Any advice for trying an assault on a public servant with no visible injuries?

After defendant was placed under arrest, defendant kicked officer in face while officer was patting defendant down. Officer states he almost blacked out and had a hard time opening and closing jaw after being kicked, causing him pain. Photos taken immediately after show little or no visible injuries, maybe a little swelling.

All I have to prove is physical pain, illness, or any impairment of physical condition. Which I can through the officer's testimony.

Anybody have any pointers for trying these types of cases? I primarily prosecute drug cases. Any help would be appreciated.

Thanks

[This message was edited by JTC on 04-29-09 at .]

[This message was edited by JTC on 05-06-09 at .]

Essentially, you have a run of the mill he said/he said, uncorroborated assault; a case that most misdemeanor prosecutors will hesitate to file.

The twist in your case is that your victim is a sworn officer and we (the White hats) take that distinction seriously. But my experience has been that juries are going to treat your victim�s testimony the same as they would have the misdemeanor victim�s that we usually do not file. My guess is that you will not persuade 12 people BARD. (Among other issues that you have, it is pretty hard to believe that you can get kicked in the face and not leave a mark.)

Plan B: Plea Bargain.

Just my two cents. YMMV.

I respectfully disagree--kicking a police officer is well worth prosecuting.

I saw at a training and used in trial for family violence a "spectrum" of what a person would hear from their next door neighbor before they called the police...illustrating who believes that family violence should not be criminal and then you know who to bounce off your jury.

You could probably do a similar spectrum for officers in the line of duty, because people believe to a certain extent officers expect to take a scuffle here or there--but a kick to the face? I doubt many jurors would tell you that an officer's job is dangerous and they should take that in stride.

Maybe on the light end an officer might expect smart aleck comments, then up the spectrum would be threats and cussing, then making it hard to handcuff, then up to pushing the officer away, and finally actually physical assault. The jury could see that it's way up the spectrum of what puts the officer and the rest of us in danger.

And if a person is just flat dangerous enough to kick an armed man while he was handcuffed, what would he do to an unarmed citizen joe that made him mad? Would you want to be behind that person at the bank when he got turned down for a loan? Those are the kinds of things I would talk about in closing.

Additional information - officers were watching a heroin house. Vehicle left, officers went to make an investigative stop, prior to vehicle stopping, my defendant bolts from passenger side of vehicle and runs off. Officer pursues on foot for about a block. Prior to stopping, defendant throws object (later found to be heroin). While officer tries to detain defendant, defendant tries to hit officer with closed fist and screams "Shoot Me, Kill Me." Officer finally gets him in cuffs, then he kicks officer in the face.

With those facts, the case is muy different. I would definitely file it.

I was originally assuming a traffic stop that had gone bad and I could envision an entire playground of problems for a defense type to play with. Your case is not a run of the mill anything.

Your assault is essentially self corroborating with by the surrounding facts and the defendant's conduct. A jury will see this for what it was.

I don't know about your jurisdiction, but any job related injury or incident is heavily documented by all of our LEOs. Any indication he went to see the doctor the next day? Heck, if even the jail nurse checked him out, there's bound to be some sort of documentation. Might help you bolster the officer's testimony and make it more 'interesting' for the jury.

Just my two cents,

LW

As a police officer I would be appalled if you DIDN'T file charges and pursue it. That's obviously a purely emotional, non-objective response, just my two cents. People need to know assaulting an officer will get you a trial.

Trial is next week.

Defended a very similar case several years ago before I became a prosecutor. My defendant did leave a mark, pretty good sized one the top of offier's head. Jury was very agreeable to return a conviction. The judge wasn't as impressed and gave the defendant the minimum two years. Your jury will know the Defendant is a criminal to start with because he is running off and then being arrested. Suzanne gave good points for voir dire. I would really hammer home the definition of bodily injury.

Just be careful of the tendency to be macho by your police officer. I was trying an assault on a public servant case where a habitual criminal kicked the &%$# out of an officer's knee, and when the officer got on the stand, and I asked, "Did that cause you pain?", he answered, "Well, it sure did swell up a lot an get stiff." He refused to admit that it hurt. And we'd gone over this question prior to trial! We pled the guy to 2 years TDCJ right after that.

You can also voir dire on whether anyone has ever had a headache, toothache, muscle cramp, etc. and whether those pains were necessarily visible. Even with trauma, not all injuries necessarily cause a visible injury (just ask any girl who's had her hair pulled - hurts like heck but generally doesn't show up). Most people will expect trauma to the face to be visible, but 'taint necessarily so. Challenge for cause anyone who REQUIRES visible marks, even if they believe beyond a reasonable doubt that there was pain (i.e., they believe BRD there was pain/injury, but will not convict unless they can see it). They are requiring a specific type of evidence, and the law does not require that.

+1 on tracking any medical documents that indicate he sought out care afterwards. I have seen one case where an injury was not visible to the eye but showed on an MRI. Any paperwork documenting (and corroborating) that he sought medical treatment would be very valuable.

Otoh, I have tried one case such as this where a pursuit was involved and the officer was struck several times, at least once in the face, with no visible injuries. That officer did not seek medical attention. D was found guilty of the lesser misdemeanor assault.

Ask if anyone has ever been in a minor fender bender. You'll get lots of hands. Go through each one and get them to admit that it left no cuts, bruises, or marks of any kind yet it still caused them pain.

[This message was edited by Adam Poole on 04-30-09 at .]

Defendant received life on the assault on a public servant and 20 years on his possession case. Thank you for your help.

Very nice. I always like it when someone has done something I haven't. Well done. Your officer was lucky to have you prosecuting the case.

Good job!

Congrats.

Totally awesome; another win for the prosecution!!! Good job.