Reply #71: not really [View All]

[paulsby]

i've charged DOZENS of assault II's and assault IV.

the standard for assault II 9a.36.021 1(a)

is SUBSTANTIAL harm.

i have had more than one discussion with prosecutors about what this means because we have to decide all the time what kind of assault to file.

i recently had a case where a guy lifted a 65 yr old woman up by the seat of the pants and flung her through the air, she landed on the ground, split her head open and received over a dozen of staples in her head, spent the night in the hospital and according to the nurse - could have died.

THAT was assault II.

this case is a "garden variety" assault IV. i've charged many like it.

substantial injury, according to my discussions with the violent crimes prosecutor involves either broken bones, an injury that impairs a vital bodily function (like if a black eye swells up so much the person cannot see out of it) or other such injury.

substantial is the word and there is ample case law and filing standards abou it.

simply put, it is not a matter of what people think SHOULD be the charge. the charge HAS to fit the fact pattern and the evidence.

and no, substantial injury is NOT a question for the jury (non-medical laypeople). it actually has to be verified by a medical professional which is why we have people sign a medical release. the standard would be for a MD to testify that the "victim received a radial fracture of the humerus" in order to establish beyond a reasonable doubt that the injury was "substantial"