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Criminal Law Assault Around the Country

If we use a gradient system of distinguishing factors that occur when a defendant is convicted of second degree assault, we can provide certainty and predictability and increase the chance that justice is done. For instance, we can distinguish a possible third or fourth degree assault by confining those instances to crimes that do not result in medical treatment or physical injury. It will be difficult to define the types of injury that fall into each degree, but over time case law will grow to help make that distinction for each degree. We already have an assault distinction concerning whether a firearm is used, but what about other weapons or objects that exponentially increase the chance of injury? Tis is the time to think creatively about how to clarify and define this broad assault arena. Another possibility is to carve out a crime for those mutually engaged in a fight (ie: when consent is given), which should treated less severely than a blindside attack, for instance. Te following is a list of states that employ some form of

“third degree assault” charge, including less severe penalties. I have indicated where the legislature has codified assault even further by including a fourth degree assault: Alabama, Alaska (4th degree), Arkansas, Colorado, Connecticut, Delaware,

Hawaii, Kentucky (4th degree), Minnesota (4th degree), Missouri, Nebraska, New Jersey (see below), New York, Ohio (which has a four level assault system: felonious, aggravated, simple and negligent), Oregon, and Washington (4th degree). As we see movement toward a codification of this typically common law crime, we will see states grapple with how to properly clarify this crime. Te enumeration of the states above shows a very real need to define assault in a meaningful way so that prosecutors can have more guidance in the appropriate charges to bring forward. In particular, New Jersey has a very detailed assault

law, NJSA § 2C:12-1. Subsection (a) defines simple assault, subsection (b) defines aggravated assault, subsection (c) defines assault via automobile or boat, subsection (d) defines assault in a nursing home or retirement facility [subjection (e) is deleted] and subsection (f) describes an assault that is committed in the presence of children “at a school or community sponsored youth sports event .” I kindly refer to this as the “overbearing parent” law.

Conclusion Can we say for certain that the second degree maximum

National Legal Research Group CHARLOTTESVILLE, VIRGINIA

period of imprisonment is ten years because it stems from the old violent definition of “maliciously cut, stab or wound?” Probably not. Can we say that the legislature intends for second degree assault to be used a flexible catchall for “sentencers” to issue punishments of their liking? Again, no, but it has been used that way. Clarification is in order so that prosecutors and police officers are forced to charge a more accurate crime. By doing so, a defendant would have much less chance of receiving an unfair sentence, and thereby give those advising defendants, namely defense attorneys, much more certainty on how to advise their clients. 

Biography Peter L. Casciano is an associate attorney at Andalman

& Flynn, PC, located in Downtown Silver Spring, and a proud member of the Maryland Association for Justice, Maryland Criminal Defense Attorney’s Association, and Montgomery County Bar, Criminal Section. He graduated from the Catholic University of America, Columbus School of Law and received a BA from Villanova University. He practices law in the following areas: Criminal Defense, Family Law and Disability Benefits Law. He can be reached at (301) 563-6685, ext. 123 or Please also visit his Firm’s blog at

40 Trial Reporter / Summer 2011

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