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I read a fictional story about this assault/lawsuit, and I'm really stuck on some of the details. I'm trying to figure out if it was actually written correctly or not...

So this guy assaulted another guy, pretty much. It was a pretty messy assault, though, and they both wound up with injuries although the victim didn't get the chance to fight back before the attacker stopped. Nobody witnessed the assault, but the police showed up after the fact and arrested the attacker, but not the victim.

A while later, the victim is subpoenaed to court. The attacker has a lawyer. He didn't hire the lawyer, though, one was provided for him. The attacker is being charged with attempted murder. When the victim is called to the stand, he says it wasn't attempted murder. The thing is that the attacker and the victim were actually friends, they just got into a heated argument, and the one guy just took it too far and attacked the other guy. On the stand, the victim says that the attacker wasn't trying to kill him, he was just trying to beat him up a little to scare him off, pretty much.

The judge concludes that it wasn't attempted murder, but aggravated assault, and the attacker is sentenced to six months in prison. The attacker is sent to a holding cell, requests to speak with the victim, and the victim shows up. The attacker is then sent to prison, gets out six months later, and life returns to normal.

Did any of that make even the slightest bit of sense? Some questions in specific...

Why did they only arrest the attacker and not the victim?

Can the victim be subpoenaed to court? Could they have actually done anything without the victim present?

Is the victim's testimony enough to actually reduce the sentence down to aggravated assault? Is six months too short of a time?

Would the attacker have been put in a holding cell? Could he have requested to see the victim? This seems like the "one phone call" thing to me, but is that possible here?

Would the attacker just go back to normal after his release? Would there be any further punishments or restrictions?

Could the victim change his testimony afterward and reopen the case? Or would that be unreliable?

How many years would the attacker have been facing for the original attempted murder? Why did it take so long for the case to start?

I think there are some details I'm forgetting, so I'll edit this if I remember more. Thanks in advance.

closed as too broad by Nij, A. K., Dale M, Trish, Martin Bonner May 29 at 7:46

Please edit the question to limit it to a specific problem with enough detail to identify an adequate answer. Avoid asking multiple distinct questions at once. See the How to Ask page for help clarifying this question. If this question can be reworded to fit the rules in the help center, please edit the question.

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    Which jurisdiction is this in? – hszmv May 20 at 13:52
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    You say the attacker was injured, but the victim didn't get the chance to fight back before the attacker stopped. Does this mean that the victim then assaulted the attacker after the attacker had stepped back? This matters because a claim of self defence would hinge on whether the victim thought he was still under threat, or was just taking revenge. (Its quite possible that the cops just decided not to open that can of worms.) – Paul Johnson May 20 at 15:11
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    This question is way too broad - please break it up into multiple questions that ask one question at a time. – Dale M May 24 at 0:27
  • Whether it all "adds up" is going to be highly subjective and to know if "other things" are incorrect, one would need to read the story that you read to make that determination. Getting out for good behavior is on case-by-case factual basis, but assuming the guy was a model prisoner, it's of course plausible. Any answer about the length of the sentence is going to be subjective (as well as the topic of innumerable law review articles and debates amongst lawyers). Finally, who called the victim as the witness? – A.fm. May 28 at 6:49
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Some of this will vary by Jurisdiction, that is by country, and by state in the US, or by province in some other countries. This answer will be focused on the US. Other answers may address other countries.

Why did they only arrest the attacker and not the victim?

There is not enough information here to say, but stories from participants or witnesses could have made it clear who the attacker was. If the police believed that one party was only defending himself, they might well arrest only the attacker.

Can the victim be subpoenaed to court?

Yes, the victim can be subpoenaed just as any witness can be. In some areas a victim is routinely subpoenaed even if s/he si expected to attend voluntarily.

Could they have actually done anything without the victim present?

Yes, if there is enough evidence. The victim rarely takes the stand in murder cases, after all. However, in some cases there is simply not enough evidence aside from the testimony of the victim, so that becomes vital to the case. But if there were many other credible witnesses, the prosecutor might choose not to call the victim. The prosecutor has wide latitude on what witnesses to call and what evidence to presnent, and what charges to bring.

Would the attacker have been put in a holding cell?

S/he might have, that would depend on the policy of the local police, and the facilities the police had available.

Could he have requested to see the victim? This seems like the "one phone call" thing to me, but is that possible here?

S/he could ask, but the police would not be required to grant any such request. Indeed permitting this would be a bit unusual, but not unheard of. Usually a visitor would not see a person in a cell, but in some sort of room for the purpose. Details vary. (Edit Comment suggest this is even less plausible than I had thought, unless this is set several decades or more ago. It probably dosen't change the plot much if the attacker was brought to some sort of conference room or visitor's room instead.)

Is the victim's testimony enough to actually reduce the sentence down to aggravated assault? Is six months too short of a time?

If the judge or jury believed the testimony that there was no intent to kill, then a conviction of aggravated assault would be possible, as a lesser included offense. But this would depend on the totality of the evidence, and the way in which the finder of fact (judge or jury) interpreted it, and whether all the elements of aggravated assault had been proved, and whether any elements of attempted murder had not been proved. In those jurisdictions that I know about, intent to kill is an element of attempted murder.

As for the sentence, 6 months is not, I think, outside the range of plausibility for aggravated assault, depending on the facts and the view taken by the judge. The Judge has wide discretion to choose a sentence up to the maximum allowed by law, or much lower. The "usual sentence" varies by jurisdiction, and does not bind the judge anyway.

Would the attacker just go back to normal after his release? Would there be any further punishments or restrictions?

The court could impose an additional term of probation, with various restrictions, depending on the local law, and the choice of the Judge. These might include staying employed, not getting into other fights, not owning a firearm, taking anger management courses, or other possibilities. Failure to comply with such conditions might lead to a person being sent back to jail/prison. The Judge does not have to impose any such restrictions however.

Could the victim change his testimony afterward and reopen the case? Or would that be unreliable?

It can happen, but reopening the case is far from automatic. Generally a court has to order the case reopened, and courts generally are reluctant to do so.

How many years would the attacker have been facing for the original attempted murder?

Probably quite a few, but this varies a good deal by jurisdiction. And the Judge would have considerable discretion up to the maximum sentence permitted by the law in that jurisdiction.

Why did it take so long for the case to start?

The question does not say how long it took, but it is not uncommon for major cases to take several years before the start of the trial, partly because of the time taken to investigate, and partly because of backlogs in the court system. There are cases on record where the trial took place decades after the crime. That is unusual.

  • Not to criticize, but no jail is going to let you go to the cells, because you could give something you shouldn't to someone. – Putvi May 20 at 18:01
  • @Putvi there are numerous television and movie depictions of small-town police stations with jail cells on the other side of the room from the police officers' desks. I suppose this layout is primarily useful for dramatic storytelling, and is probably not much used in real life, but I suppose there are still some small-town jails where such a meeting could take place in the actual cell, especially if there's no other secure room available for the purpose. – phoog May 20 at 18:09
  • @phoog I used to run a small town jail, and that is not legal anymore. That was the old days. Today, their has to be room for exercise and things like that. – Putvi May 20 at 18:10
  • @phoog back in the 70s and before that was the standard though. There are still some that you can tour here in the US. – Putvi May 20 at 18:15
  • @Putvi Thanks, I have modified the answer in line with your comments. – David Siegel May 20 at 18:49
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Why did they only arrest the attacker and not the victim?

The attacker was the aggressor. Why would the police arrest someone for getting hit?

Can the victim be subpoenaed to court? Could they have actually done anything without the victim present?

The court has the power to make the victim come in to testify, but usually that is not done. The reasoning doesn't always have to be a legal argument in that case. Sometimes the prosecutor does not want to chance the victim saying something that would not help the case and sometimes the prosecutor does not want to pursue a case with no interest.

Is the victim's testimony enough to actually reduce the sentence down to aggravated assault? Is six months too short of a time?

In most states, each crime has what are known as "elements of the offense", meaning that to qualify as attempted murder or assault you have to meet certain requirements. If the testimony shows that the requirements of one crime were not met, it could be changed to another.

Would the attacker have been put in a holding cell? Could he have requested to see the victim? This seems like the "one phone call" thing to me, but is that possible here?

That kind of depends on the location. A lot of bigger cities have a cell in court house because people have to be brought in from another location. They would not let you walk back through the jail though, if the person was in the actual jail.

Would the attacker just go back to normal after his release? Would there be any further punishments or restrictions?

For assault, he would likely go back to his normal life. If it was attempted murder their would be some sort of order keeping him away from the victim if they were just friends.

How many years would the attacker have been facing for the original attempted murder? Why did it take so long for the case to start?

A lot of years would apply for the original attempted murder.

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This all sounds exceedingly typical and ordinary in almost all respects by U.S. standards. You don't specify which jurisdiction this takes place in, but given the sentence and process, the U.S. seems likely.

Sentences are often reduced for good behavior (but usually not entirely, more often 33% to 60% depending upon crowding at the facility), but a judge is also required as a matter of law to give credit for time served pending charges. And, a judge can suspend a sentence pending good behavior for a period of time in most cases.

There were also almost certainly court costs awarded against the defendant (probably a fifty to a few hundred dollars) and it is likely that there was some kind of fine as well, probably $1000 or less if it was in the U.S.

It is entirely clear if this was a preliminary hearing or an actual bench trial. I suspect it was a preliminary hearing and that the defendant pleaded guilty once the charge was reduced.

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