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VOLUME 5 - CHAPTER 43

    43.1    Mere Association Insufficient For Criminal Liability

PRACTICE NOTE: "Association with persons involved in crime is not enough, standing alone, to establish liability." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 1.01(6); see also U.S. v. Jaramillo (5th Cir. 1995) 42 F3d 920, 923 [mere presence and association insufficient for aiding and abetting]; U.S. v. Lee (6th Cir. 1993) 991 F2d 343, 348 [mere association with members of a conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator]; U.S. v. Vasquez-Chan (9th Cir. 1992) 978 F2d 546, 552 [aiding and abetting requires intentional assistance in the illegal purpose].)

    See FORECITE National™ 44.4 [Mere Presence Or Association Insufficient To Create Duty To Act].

    See also FORECITE National™ 251.6.1 [Mere Presence And No Legal Duty To Act].

    See also FORECITE National™ 251.6.3 [No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)].

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 VOLUME 5 - CHAPTER 43

PRACTICE NOTE: A "basic premise" which underlies the whole of Anglo-American criminal law is that "there can be no criminal liability for bad thoughts alone...." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 1.2(b) p. 10.)

    "Guilty intent is not a sufficient basis for criminal liability; there must be an act or failure to act where there is a legal duty to do so." (Cook and Hermann, Criminal Defense Checklist (West, 1998 ed.) § 1.01 (1), p. 2; Wharton’s Criminal Law (West, 15th ed. 1993) § 25.).)

    "[I]t is an assumption of our system of criminal justice so rooted in the traditions and conscience of our people as to be ranked as fundamental, that no person may be punished criminally save upon proof of some specific illegal conduct. (Suniga v. Bunnell (9th Cir. 1993) 998 F2d 664, 669.)

    See FORECITE National™ 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].

    See also FORECITE National™ 66.2.7 [Attempt: Intent, Without An Act, Is Not Sufficient].

    See also FORECITE National™ 97.5.5 [Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Subsequent Criminal Intent Not Sufficient].

RESEARCH NOTES:

LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.2a-c.

Moore, "Act In Crime: The Philosophy of Action and Its Implications for Criminal Law" (Oxford: Clarendon Press, 1993).

Fletcher, On the Moral Irrelevance of Bodily Movements, 142 U. Pa L Rev. 1443 (1994) [comments on Moore’s book].

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 VOLUME 5 - CHAPTER 43

    PRACTICE NOTE: It is established that a person cannot be held criminally liable for unlawful intent only. (See LaFave & Scott, Substantive Criminal Law § 3.2(b) (West, 1986); see also FORECITE National™ 43.2 [Criminal Intent Is Not Alone Sufficient To Convict]; see also FORECITE National™ 66.2.7 [Attempt: Intent, Without An Act, Is Not Sufficient].)

    The mere fact that the defendant also has the power to commit the crime should not change the situation. (See e.g., FORECITE National™ 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].) Power should not itself constitute the necessary act for crimes requiring an affirmative act. (See generally, FORECITE National™ Chapter 43 [Criminal Act].)

    See also FORECITE National™ 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].

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 VOLUME 5 - CHAPTER 43

    See FORECITE National™ 66.3.1 [Defense Theory That Factual Impossibility Precludes Conviction For Attempt].

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 VOLUME 5 - CHAPTER 43

    See FORECITE National™ 45.4 [Concurrence Of Act And Intent].