“Assault” is one of those criminal offenses that could stem from a wide variety of facts and circumstances. For example, on one hand an all-out bar brawl could result in an assault charged being filed against the combatants while on the other hand a victim of an attack could also end up being charged with assault if it isn’t immediately clear who the aggressor was in the altercation. If you have been charged with assault in the State of Nebraska, you could be facing a misdemeanor or a felony conviction if convicted. Along with the judicial penalties a judge might impose if you plead guilty, or are found guilty at trial, a conviction for assault on your record could cause a number of negative non-judicial consequences down the road because assault is generally considered a crime of violence. As an accused, you may be wondering what defenses to assault lawyers might use to prevent you from being convicted. Given the unique nature of criminal prosecutions in general, and cases involving assault particularly, it should come as no real surprise that only an experienced Nebraska assault attorney can review the facts and circumstances surrounding your arrest and advise you with regard to any defenses that might work. Generally speaking, however, there are only a few common defenses assault lawyers use to try and prevent a conviction.
What Is Assault in Nebraska?
In the State of Nebraska you could be charged with assault in the first, second, or third degree. Nebraska Revised Statutes 28-308-310 govern assault, defining the different degrees of assault as follows:
- Assault in the first degree — A person commits the offense of assault in the first degree if he or she intentionally or knowingly causes serious bodily injury to another person. Assault in the first degree is a Class II felony.
- Assault in the second degree — A person commits the offense of assault in the second degree as a Class IIA felony if he or she:
- Intentionally or knowingly causes bodily injury to another person with a dangerous instrument;
- Recklessly causes serious bodily injury to another person with a dangerous instrument; or
- Unlawfully strikes or wounds another (i) while legally confined in a jail or an adult correctional or penal institution, (ii) while otherwise in legal custody of the Department of Correctional Services, or (iii) while committed as a dangerous sex offender under the Sex Offender Commitment Act.
- Assault in the third degree — A person commits the offense of assault in the third degree as a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor if he:
- Intentionally, knowingly, or recklessly causes bodily injury to another person; or
- Threatens another in a menacing manner.
When Is Self-Defense a Viable Defense to an Assault Charge?
Assault is one of those offenses for which there are few viable defenses. Self-defense, however, can be a valid defense to assault. Nebraska Revised Statute 28-1409 sets forth the circumstances under which an individual is allowed to use force, specifically stating:
“the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”
Therefore, if you believed that the other person involved in the altercation was trying to cause you serious harm, your conduct may have been justified. If so, you are not guilty of assault.
“It Was an Accident!”
Another potential defense to assault is to claim that what occurred was an accident – that you did not intend to injure the “victim.” If you will note, both first and second degree assault require the State to prove that your conduct was “intentional” or “knowing.” In layman’s terms this means that the State must prove it was your intention to harm the victim, or that you knew your conduct would harm the victim. Third degree assault can be proven by showing your conduct was “intentional,” “knowing,” or “reckless.” “Reckless” allows the State to succeed by showing only that you were aware that there was a substantial risk that your conduct would cause harm. Therefore if you claim the victim’s injuries were caused by an accident, you will have to be able to convince the judge or jury that your conduct was not intentional, knowing (for 1st and 2nd degree assault) or reckless (for 1st, 2nd, or 3rd degree assault).
If you are currently facing assault charges in Nebraska, it is certainly in your best interest to consult with an experienced Nebraska assault lawyer right away. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense lawyer.