Assault in the Third Degree, Penal Law Section 120.00, as of 2016 (most recently available statistics), was the single most common charge in New York City Criminal Courts, with around 35,000 cases. (See 2016 Annual Report for New York City Criminal Court). The most common questions I get about assault in the third degree charges in New York City involve "self-defense" or justification as the law technically refers to it. The rules of justification can be the subject of volumes of philosophy, so for this short article I thought I would use the description of self defense I learned from a very experienced and very famous criminal defense lawyer at the beginning of my career.
A old criminal defense lawyer from the deep South I once met when I was a young lawyer told me that there are two things that you need to show to the jury in an assault self-defense case. The first thing was that the victim "needed a beating". The second thing was that your client was the right man for the job.
This of course was his colorful way of expressing the concept of self defense in a way that didn't use legal terminology or talk about natural human rights or any of the niceties that keep us lawyers in business. But it was also a way of expressing the notions about self defense that people carry around with them and that could drive their decisions as jurors in some cases regardless of how the judge describes the technical meanings of the legal principles to them.
If you think about it, this colorful expression of self defense does include what the law would describe as self defense. A person, for example, who punches you in the face for no reason other than that you accidentally tripped and knocked into him at a bar, could easily be described as someone who needed a beating. And if you hit him back in the face and injured him in the process, you could easily be described as being "the right man (or woman) for the job."
The thing that makes us laugh when self defense is expressed this way, however, is that described in this colorful way, self defense could be a much broader and more flexible defense than our law books and statutes might allow for. At least where the particular defense of self defense is concerned, people are generally going to respond to it more along this colorful expression of it than in strict adherence to the law's technical formulation of it.
What this lawyer was expressing to me in describing self defense in this way, was that as a criminal defense lawyer, when taking on assault cases, like the assault in the third degree cases I would come to take on as a New York City criminal defense lawyer in years to come, you need to think beyond the strict understanding of the technical operations of the self defense rules and laws and think of self defense in the way that jurors are going to be likely to respond to the defense.
I think self defense, perhaps uniquely among defenses in criminal law, is something that most people feel at a gut level and have some sense of it built into them and all the jury selection and promises notwithstanding, jurors will bring these feelings with them to court.
Of course this does not mean that anything goes. You need to be able to convince people about that "needed a beating" part. That will not be possible in all cases. You can't simply will the defense into being by saying it out loud. You need to really be able to show that the victim "needed a beating".
But because self defense (justification) carries its deeply felt emotional payload, a highly technical analysis of a given case and the "standard" approach to defense cases needs to give way to a broader, less traditional approach. For example, my wife, who is a New York City criminal defense lawyer herself, was once selecting a jury in an assault case in Queens. During jury selection, a retired Nassau County Detective was in her panel of prospective jurors. Rather than immediately discount him as a possible juror and use her time to talk to more likely subjects, the fact that the case was a self defense case led her to go right to the former Detective and test him out on jury selection. Ultimately, to the horror of many of her colleagues (but not to me) she put him on her jury. She put a retired Nassau County Detective on her jury.
Self defense is universal. Even retired detectives appreciate self defense. In this particular case, my wife knew that none of the police testimony, since the police were not witnesses to the altercation, was going to be called into question, so she knew she would not be asking the Detective to believe that a police officer was wrong about anything. I thought it was a bold and interesting move. At the conclusion of the case, the jury, including the retired Nassau County Detective, returned a not guilty verdict in less than 30 minutes.
Self defense cases are different, and require their own special analysis. Since getting the wisdom of the advice about what is important in an assault self defense case all those years ago, I have put that advice to the test in preparation of the defense of a great many assault third degree cases. In the world of misdemeanor assault in the third degree cases in New York City, I have run defenses of self defense in situations arising out of bar fights, scuffles at family gatherings, sporting events, and more. And the first lens that I examine them all through is the lens provided me all those years ago. Did the victim need a beating? And was my client the right man (or woman) for the job?