their house due to a no-contact provision of a bond order. During this stressful time, they have to make extremely good decisions.
My strategies always start with, first, get the best lawyer that you can and two, emotional mastery because no one wants to be that person who traded a year of probation for a year in jail or 5 years of probation for 15 years in prison. I’ve seen this happen multiple times and when it comes to defenses, what I do is when those two things are taken care of, emotional mastery and getting the best defense counsel, the first thing I do is I need to assess the complaining witness. Is the complaining witness engaging in a false allegation? If they are engaging in a false allegation, is it in a domestic case where they are trying to get a more favorable divorce settlement or child custody arrangement? Is this a false allegation regarding retaliation? For example, somebody may be the victim of a false allegation because they purportedly had an affair with someone else.
There could be a dispute between two people who are business partners. There are a number of things. The first thing that I have to do is assess the complaining witness. There is a big difference between a complaining witness who says look, I want to let this go. I am not going to go forward with this and a different complaining witness who calls the state attorney’s office every single day of the week asking for the defendant’s head on a stick. There is a very big difference and so one of the most important strategies once emotional mastery and defense counsel have been properly obtained is to , as a defense lawyer, assess the complaining witness. You also want to know things such as whether or not they are a credible witness, whether or not they have prior criminal history which can be used to damage their testimony, what we call impeaching the witness at trial and we also want to know where the complaining witness lives.
For example, this is a defense most people don’t know about but if someone is charged with misdemeanor assault or misdemeanor battery and lives in another state, when the state attorney subpoenas them for trial, because it is a misdemeanor subpoena on an out of state witness, even the main witness or the complaining witness in the case, that person does not have to honor that subpoena because it’s a misdemeanor subpoena and they are out of state. That is a form of a defense to battery. Self-defense is obviously a defense to battery, so is defense of others and in certain circumstances, defense of property can also be advanced as a defense to battery. My favorite defense is what’s known as mutual combat. Most people have not heard of this.
Mutual combat basically assumes both people were wrong and you can imagine that two guys start arguing with each other, they start threatening each other and then one of them says let’s go outside and settle this man to man and sure enough, a fight ensues. If this fight does not result in any felonious type of battery or assault charge and it remains a misdemeanor, then in the case of a misdemeanor battery where two guys are fighting, the loser cannot just call the police on the other party who won simply because they lost when both of them agreed to engage in what is essentially an unlawful act. Mutual combat assumes both people are wrong, thus neither can go running to the police for remedy against the other person. It’s a very rare defense but it does happen.
Battered Spouse Syndrome is found in the Florida statutes because there is a specific notice provision that the defense must give to the prosecution if they intend to rely upon the defense of the battered spouse syndrome. During the entirety of my career, I’ve only known of a handful of cases where defense lawyers have tried to use this defense and generally speaking, battered spouse syndrome is one of those defenses which has pretty much fallen out of favor. It’s not very common, it’s not used very often. A couple of other defenses, one is pretty obvious, the other isn’t. The obvious one is it didn’t happen. That’s a defense. No battery and no assault occurred.
Finally, with felony cases, there is a type of defense that many people don’t think of as a defense and that’s known as a lesser included offense. If someone is on trial for a sexual battery charge, that has some serious consequences if they lose. One of the techniques that may be used by the defense if it looks like something is going to stick, it’s argued for a lesser included offense and misdemeanor battery may be a lesser included offense in a particular sexual battery prosecution due to the fact pattern. Thus I’ve actually had a case where somebody was charged with sexual battery, went to a jury trial on sexual battery, the jury found them not guilty of sexual battery but found the person guilty of misdemeanor battery. So that’s a defense strategy that can be employed. Sometimes it’s a strategy that can be used “just in case.” In the case I referenced a few moments ago that’s exactly how it was used. I just simply asked for the lesser included offense instruction since it was a category one lesser included offense of battery in this particular charge, the judge gave it.
I never know what a jury would have done without it but it’s far better to have a battery conviction than a sexual battery conviction so I considered it prudent and wise to ask for a lesser included offense and that’s exactly what the jury did thus sparing my client sex offender designation and registration as well as imprisonment and sex offender probation to follow.
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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