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VOLUME 7 - CHAPTER 77
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77 Table of Contents
77.5 Assault With Intent To Murder
77.5.3 Assault With Intent To Murder: Defenses And Defense Theories
77.5.3.1 Aggravated Assault: Intoxication As Defense Theory
77.5.3.2 Assault With Intent To Murder: Self Defense
77.5.3.3 Assault With Intent To Murder: Battered Person Syndrome
77.5.3.4 Assault With Intent To Murder: Mental, Medical Or Physical Impairment Of Defendant
77.5.3.5 Assault With Intent To Murder: Additional Defenses And Defense Theories
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VOLUME 7 - CHAPTER 77
77.5.3.1 Assault With Intent To Murder: Intoxication As Defense Theory
RATIONALE: An explanatory instruction may be necessary so the jury understands the defense theory that intoxication may negate the intent or knowledge element of aggravated assault.
POINTS AND AUTHORITIES: Although intoxication is generally not a defense to simple assault (see FORECITE National™ 77.1.2.3 [Simple Attempted-Battery Assault: Intoxication Not A Defense]), it may be a defense to aggravated assault if there is an added knowledge or intent element. (See e.g., Bartley v. State (FL 1997) 689 So2d 372, 373 [counsel ineffective for failing to investigate intoxication as defense to aggravated assault]; Commonwealth v. Moore (MA 1994) 632 NE2d 1234, 1238 [voluntary intoxication may be defense to offense of assault and battery of police officer, which requires specific intent]; but see State v. Humphrey (KS 1995) 905 P2d 664, 673 [voluntary intoxication is not a defense to aggravated assault].)
For example, "assault and battery on a police officer requires a specific intent to strike a police officer; more particularly, it has two additional elements beyond those required for simple assault and battery [citation] --the officer must be engaged in the performance of his duties at the time and the defendant must know that the victim was an officer engaged in the performance of his duties. [Citation.]" (Moore, 632 NE2d at 1238.) Hence, the jury should be instructed that intoxication may negate these added mens rea elements. (Ibid.)
See also FORECITE National™ 256.6.2.5 [Does Due Process Require Consideration Of Intoxication In Determining All Mental Elements Of the Charge?].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].
RELATED FEDERAL MODEL INSTRUCTION:
See generally, FORECITE National™ 77.5.1.2 [ Assault With Intent To Murder: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The charged offense requires that the defendant assaulted ______________ (alleged victim) with the [intent to] _______________ (insert element of knowledge or intent, e.g., to inflict serious bodily injury).
If you have a reasonable doubt whether the defendant [intended to _____________] [knew that ___________________] you must give the defendant the benefit of that doubt and return a verdict of not guilty.
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VOLUME 7 - CHAPTER 77
77.5.3.2 Assault With Intent To Murder: Self Defense
See FORECITE National™ 253.4 [Self Defense, Defense Of Others, Defense Of Property -- Complete].
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VOLUME 7 - CHAPTER 77
77.5.3.3 Assault With Intent To Murder: Battered Person Syndrome
See FORECITE National™ 256.1 [Battered Person’s Syndrome].
See FORECITE National™ 253.1 [Battered Person’s Syndrome].
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VOLUME 7 - CHAPTER 77
77.5.3.4 Assault With Intent To Murder: Mental, Medical Or Physical Impairment Of Defendant
See FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].
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VOLUME 7 - CHAPTER 77
77.5.3.5 Assault With Intent To Murder: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)