Episode Transcript
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Lee Burgess (00:01):
Welcome back to
the Law School Toolbox podcast.
Today, as part of our "Listen andLearn" series, we're discussing
criminal assault and battery.
Your Law School Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the lawschool and early legal career
experience, so you'll be the bestlaw student and lawyer you can be.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
(00:24):
career-related website CareerDicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, pleaseleave a review or rating on
your favorite listening app.
And if you have any questions,don't hesitate to reach out to us.
You can reach us via the contactform on LawSchoolToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
(00:49):
Today, we're covering a few crimesthat don't result in the death of
the victim - assault and battery.
A quick note that assault and batteryare topics covered in Torts as well.
And we have "Listen andLearn" episodes on that.
It's a great reminder that thelaw could be very interconnected.
Assault and battery can both be crimesand they can be intentional torts - that
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is, both civil and criminal law.
As I said, we're focusing on the criminallaw side of assault and battery today.
We hear about assault and batterya lot outside of law school.
I think nearly every Americanhas at least heard the term.
It comes up in almost every legal drama,on the news, and in many other places.
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The problem is, the terms aren'tusually used correctly and they
are often conflated into one thing.
As a future lawyer, though,you will know better.
As always, let's start with the rules.
First, battery.
The definition of battery has three parts.
It is the, [1] unlawful applicationof force; [2] directly or indirectly
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upon another person, their clothes,or close personal belongings; [3] that
results in injury or offensive contact.
As you can see, battery is pretty broad.
Any unlawful force that injuresor offends, whether on a person
or to their clothes or eventheir personal things is battery.
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But this is criminal law, so we can'tforget the mens rea required to prove
a battery is quite broad as well.
Battery is a general intent crime, meaningthe prosecution need only prove that
the unlawful act itself was intended.
Intent to cause injury is not required.
It doesn't matter whether the defendantmeant to hurt or offend anyone.
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All the prosecution has to showis that they meant to commit
the act that caused the harm.
So, if battery is a force thatcauses harm, what is assault?
Assault is either, [1] an attemptedbattery; or [2] the intentional
creation of a reasonable apprehensionof imminent bodily harm to a person.
So, if the crime would bebattery but no one got hurt,
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that could be charged as assault.
You can also think of assault as thethreat of battery, where no physical
touch or force actually happened.
So, back to my warning from earlier- popular media does not get this right.
I've usually seen assault used whenwhat actually occurred is a battery.
Maybe you've seen this too (03:24):
A
character in a TV show is physically
attacked and injured, and they talkabout the character being assaulted.
Now you know what theyreally mean is battery.
So, let's test your newfound expertisea bit by looking at some hypotheticals.
These hypos are adapted directly frompast bar exams, so they are a great
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example of what you will actuallysee a need to analyze on an exam:
"Jim and Fred armed themselveswith handguns and drove to a store.
They both went into the store, drewtheir guns and demanded that Salma, an
employee, give them the store's money.
After Sama handed Jim the money,he nervously dropped his gun,
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the gun discharged when it hitthe floor, and the bullet hit and
killed Chris, a store customer.
Salma then got a shotgun from underthe counter and shot Fred, killing him.
Jim picked up his gun, ran out of thestore and drove back to his apartment.
Later that evening, Jim saw Salmawhile walking down Park Street.
Thinking that he could eliminate heras a witness, Jim shot at Salma with
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his gun, but the bullet missed her.
Jim then drove away in his car.
Could Jim be charged withassault and/or battery?"
Since we're on a Hollywood kicktoday, let's take it scene by
scene, starting with the store.
Could Jim reasonably be chargedwith assault and/or battery
regarding the events at the store?
The first step in answering thisquestion is to review the rules.
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Remember, battery is the unlawfulapplication of force directly or
indirectly upon another person,their clothes, or close personal
belongings, that results ininjury or offensive contact.
Do you think Jim committed battery?
I don't think we can argue that,and here's why: First, Salma was
never actually touched, so shecannot be the victim of a battery.
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Chris was definitely the victimof the use of force on his
body that caused him injury.
But the problem is, Jim didnot intend to use that force.
The hypo tells us that Jim droppedhis gun because of his nerves.
Now you might be thinking, "Wait aminute, Jim brought a loaded gun into
an open store that he intended to rob.
How can you argue he didnot mean to shoot anyone?"
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That is an excellent question, and Isuggest you review the felony murder rule
if you want to consider that even more.
And remember, there may beother substantive crimes for
which Jim can be charged.
But without the intentionality - themens rea - the use of force is
not unlawful and Jim can't bereasonably charged with battery.
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So, if not battery, can Jimbe charged with assault?
As we discussed earlier, assault iseither, [1] an attempted or failed
battery; or [2] an intent to causereasonable apprehension of imminent
bodily harm or an imminent battery.
What do you think?
Can we argue that Jim attempted a batteryor intentionally caused Salma or Chris to
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reasonably apprehend imminent bodily harm?
Well, this time I wouldargue the answer is "yes".
By drawing his gun - an inherentlydangerous weapon - pointing it at Salma
and demanding that she give him themoney, he intended Salma to apprehend
that if she did not comply, shemight be imminently shot, which would
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certainly amount to an injury causedby an unlawful application of force.
So, I would argue Jim assaulted Salma.
Chris appears to just havebeen an unlucky bystander here.
The hypo does not suggest that Jimthreatened or attempted to harm Chris.
With the information we have,it's unlikely Jim can be
charged with assaulting Chris.
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Okay, so Jim can reasonably be chargedwith assault for his actions at the store.
What about his laterinteraction with Salma?
Can Jim reasonably be charged withassault and/or battery regarding
the incident on Park Street?
I won't review the rules again,since we've just covered them.
So let's jump right intoan analysis of battery.
We can dispose of battery pretty quickly.
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Since Jim missed Salma, there was noapplication of force and no injury at all.
Without force or injury,there is no battery.
What about an assault?
Well, Jim, again, canreasonably be charged with
assault for shooting at Salma.
Jim clearly meant to kill Salma.
The hypo says he was trying toget rid of her as a witness.
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So, this time we definitelyhave the mens rea.
If Jim were to have successfullyshot Salma, he certainly could
have been charged with battery.
The only issue for Jim is that he missed.
Remember, an assault isan attempted battery.
So the fact that Jim tried to commita battery, albeit unsuccessfully,
means he is culpable for assault.
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In all, Jim can reasonably becharged with two counts of assault
for the actions he took that day.
Now, I want to note that the question islikely to be phrased a bit differently
on the exam, and you may want to approachyour answer slightly differently as well.
The exam writers are likely to simply askwhat crimes Jim might be charged with.
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In that case, you'll want togo beyond assault and battery
to analyze any possible crime.
If the question is that general, anddoesn't ask about specific crimes,
you also won't want to spend muchtime analyzing crimes for which
Jim cannot reasonably be charged.
Because we are reviewing battery today,it was important to discuss why Jim
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could not be charged with battery.
In answering a broader exam question,you can either skip the analysis of
battery altogether, or depending on howmuch time you have, you can dispose of
battery in a sentence or two, simplycalling out the elements that are missing.
I hope going through a question togetherhelped you feel more confident in your
ability to identify and analyze thespecific crimes of assault and battery.
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Just to solidify your confidenceand understanding, let's look
at one more hypo before we go.
This one too is adaptedfrom a previous bar exam:
"Vicky operates a successfulretail computer sales business
out of the garage of her house.
Vicky told Dan that she intendedto go on vacation some days later.
Dan subsequently informed Eric of Vicky'sintended vacation and of his plan to take
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all of her computers while she was away.
Eric told Dan that he wanted nothing todo with taking the computers, but that
Dan could borrow his pickup truck ifDan needed to carry the computers away.
While Vicky was scheduledto be away on vacation, Dan
borrowed Eric's pickup truck.
Late that night, Dan drove thetruck over to Vicky's house
and broke into her garage.
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Vicky, who had returned home earlyfrom her vacation, was awakened by
a noise in her garage, opened thedoor connecting the garage to the
house, and stepped into the garage.
When she saw Dan loading computersinto the back of the truck, she stepped
between Dan and the truck and yelled,'Stop, thief!' Dan pushed Vicki out of
the way, ran to the truck and drove off.
Can Dan reasonably be chargedwith assault and/or battery?"
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What do you think?
This is a slightly different situation.
Clearly, no grave injuriesand no deadly weapons.
Dan didn't even know Vicky would be home.
His main purpose was to steal from her.
But as we know from both tortsand criminal law, you don't
escape culpability just becausesomething unexpected happened.
So, do you think Dan canreasonably be charged with battery?
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Battery is the intentional unlawfulapplication of physical force
to another person that resultsin injury or offensive contact.
As we know, mens rea is required.
But battery is a general intentcrime, meaning there is no
requirement that the defendantintend to cause injury to the victim.
He must only intend to commit thephysical altercation that constitutes
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the force and resulted in the harm.
Here, Dan physically shoved Vickyout of the way as he was escaping.
There is no indication thatDan accidentally shoved Vicky.
In fact, it seems clear that heintended to shove her, because doing
so allowed him to get Vicky out ofhis way and escape in his truck.
The big question here iswhether that force resulted
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in injury or offense to Vicky.
All we have to go on is the factsin the hypo, and they are unclear.
When you are dealing with unclear factsor facts that could go either way on an
exam, this is a great opportunity for youto show your legal reasoning and analysis.
For example, you might say somethinglike, "Based on the facts, it is
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unclear whether Dan's physical forcecaused offense or injury to Vicky.
It is doubtful, though not impossible,that a shove caused injury.
Depending on how hard or in what manner heshoved her, it may have caused offense.
If the shove caused injury or offense, Dancan reasonably be charged with battery.
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If not, the charge should not be made."
And finally, we have assault.
In this instance, I don't think acharge of assault would be reasonable.
Again, Vicky's presence surprised Dan.
There is no indication that he wentinto her garage intending to commit a
battery, so it would be hard to arguethat he should be charged with assault
for an attempted but failed battery.
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There is also no indication Danintended to threaten Vicky in any way
or cause her anticipation of a battery.
Assault is not likely astrong charge in this case.
Again, don't forget that on an exam,the test writer will likely be looking
for you to address any possiblecrimes which Dan could be charged.
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Noting that Dan had no intention ofinteracting with Vicky, but did intend to
abscond with her property, it's probablya good idea to focus primarily on property
crimes, though don't forget battery.
The framing of these questions meansthat it's important for you to have a
strong grasp of all substantive crimes,so you can quickly and comprehensively
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analyze the full range of possibilities.
Don't worry; we have podcaststhat cover many of them, so
be sure to check those out.
That's all we have time for today.
Keep reviewing substantive criminallaw and practicing hypos, and
soon you'll be able to crank outcriminal law questions in your sleep.
If you enjoyed this episode of theLaw School Toolbox podcast, please
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If you have any questions orcomments, please don't hesitate
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Thanks for listening, and we'll talk soon!