Man threating another man

Assault: What Does it Entail?

Each state has its own statutory definition of what constitutes an assault. Generally, an assault is when a defendant places a victim in fear of a harmful or offensive touching.

Assault is a criminal offense and has the potential to carry a jail sentence, therefore bail might be an option.

Most states categorize simple assault as a misdemeanor; certain factors can increase the charge to a felony. For example, assault with a deadly weapon constitutes a felonious assault.

How is Assault Evaluated

In order to constitute an assault the defendant’s actions must rise to such a level that a reasonable person in the position of the victim would be afraid of some harmful or offensive touching. Some states require that an overt action on the part of the defendant be present to constitute an assault.

For example, the defendant swings a baseball bat at the victim and misses. Has an assault occurred? If the defendant was in close proximity to the victim, close enough where a reasonable person would fear being hit by the baseball bat, then an assault has occurred. If the defendant is farther away, such that no reasonable person could fear that the bat would strike them, then no assault has occurred.

Some states require that harm actually befall the victim to constitute an assault. Notably, the harm in question does not have to befall the intended victim. If the defendant swings at a one person but strikes another, then the doctrine of transferred intent makes the defendant’s striking of the unintended individual an assault.

Being charged with Assault

Since Assault is a criminal charge, if sufficient evidence is brought forward to convince a judicial officer that probable cause exists that the crime occurred, a warrant will be issued for the defendant’s arrest. Alternatively, if a law enforcement officer sees the defendant committing an Assault, then this is sufficient evidence to bring about the defendant’s arrest.

If the defendant is not arrested at the scene of the crime, then a warrant will be issued and the defendant will be treated as a wanted individual. This means that if a law enforcement officer encounters the defendant, the officer has the authority to immediately arrest the defendant and take him to jail.

The defendant will be handcuffed and read his Miranda rights; ultimately being brought to a local jail to await arraignment. During the arraignment process, the defendant will be officially advised of the charges brought against him and a judicial officer will determine if the defendant is eligible for bail.

Bail Eligibility

In making a determination regarding bail, the judicial officer will look at state law to see if there is a presumption against bail. If no presumption exists, then the judicial officer will look at the criminal history of the defendant to evaluate if he is eligible for bail. If the defendant is eligible for bail, then a reasonable bail will be granted. Otherwise, the defendant will be denied bail.

If the defendant is denied bail, a bail hearing may be requested by the defendant. At this hearing a judge will evaluate whether or not bail should be granted. Generally, a judge will look to see if the defendant is a flight risk or if the defendant presents a danger to himself or others. If the judge thinks that the defendant will appear in court when required and is not a danger to himself or others, then bail may be granted.

Paying bail

A defendant who is eligible to be bailed out of prison will have to sign a promise to reappear on his court date. If the bail is secured, the defendant will be required to pay a monetary amount, determined by the judge, to be released from jail.

If the defendant is unable to raise the amount of money needed, a bondsman may be hired to provide a bond for the required amount. The bondsman typically charges a non-refundable portion of the bail’s total amount as his fee; usually around 10 percent. If the defendant fails to show up for his court dates, then the bondsmen will attempt to locate the defendant and bring him to court.

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