482: Listen and Learn -- Assault and Battery (Crim Law)

Alison also runs The Girl's Guide to Law School. If you enjoy the show, please leave 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 contact form on LawSchoolToolbox.com, and we'd love to hear from you. And with that, let's get started. Today, we're covering a few crimes that don't result in the death of the victim - assault and battery.

A quick note that assault and battery are topics covered in Torts as well. And we have "Listen and Learn" episodes on that. It's a great reminder that the law could be very interconnected. Assault and battery can both be crimes and they can be intentional torts - that is, both civil and criminal law. As I said, we're focusing on the criminal law side of assault and battery today. We hear about assault and battery a lot outside of law school.

I think nearly every American has at least heard the term. It comes up in almost every legal drama, on the news, and in many other places. The problem is, the terms aren't usually 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 application of force; [2] directly or indirectly 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 injures or offends, whether on a person or to their clothes or even their personal things is battery. But this is criminal law, so we can't forget the mens rea required to prove a battery is quite broad as well.

Battery is a general intent crime, meaning the prosecution need only prove that the unlawful act itself was intended. Intent to cause injury is not required. It doesn't matter whether the defendant meant to hurt or offend anyone. All the prosecution has to show is that they meant to commit the act that caused the harm. So, if battery is a force that causes harm, what is assault?

Assault is either, [1] an attempted battery; or [2] the intentional creation of a reasonable apprehension of imminent bodily harm to a person. So, if the crime would be battery but no one got hurt, that could be charged as assault. You can also think of assault as the threat 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 when what actually occurred is a battery.

Maybe you've seen this too: A character in a TV show is physically attacked and injured, and they talk about the character being assaulted. Now you know what they really mean is battery. So, let's test your newfound expertise a bit by looking at some hypotheticals. These hypos are adapted directly from past bar exams, so they are a great example of what you will actually see a need to analyze on an exam: "Jim and Fred armed themselves with handguns and drove to a store.

They both went into the store, drew their guns and demanded that Salma, an employee, give them the store's money. After Sama handed Jim the money, he nervously dropped his gun, the gun discharged when it hit the floor, and the bullet hit and killed Chris, a store customer. Salma then got a shotgun from under the counter and shot Fred, killing him. Jim picked up his gun, ran out of the store and drove back to his apartment. Later that evening, Jim saw Salma while walking down Park Street.

Thinking that he could eliminate her as a witness, Jim shot at Salma with his gun, but the bullet missed her. Jim then drove away in his car. Could Jim be charged with assault and/or battery?" Since we're on a Hollywood kick today, let's take it scene by scene, starting with the store. Could Jim reasonably be charged with assault and/or battery regarding the events at the store? The first step in answering this question is to review the rules.

Remember, battery is the unlawful application of force directly or indirectly upon another person, their clothes, or close personal belongings, that results in injury 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 she cannot be the victim of a battery. Chris was definitely the victim of the use of force on his body that caused him injury.

But the problem is, Jim did not intend to use that force. The hypo tells us that Jim dropped his gun because of his nerves. Now you might be thinking, "Wait a minute, Jim brought a loaded gun into an open store that he intended to rob. How can you argue he did not mean to shoot anyone?" That is an excellent question, and I suggest you review the felony murder rule if you want to consider that even more. And remember, there may be other substantive crimes for which Jim can be charged.

But without the intentionality - the mens rea - the use of force is not unlawful and Jim can't be reasonably charged with battery. So, if not battery, can Jim be charged with assault? As we discussed earlier, assault is either, [1] an attempted or failed battery; or [2] an intent to cause reasonable apprehension of imminent bodily harm or an imminent battery. What do you think?

Can we argue that Jim attempted a battery or intentionally caused Salma or Chris to reasonably apprehend imminent bodily harm? Well, this time I would argue the answer is "yes". By drawing his gun - an inherently dangerous weapon - pointing it at Salma and demanding that she give him the money, he intended Salma to apprehend that if she did not comply, she might be imminently shot, which would certainly amount to an injury caused by an unlawful application of force.

So, I would argue Jim assaulted Salma. Chris appears to just have been an unlucky bystander here. The hypo does not suggest that Jim threatened or attempted to harm Chris. With the information we have, it's unlikely Jim can be charged with assaulting Chris. Okay, so Jim can reasonably be charged with assault for his actions at the store. What about his later interaction with Salma? Can Jim reasonably be charged with assault 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 into an analysis of battery. We can dispose of battery pretty quickly. Since Jim missed Salma, there was no application of force and no injury at all. Without force or injury, there is no battery. What about an assault? Well, Jim, again, can reasonably be charged with assault for shooting at Salma. Jim clearly meant to kill Salma. The hypo says he was trying to get rid of her as a witness.

So, this time we definitely have the mens rea. If Jim were to have successfully shot Salma, he certainly could have been charged with battery. The only issue for Jim is that he missed. Remember, an assault is an attempted battery. So the fact that Jim tried to commit a battery, albeit unsuccessfully, means he is culpable for assault. In all, Jim can reasonably be charged with two counts of assault for the actions he took that day.

Now, I want to note that the question is likely to be phrased a bit differently on the exam, and you may want to approach your answer slightly differently as well. The exam writers are likely to simply ask what crimes Jim might be charged with. In that case, you'll want to go beyond assault and battery to analyze any possible crime.

If the question is that general, and doesn't ask about specific crimes, you also won't want to spend much time analyzing crimes for which Jim cannot reasonably be charged. Because we are reviewing battery today, it was important to discuss why Jim could not be charged with battery.

In answering a broader exam question, you can either skip the analysis of battery altogether, or depending on how much time you have, you can dispose of battery in a sentence or two, simply calling out the elements that are missing. I hope going through a question together helped you feel more confident in your ability to identify and analyze the specific crimes of assault and battery. Just to solidify your confidence and understanding, let's look at one more hypo before we go.

This one too is adapted from a previous bar exam: "Vicky operates a successful retail computer sales business out of the garage of her house. Vicky told Dan that she intended to go on vacation some days later. Dan subsequently informed Eric of Vicky's intended vacation and of his plan to take all of her computers while she was away. Eric told Dan that he wanted nothing to do with taking the computers, but that Dan could borrow his pickup truck if Dan needed to carry the computers away.

While Vicky was scheduled to be away on vacation, Dan borrowed Eric's pickup truck. Late that night, Dan drove the truck over to Vicky's house and broke into her garage. Vicky, who had returned home early from her vacation, was awakened by a noise in her garage, opened the door connecting the garage to the house, and stepped into the garage.

When she saw Dan loading computers into 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 charged with assault and/or battery?" What do you think? This is a slightly different situation. Clearly, no grave injuries and 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 torts and criminal law, you don't escape culpability just because something unexpected happened. So, do you think Dan can reasonably be charged with battery? Battery is the intentional unlawful application of physical force to another person that results in injury or offensive contact. As we know, mens rea is required. But battery is a general intent crime, meaning there is no requirement that the defendant intend to cause injury to the victim.

He must only intend to commit the physical altercation that constitutes the force and resulted in the harm. Here, Dan physically shoved Vicky out of the way as he was escaping. There is no indication that Dan accidentally shoved Vicky. In fact, it seems clear that he intended to shove her, because doing so allowed him to get Vicky out of his way and escape in his truck. The big question here is whether that force resulted in injury or offense to Vicky.

All we have to go on is the facts in the hypo, and they are unclear. When you are dealing with unclear facts or facts that could go either way on an exam, this is a great opportunity for you to show your legal reasoning and analysis. For example, you might say something like, "Based on the facts, it is unclear whether Dan's physical force caused offense or injury to Vicky. It is doubtful, though not impossible, that a shove caused injury.

Depending on how hard or in what manner he shoved her, it may have caused offense. If the shove caused injury or offense, Dan can reasonably be charged with battery. If not, the charge should not be made." And finally, we have assault. In this instance, I don't think a charge of assault would be reasonable.

Again, Vicky's presence surprised Dan. There is no indication that he went into her garage intending to commit a battery, so it would be hard to argue that he should be charged with assault for an attempted but failed battery. There is also no indication Dan intended to threaten Vicky in any way or cause her anticipation of a battery. Assault is not likely a strong charge in this case.

Again, don't forget that on an exam, the test writer will likely be looking for you to address any possible crimes which Dan could be charged. Noting that Dan had no intention of interacting with Vicky, but did intend to abscond with her property, it's probably a good idea to focus primarily on property crimes, though don't forget battery.

The framing of these questions means that it's important for you to have a strong grasp of all substantive crimes, so you can quickly and comprehensively analyze the full range of possibilities. Don't worry; we have podcasts that cover many of them, so be sure to check those out. That's all we have time for today. Keep reviewing substantive criminal law and practicing hypos, and soon you'll be able to crank out criminal law questions in your sleep.

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