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64.1 Accomplice Liability: Intent And Knowledge Elements

    64.1.1 Accomplice Liability Requires A Specific Intent Mens Rea
    64.1.2 Accomplice Liability: Requirement Of Intent To Facilitate The Crime
    64.1.3 Accomplice Must Intend To Encourage Or Aid And Abet The Act Committed By The Perpetrator
    64.1.4 Accomplice Liability: Innocent Acts Which Aid Commission Of The Crime Not Sufficient
    64.1.5 Accomplice Liability: Negation Of Knowledge Or Intent By Mental Impairment And/Or Voluntary Intoxication
    64.1.6 Accomplice Liability: Liability For Use Of Weapon Requires Knowledge That Perpetrator Would Use A Weapon
    64.1.7 Accomplice Liability: Federal Circuit Model Instructions And Notes

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    64.1.1    Accomplice Liability Requires A Specific Intent Mens Rea

PRACTICE NOTE:  In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, that he seek by his action to make it succeed.’ [Citation]." (Nye & Nisen v. U.S. (1949) 336 US 613, 618-19 [69 SCt 766; 93 LEd 919]; see also Hill v. Equitable Bank (D. Delaware 1987) 655 FSupp 631, 645; see also O'Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 18.01 [Aiding And Abetting - Explained] (West, 5th ed. 2000) [requirement that defendant participate "with the intent to commit the crime"].)

    For example, People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60] held that aiding and abetting requires the defendant to give aid or encouragement with "the intent or purpose of facilitating the perpetrator's commission of the crime." This describes a "specific intent" mens rea because the defendant must commit the act of aiding and abetting with the intent or purpose of achieving an additional consequence. (See People v. Mendoza (CA 1998) 18 C4th 1114, 1128 [77 CR2d 428].) If it were a general intent, then it would be enough that the defendant actually committed an act which aided and abetted the perpetrator. But Beeman clearly holds that such a general intent is not sufficient. (Ibid.)

    Moreover, the specific intent mens rea of aiding and abetting remains the same regardless of whether the substantive offense requires specific or general intent. (Mendoza, 18 C4th at 1130-32.)

    Mendoza is consistent with the 9th Circuit which has described aiding and abetting as a "specific intent crime." (See U.S. v. Andrews (9th Cir. 1996) 75 F3d 552, 555; see also U.S. v. Bancalari (9th Cir. 1997) 110 F3d 1425, 1430.) According to these cases, to sustain a conviction for aiding and abetting, the evidence must show that the defendant "specifically intended to facilitate the commission of [the perpetrator's] crimes...." (Andrews, 75 F3d at 555.)

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

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    64.1.2    Accomplice Liability: Requirement Of Intent To Facilitate The Crime

RATIONALE: Without an exculpatory instruction the jury may not correctly understand the intent element for accomplice liability.

POINTS AND AUTHORITIES: Accomplice liability requires the defendant to willfully associate himself with the criminal venture and to seek to make it succeed through some action on his part. (U.S. v. Hanson (10th Cir. 1994) 41 F3d 580, 582-83; see also People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; People v. Lauria (CA 1967) 251 CA2d 471, 483 [59 CR 628] [telephone answering service did not aid and abet prostitute where answering service knew of prostitution but did not intend to aid]; State v. Soares (HI 1991) 815 P2d 428, 430 [accomplice conviction reversed for failure of accomplice instruction to include a mens rea element]; People v. Kelly (MI 1985) 378 NW2d 365, 377-78, Levin, J., concurring in part and dissenting in part [defendant’s knowledge that the principal intends to commit a crime is not necessarily sufficient to convict the defendant as an aider and abettor]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) §6.7b-f; but see People v. King (MI 1995) 534 NW2d 534, 537 [aiding and abetting requires either intent that the crime be committed or knowledge that the principal intends to commit the crime].)

    In sum, the jury should be instructed that the prosecution has "the burden to prove the specific intent to promote or facilitate the commission of the [crime]." (People v. Ramirez (IL 1968) 236 NE2d 284, 288; see also Nye & Nissen v. United States (1949) 336 US 613, 619 [69 SCt 766; 93 LEd 919]; United States v. Peoni (2nd Cir. 1938) 100 F2d 401, 402; United States v. Alexander (7th Cir. 1955) 219 F2d 225, 227; Johnson v. United States (8th Cir.1952) 195 F2d 673, 675.)

    "The failure to instruct on [such] intent constitutes plain error. [Citation.]" (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 4.01 [Aiding And Abetting], commentary (1991).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

Wharton’s Criminal Law (West, 15th Ed. 1993) § 38, pp. 225-30 ["...absence of mens rea precludes one from being an accomplice"].

Caplow & Griffin, Multidefendant Criminal Cases: Federal Law and Procedure (West, 1998) § 1:3.

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

    I have just told you about the crime of [e.g., bank robbery]. For you to find someone guilty of [bank robbery], it is not necessary that you find that he actually [robbed the bank] himself. It is enough if he intentionally helped someone else [rob the bank].

    To find ________ guilty of [bank robbery], therefore, you must be convinced that the government has proven each of these things beyond a reasonable doubt:

    First, that __________ helped [name of principal] commit [bank robbery].

    Second, that _______ intended to help [name of principal] commit the [robbery].

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTIONS 47A [Aiding And Abetting] (1988).]

    A person aids and abets the [commission] [or] [attempted commission] of a crime when he or she,

    1.     By act or advice aids, promotes, encourages or instigates the commission of the crime,

    2.     With knowledge of the unlawful purpose of the perpetrator and,

    3.     With the intent or purpose of committing or encouraging or facilitating the commission of the crime.     

[See People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 3.01 [Aiding And Abetting–Defined] (West, 6th Ed. 1996).]

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    64.1.3    Accomplice Must Intend To Encourage Or Aid And Abet The Act Committed By The Perpetrator

    See FORECITE National™ 64.7.3 [Accomplice Liability: Assistance Or Encouragement To Reckless Or Negligent Conduct].

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

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RATIONALE: The instructions should assure that the jury does not find accomplice liability because the defendant committed an act which, without intent to do so, aided the perpetrator.

POINTS AND AUTHORITIES: Even if the defendant unintentionally aids or encourages the perpetrator, accomplice liability is not established. (See State v. McCalpine (CT 1983) 463 A2d 545, 551; but see State v. Crosswell (CT 1992) 612 A2d 1174, 1182-83 [McCalpine was "dictum;" "recklessness" satisfies mental state for accomplice liability when that mental state is consistent with definition of the underlying offense]; see also FORECITE National™ 64.1 [Accomplice Liability: Intent And Knowledge Elements].)

    See also FORECITE National™ 64.2.4 [Mere Presence Which Assists Commission Of The Crime Is Not Sufficient For Accomplice Liability].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

SAMPLE INSTRUCTION # 2:

    It is [a] [the] defense theory that even if the defendant committed [an act] [acts] that aided the commission of the crime, [the act] [those acts] were not committed with the knowledge and intent required to convict the defendant as an [accomplice] [aider and abettor].

    If, after consideration of all the evidence, you have a reasonable doubt that the defendant had the required knowledge and intent to facilitate the commission of the crime committed by ____________________ (perpetrator), you must vote to find the defendant not guilty, even if the defendant's acts actually encouraged and/or facilitated commission of the crime.

[Cf. CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.19 [General Jury Inst.-Accessories and Accomplices] ¶ 2, sent. 1 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]

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RATIONALE: The mens rea for accomplice liability includes both knowledge and intent to facilitate the commission of the offense. Hence, when appropriate, a defense theory instruction should be given on the negation of this mens rea by intoxication and/or mental impairment.

POINTS AND AUTHORITIES: Aiding and abetting requires a mens rea which may be negated by intoxication.  (See People v. Mendoza (CA 1998) 18 C4th 1114, 1131-33 [77 CR2d 428]; see also State v. Warren (KS 1992) 843 P2d 224, 228-29; Commonwealth v. Parker (MA 1988) 522 NE2d 924, 925 [jury may not be precluded from considering defendant’s mental impairment or intoxication in determining "joint venture" liability].) Hence, specific instruction relating intoxication to aiding and abetting should be given on request. (See e.g., U.S. v. Sayetsitty (9th Cir. 1997) 107 F3d 1405, 1413-14 [even absent due process right to defense of voluntary intoxication, failure to instruct on negation of aiding and abetting mens rea under state law was plain error]; Mendoza, 18 C4th at 1131-33; State v. Sterling (KS 1984) 680 P2d 301, 305; State v. McDaniel and Owens (KS 1980) 612 P2d 1231, 1238; PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 54.05 [Principles Of Criminal Liability-Responsibility For Crimes Of Another] p.116 (Kansas Judicial Council, 3rd ed. 1999) ["[w]here evidence indicates defendant could only be found guilty as an aider or abettor, specific intent is an issue, and voluntary intoxication may indicate absence of required intent or state of mind and be a defense"].)

    The same analysis should apply to a mental defect, disease or disorder which may have negated the required knowledge and/or intent. (FORECITE National™ 256.7 [Mental, Medical Or Physical Impairment Of Defendant].)

    Moreover, as with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity, alibi, unconsciousness or self defense, the jury should also be instructed that the defendant need only raise a reasonable doubt that the mens rea was proven. (See FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 4.3].

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

See also Federal Judicial Center, Pattern Criminal Jury Instruction 47A.

    In deciding whether the prosecution has proven the intent and knowledge elements necessary to convict the defendant as an aider and abettor, consider any evidence of voluntary intoxication separately or in combination with any evidence of defendant's [mental disease] [mental defect] [and] [or] [mental disorder].

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.21 [Voluntary Intoxication–When Relevant To Specific Intent] and 4.21.2 [Voluntary Intoxication--Aider And Abettor] (West, 6th Ed. 1996).]

    Consider any evidence of voluntary intoxication in deciding whether a defendant, alleged to be an aider and abettor, had the required intent and mental state.

[Cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.21.1 [Voluntary Intoxication–Trial With General And Specific Intent Crimes] ¶ 2, p. 194 (West, 6th Ed. 1996); PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 54.12 [Principles Of Criminal Liability-Voluntary Intoxication-General Intent Crime] p. 125 (Kansas Judicial Council, 3rd ed. 1999).]

    To be guilty as an aider and abettor the defendant must act with knowledge of the unlawful purpose of the perpetrator and with the intent to encourage or facilitate the perpetrator's unlawful purpose.    

    If from all the evidence you have a reasonable doubt whether the defendant [had the knowledge necessary for] [formed such specific intent], you must give the defendant the benefit of that doubt and find that [he] [she] did not have such [knowledge or] [intent].

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RATIONALE: When there is an issue as to whether the aider and abettor should be liable for the perpetrator's use of a firearm special instruction may be necessary so the jury will understand the need to find that the aider and abettor had knowledge that a firearm would be used.

POINTS AND AUTHORITIES: If the accomplice did not know that the perpetrator was going to use a firearm then the defendant should not be liable for use of the firearm as an aider and abettor. (See U.S. v. Batt (D.Kan. 1993) 811 FSupp 625, 626-28 [error to permit jury to convict defendant if codefendant's carrying of a firearm was reasonably foreseeable because instruction permitted jury to convict defendant upon negligence standard rather than criminal standard]; see also People v. Butts (CA 1965) 236 CA2d 817, 837 [46 CR 362]; Commonwealth v. Claudio (MA 1994) 634 NE2d 902, 908; Commonwealth v. Watson (MA 1983) 447 NE2d 1182, 1188; Key v. State (TN 1978) 563 SW2d 184, 186 [defendant apparently did not know his accomplice had a firearm]; but see People v. Montes (CA 1999) 74 CA4th 1050, 1055-56 [88 CR2d 482] [criticizing Butts]; see also FORECITE National™ 65.4.2 [Natural And Probable Consequences: Jury Should Only Consider Circumstances Known To The Defendant At The Time Of The Alleged Aiding And Abetting].)

    For example, in U.S. v. Dinkane (9th Cir. 1994) 17 F3d 1192, 1194-5, the evidence showed that the defendant, Dinkane, was seen "casing" a bank. (Id. at 1194.) About fifteen minutes later, Dinkane pulled his car up in front of the bank and three men got out of it. (Id.) The three men entered the bank, pulled out their guns, and robbed the bank. (Id.) Dinkane was charged with armed bank robbery on an aiding and abetting theory. (Id. at 1195.)  Dinkane was observed prior to the robbery, and although Dinkane knew after the robbery that guns had been used, there was no testimony that could support an inference that Dinkane knew of the weapons before the robbery. (Id. at 1198.) Hence, "[t]he evidence therefore did not establish Dinkane's knowing and intentional participation in an essential element of armed bank robbery...." (Id.)

See generally, FORECITE National™ 64.1.7 [Accomplice Liability: Federal Circuit Model Instructions And Notes].

    To establish _________ (name of alleged accomplice)'s liability for __________ (name of perpetrator)'s [alleged] use of a weapon the prosecution must prove beyond a reasonable doubt that ____________ (name of alleged accomplice) knew* that ____________ (name of perpetrator) [would use] [was intending to use] the weapon.  

    If, after consideration of all the evidence, any juror who has a reasonable doubt that the defendant had the required knowledge must give [him] [her] the benefit of that doubt and vote to find the defendant not guilty.

* If liability is based on reasonable foreseeability see FORECITE National™ 65.4 [Instruction Requirements].

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See 1st Circuit Pattern Jury Instructions - Criminal 4.02.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.98.

See also 6th Circuit Pattern Jury Instructions - Criminal 4.01.

See also 7th Circuit Federal Jury Instructions - Criminal 5.06.

See also 8th Circuit Model Jury Instructions - Criminal 5.01.

See also 9th Circuit Model Jury Instructions - Criminal 5.1.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 7.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 47A.