Criminal Assault in Maryland
The crime of assault is one of the most common
criminal charges that we see at Baldwin & Briscoe, P.C. Assaults come in two degrees, First Degree
Assault, which is a felony, and Second Degree Assault, which is a misdemeanor. We see many more second degree assault
charges than first degree assault charges.
Second Degree Assault
There are three different types of assaults,
or fact scenarios under which the state may charge a defendant with the crime
of second degree assault, under Maryland law.
While there is only one crime, the state has several different ways by
which it can attempt to secure a conviction.
Intent to Frighten – An Intent to Frighten type assault requires
that the state prove three elements, and sometimes a fourth, depending on the
1. The state must prove that the defendant
committed an act with the intent to place the victim in fear of immediate
physical harm or offensive physical contact;
2. The state must prove that the defendant
had the ability at that time, to bring about the offensive physical contact or
physical harm; and
3. The state must prove that the victim reasonably
feared immediate offensive physical contact or physical harm.
4. [Depending on the case] Only when the evidence
suggests the possibility of self-defense, then the state must also prove that
the defendant’s actions were not legally justified.
Attempted Battery – An attempted Battery assault requires the
state to prove three elements:
1. That the Defendant actually tried to
cause immediate offensive physical contact or physical harm to the victim.
2. That the defendant intended to bring
about offensive physical contract or physical harm; and
3. That the defendant’s actions were not consented
to by the victim and were not legally justified.
Battery – A Battery assault requires the state to prove three
1. That the defendant caused offensive physical
contact with or physical harm to the victim;
2. That the contact was the result of an intentional or reckless
act of the defendant and was not accidental; and
3. That the contact was not consented to by
the victim and not legally justified.
First Degree Assault
In order to prove the
crime of First Degree Assault, the State must prove all of the elements of
second degree assault, and must also prove that either the defendant used a
firearm to commit assault; or that the defendant intended to cause serious
physical injury in the commission of the assault.
The criminal penalty for
a second degree assault charge is imprisonment not exceeding 10 years or a
fine, not exceeding $2,500, or both.
The penalty for a first
degree assault charge is imprisonment not exceeding twenty-five years.
There are several
affirmative defenses that may be available to a defendant who is charged with
assault. An affirmative defense is a
justification for the conduct. It says
to the court that “Even though I did what I’ve been charged with, I should not
be found guilty of a crime because I was justified in doing it.” The law provides several legal justifications
for committing an assault. Where an
affirmative defense is raised, the state has the burden of proving, beyond a
reasonable doubt, that the defense does not apply. This means that the state must prove that at
least one of the factors, identified below, for whatever defense is raised is
Self-defense is a complete defense to the crime of assault. The judge or jury must find the defendant not
guilty if four factors are present:
1. The defendant was not the aggressor
2. The defendant actually believed that he or
she was in imminent danger of bodily harm
3. The defendant’s belief was reasonable; and
4. The defendant used no more force than was
reasonably necessary to defend him or herself in light of the threatened or
Defense of Others
Similar to Self-defense, a person may raise the defense that he was acting to
protect one or more other persons. The
defendant is not guilty if four factors are present:
1. The defendant actually believed that the person
he or she was defending was in immediate and imminent danger of bodily harm;
2. The defendant’s belief was reasonable;
3. The defendant used no more force than was reasonably
necessary in light of the threatened or actual force; and
4. The defendant’s purpose in using force was
to aid the person he was defending.
Defense of Habitation
A person may use deadly force to defend their home under some
circumstances. In order to have a valid
defense, all five of the factors listed here must be present.
1. Someone entered or attempted to enter the
2. The defendant believed that the intruder
intended to commit a crime that would involve an imminent threat of death or
serious bodily injury.
3. That the defendant reasonably believed that
the intruder intended to commit such a crime.
4. The defendant believed that the force that
he or she used against the victim was necessary to prevent imminent death or
serious bodily harm; and
5. The defendant reasonably believed that such
force was necessary.
A person may use reasonable, non-deadly force to defend their
property. Three factors must be present
for this defense to apply.
1. The defendant actually believed that a
person was unlawfully interfering, or
was just about to unlawfully interfere with his property;
2. That the defendant’s belief was reasonable;
3. The defendant used no more force than was
reasonable necessary to defend against the victim’s interference with the
In some cases, the state
charges more than one person with an assault arising out of the same
incident. These cases, among others,
present the possibility of securing an acquittal by means of raising a
testimony privilege. There are two types
of privileges that are commonly asserted in assault cases. It’s important to note that a privilege
belongs to the witness/victim, not to the defendant. The defendant cannot force a person to
exercise their privilege, but can benefit if they choose to do so.
Spousal Privilege: The spouse of a person on trial for a crime
may not be compelled to testify as an adverse witness in an assault case. This privilege may only be used one
time. Therefore, if the defendant is
facing a second or subsequent trial for assault and the spouse previously
invoked the privilege, the court can compel them to testify in the later case.
Fifth Amendment Privilege: A person may not be compelled to
testify in violation of his privilege against self-incrimination. This is typically seen where two or more
people are arrested for assault and each is subpoenaed to testify in the other’s
cases. The danger being that once one
person testifies, whatever statements they make can be used in the trial
against them. Any person who is called
to testify in a criminal case, who, by reason of their own conduct faces the
possibility of criminal charges, whether or not those charges are pending,
should serious consider exercising their Fifth Amendment Privilege and not
There are some cases
where the state will be able to meet its burden of proof with respect to the
elements of assault. There are other
cases where there is a strong likelihood that the state will do so. In these cases, it is often in the best
interest of the defendant to enter into a negotiated plea with the state,
rather than taking the case to trial. If
the defendant does not want to take the case to trial, there are two general
alternatives that are commonly available to defendants. Which options is available in any particular
case depend on many factors, including the facts of the case, the prosecuting
attorney and the defendant’s prior criminal record.
1. The case may be placed on the “stet” docket
If the state’s attorney
agrees, a defendant’s case may be put on the stet or inactive docket. Placing a case on the stet docket acts as an
indefinite postponement of the case.
Placing the case on the stet docket means that the defendant does not
have a conviction. A case that has been
placed on the stet docket will be eligible for expungement. Usually a defendant must wait three years to
obtain an expungement. Sometimes a case
is placed on the stet docket with conditions.
A defendant may have to make a donation, attend counseling, pay
restitution, or take some other action in order for the case to remain on the
stet docket. In assault cases, a common
condition of having a case put on the stet docket is that the defendant attend
and successfully complete an anger management program. In some cases, the state will require, as
part of the agreement that the defendant have no contact with the victim.
2. The defendant may be offered a plea agreement
In many cases, the
defendant is not offered a stet and the case is not a good one to take to
trial. The evidence of assault may be
significant and not favorable to the defendant.
This may be the case where the defendant has previously had a case put
on the stet docket, or where the injuries sustained by the victim are severe.
In a first degree assault
case, if the state is going to offer a deal, they will generally offer a plea
to second degree assault. In a second
degree assault case, the plea offer will usually be to second degree assault or
reckless endangerment. Generally when a
defendant takes a plea deal, there is some benefit to the defendant in doing
so. In many cases, the defendant agrees
to plead to a crime that is less severe than what he may be convicted of if the
case goes to trial. In some cases, the
state may only offer a plea to the more serious crime that has been
charged. Nevertheless, it may, in some
circumstances be to the defendant’s benefit to accept a plea.
When a defendant accepts
a plea, the state’s attorney will read facts to the judge that the state would
have offered as evidence at trial. In some
cases, the state will agree to withhold certain facts. This is one reason why a plea may be
advisable in some cases, even without a reduction in charges. For instance, if the state agrees to state
“the defendant punched the victim numerous times” rather than “the defendant
punched the victim seventeen times in the face breaking the victim’s nose and
knocking out three teeth”, it will greatly benefit the defendant in the
case. While this example may see a little
extreme, there are many times when the defendant has done something that he
does not want to have on the record as part of the plea.
If you are facing an
assault charge, you may want to consider enrolling in an anger-management class
prior to going to court. This can help
in both your negotiation with the state and when your case goes before the
The attorneys at Baldwin
& Briscoe have handled many assault cases.
We are familiar with the prosecutors and judges. If you come in for a consultation, we’re
happy to discuss your case, the evidence, the defenses, and the possible and
likely outcomes with you. We may also be
able to recommend steps you can take prior to trial to help get the best
contained on this page is provided as general information and does not
constitute legal advice. The experienced
attorneys at Baldwin & Briscoe, P.C. can assist you if you are facing
criminal charges. There is no
consultation fee for criminal matters.
Call today to schedule a free consultation.
The Law Offices of Baldwin & Briscoe, P.C. also offers these
Foreclosure, Business Law, Civil Litigation, Criminal Defense, Employment,
Disability, and Consumer Rights, Family Law, Government Contracts Law, Intellectual Property, Personal Injury, Real Estate, Social Security
Disability & Workers’ Compensation and Wills, Trusts, & Estates