Self-defense is a reasonable fear of bodily harm repelled with reasonable force. It can be used by a lawyer as a basis for appealing assault charges in Virginia. That force must be proportional and the degree of force that is allowed can depend on the location of the threat or the source of the threat. In some circumstances a person can also use force to defend another person from harm or even to defend property.
Self-defense is an affirmative defense, which means that if a person charged with assault or malicious wounding wishes to claim self-defense, the burden is on that defendant to show that he or she was defending himself or herself and thus the assault was not actually an assault but was a justified action.
This must be shown through preponderance of the evidence. Unlike other elements of assault in which the government carries the burden to prove beyond reasonable doubt, the government is under no obligation to prove that the defendant did not act in self-defense.
The determination of self-defense can be appealed and this is often an issue of contention in assault appeals. Sometimes the court may refuse to give instructions on self-defense to the jury. Sometimes they may give instructions that improperly state the burden the defendant has to carry to prove self-defense.
Self-defense is often fact specific. If an individual’s claim of self-defense fails in the General District Court it would very often be a wise decision to appeal that to the Circuit Court for new evaluation of the facts. If claim of self-defense fails in the Virginia Circuit Court, then an Virginia assault appeal lawyer will need to work even harder to find mistakes in the court’s handling of the case.
They have to parse the records from trial and see if the records show that there was strong evidence of self-defense or that the court made a mistake in applying the law. If the appeal to the Court of Appeals is based on factual determination related to self-defense then the evidence of self-defense also has to be very strong for the appeal to succeed because the Court of Appeals gives great deference to the trial court and its findings of facts.
A Virginia assault appeal to the Circuit Court is called a “de novo” appeal; this means that everything is heard from scratch. If an individual is convicted of a crime of assault in General District Court or the Juvenile and Domestic Relations Court and appeals to the Circuit Court, that initial conviction is immediately wiped away and none of the proceedings in the lower court are relevant to the proceedings in the Circuit Court.
Appeals to Circuit Court are highly time-sensitive. Someone has only 10 days to appeal a conviction to the Circuit Court, but once that appeal is lodged the conviction is wiped off the records.
An appeal to the Court of Appeals is very different. The Court of Appeals sits in panels of judges. The appeal will go directly to a judge who will try and consider its merits based on the legal arguments presented and, sometimes, will refuse to hear that appeal and at that point the appellant will have the option to have that decision reviewed by a panel of three judges, and if one of those judges chooses to hear the appeal the appeal will be heard.
If the appeal is heard then it goes before a panel, usually a panel of three judges, who make a determination based on the legal errors that were made by the Circuit Court. They are very rarely going to disturb the findings of facts unless they also involve questions of law.
If an individual wishes to present new factual evidence after a conviction in the Circuit Court he is best advised, if at all possible, to present that evidence as quickly as possible, because Circuit Court only retains jurisdiction to reopen a case within 21 days after the conviction.
At that point new factual evidence can only be considered if the defendant files for what is called Writ of Actual Innocence and can show that there was a reason that he or she could not have been aware of this evidence after the conclusion of that 21 day period.
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