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64.2 Accomplice Liability: Mere Presence Insufficient

    64.2.1 Accomplice Liability: Mere Presence As Defense Theory -- Right To Instruction On Request
    64.2.2 Accomplice Liability: No Legal Duty To Report Crime
    64.2.3 Standing By During The Offense Is Not Sufficient For Accomplice Liability
    64.2.4 Mere Presence Which Assists Commission Of The Crime Is Not Sufficient For Accomplice Liability
    64.2.5 Accomplice Liability: Relevance Of Mental Impairment To “Mere Presence” Defense
    64.2.6 Accomplice Liability: Silent Approval Of The Crime Not Sufficient
    64.2.7 Accomplice Liability Requires Substantial Participation By The Accomplice
    64.2.8 Accomplice Liability: Mere Presence At The Scene And Intimate Knowledge Of The Crime Are Not Sufficient To Convict
    64.2.9 Accomplice Liability: Mere Association Insufficient
    64.2.10 Mere Presence Aboard A Vessel

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PRACTICE NOTE: When the prosecution relies on accomplice liability, a valid defense theory to such a prosecution is that the defendant was merely present at the scene of the crime and, although the defendant may have had knowledge that a crime was being committed, the defendant did not intend to aid or assist in its commission. (See NCJIC 64.2 [Accomplice Liability: Mere Presence Insufficient].) In such a case, the court should instruct the jury on mere presence as a defense theory, upon request. (See U.S. v. Cordova-Larios (5th Cir. 1990) 907 F2d 40, 42; Commonwealth v. Ortiz (MA 1997) 679 NE2d 1007, 1011; see also NCJIC Chapter 250 [Defenses And Defense Theories: General Issues].)

    "... [M]ere association with a principal or mere presence while criminal activity is going on around one is not enough to establish aiding and abetting, even when combined with knowledge that a crime will be committed." (See U.S. v. Montilla-Rivera (1st Cir. 1997) 115 F3d 1060, 1064; see also United States v. Luciano-Mosquera (1st Cir.1995) 63 F3d 1142, 1150.) "While knowledge is certainly an element of the offense, [citation] (and the facts here abundantly show knowledge), something more, some action to assist the crimes, is needed. [Citation.] To convict [the defendant] of aiding and abetting, the government had to prove that his codefendants committed the crime, and that [the defendant] associated himself with, and participated in the drug transaction as something he wished to bring about, and sought by his actions to make it succeed." (Montilla-Rivera, 115 F3d at 1064; see also United States v. Ruiz (1st Cir.1997) 105 F3d 1492, 1499; Commonwealth v. Ortiz (MA 1997) 679 NE2d 1007, 1011 [jury should be instructed that mere presence coupled with failure to take affirmative steps to prevent crime is insufficient, as is simple knowledge that crime will be committed, even if evidence of such knowledge is supplemented by evidence of subsequent concealment of completed crime]; but see State v. Jackson (OR 1983) 669 P2d 826 [with regard to the instruction "that mere presence at or near the scene is insufficient evidence upon which to base a conviction" that instruction is disapproved--it is a matter to be left to oral argument].)

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

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RATIONALE: When appropriate the instructions should assure the jury understands that accomplice liability cannot be based on the defendant's failure to report a crime.

POINTS AND AUTHORITIES: A person generally does not become an accomplice by refusing to intervene in the commission of a crime ... " (See Fox's Foods, Inc. v. Kmart Corp. (M.D. Pa. 1994) 870 FSupp 599, 610; People v. Luna (CA 1956) 140 CA2d 662, 664 [295 P2d 457] [a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault"]; Webb v. State (GA 1988) 370 SE2d 204, 206; State v. Sullivan (NJ 1962) 185 A2d 410, 416; Commonwealth v. Flowers (PA 1975) 346 A2d 336, 338; see laso LaFave & Scott, Substantive Criminal Law (West, 1986), § 6.7, p. 138.)

    Hence, it has been held to be error to refuse an instruction informing the jury that if the defendant merely stood by at the time of the offense then the defendant is not guilty. (See People v. Woodward (CA 1873) 45 C 293, 294; see also People v. Cressey (CA 1970) 2 C3d 836, 848 [87 CR 699].)

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

USE NOTE: See also NCJIC 33.4.8 [Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven That Possession Was Exclusive]; see also NCJIC 97.3.2 [Receiving/Possession Of Stolen Property: Touching Or Moving Of Stolen Property Not Sufficient] for specific instructions relating this principle to receipt of stolen property.

RESEARCH NOTE:

LaFave & Scott, Substantive Criminal Law (West, 1986), § 6.7, p. 138.

Note, Criminal Law--Common Law Offense of Misprision of Felony Held Not Part of Modern Criminal Law, 54 Harv. L. Rev. 506 (1941).

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

    There is no legal duty to report to the authorities that another person has committed a crime.

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RATIONALE: Without special instruction the jury may erroneously assume that standing by while a crime is committed constitutes sufficient assistance to impose accomplice liability.

POINTS AND AUTHORITIES: Where the prosecution’s case rests primarily on defendant’s presence and nothing more, a mere presence instruction should be given. (U.S. v. Medrano (9th Cir. 1993) 5 F3d 1214, 1218; 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.7, comment (1996 Rev.) [Self-Defense] (2000); see also NCJIC 64.2.1 [Accomplice Liability: Mere Presence As Defense Theory -- Right To Instruction On Request].)

    Hence, it has been held error to refuse an instruction informing the jury that if the defendant merely stood by at the time of the offense then the defendant is not guilty. (See e.g., People v. Woodward (CA 1873) 45 C 293, 294; see also People v. Cressey (CA 1970) 2 C3d 836, 848 [87 CR 699].)

    See also NCJIC 33.4.8 [Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven That Possession Was Exclusive] and NCJIC 97.3.2 [Receiving/Possession Of Stolen Property: Touching Or Moving Of Stolen Property Not Sufficient] for specific instructions relating this principle to receipt of stolen property.

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

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

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RATIONALE: Without an explanatory instruction, the jury may not understand that even if the defendant's presence served to assist the commission of the offense, there is no liability if there was no intent to aid and abet.

POINTS AND AUTHORITIES: "Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor." (In re Jose T. (CA 1991) 230 CA3d 1455, 1460 [282 CR 75]; see also Caplow & Griffin, Multidefendant Criminal Cases: Federal Law and Procedure (West, 1998) § 1:4; LaFave & Scott, Substantive Criminal Law § 3.3 (2d ed. 1986); NCJIC 64.2.3 ["Standing By" During The Offense Is Not Sufficient For Accomplice Liability].)

    However, in some situations the jury may view the presence of another person as actually assisting in the commission of the offense such as where it emboldened the perpetrator. In such situations it is especially important to instruct that mere presence, even if it assists the perpetrator, is not aiding and abetting. (See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.7, p. 138; People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60].)

    Without such an instruction, a juror could quite reasonably conclude that a defendant's presence at the scene aided the commission of the crime, even though the defendant had no intent of doing so. (See State v. Noriega (AZ 1996) 928 P2d 706, 707.)

    Failure to provide such an instruction would implicate the defendant's federal constitutional right to due process and fair trial by jury. (See California v. Roy (1996) 519 US 2 [117 SCt 337; 136 LEd2d 266] [failure to instruct on Beeman intent element recognized as federal constitutional error].)

    See also NCJIC 25.19 [Uncharged Acts To Prove Issues Other Than Propensity]; NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].

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

USE NOTE: Such an instruction may not be appropriate where the defendant is under a duty to act. (See e.g., State v. Austin (SD 1969) 172 NW2d 284, 289 [mother could be aider and abettor by not protecting her child from cruel punishment inflicted by another person].)

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

    Mere presence at the scene of a crime, even if it actually assists in the commission of the crime, is not aiding and abetting unless the defendant had the required intent to facilitate the commission of the offense.

[See People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; State v. Noriega (AZ 1996) 928 P2d 706; see also 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).]

    The mere presence of the defendant at the scene of a crime is not alone sufficient to make [him] [her] an aider and abettor. It makes no difference that the defendant was present and remained silent, or even acquiesced in the commission of the offense, or even mentally approved of the act.

    The presence of a defendant at the scene of a crime is a circumstance which you may consider together with all of the other facts and circumstances in the case.

    In the absence of proof beyond a reasonable doubt of participation, the defendant cannot be convicted on the basis of his presence at the scene of the crime.

[See State v. Ashker (SD 1987) 412 NW2d 97, 107; People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; State v. Noriega (AZ 1996) 928 P2d 706; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-28-6 [Aider And Abettor-Mere Presence At Scene Of Crime Insufficient] (State Bar of South Dakota, 2000).]

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PRACTICE NOTE: A defendant’s federal constitutional due process rights may be violated by the exclusion of defense evidence of mental retardation when the defense at trial was that the defendant was merely present at the scene and did not intentionally aid and abet the perpetrator. (See State v. Gonzales (AZ 1984) 681 P2d 1368, 1372.)

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

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    64.2.6    Accomplice Liability: Silent Approval Of The Crime Not Sufficient

RATIONALE: Without an explanatory instruction the jury may not understand that presence at the scene of the crime is not alone enough to convict the defendant even if he or she acquiesced in or even approved of the crime.

POINTS AND AUTHORITIES: See United States v. Pena (6th Cir. 1993) 983 F2d 71, 72-73 [fact that defendant accompanied driver on car trip, was promised a plane ticket, and knew there was something illegal in car insufficient to sustain conviction for aiding and abetting possession of cocaine with intent to distribute]; State v. Roberts (WA 1996) 908 P2d 892, 899-900; State v. Ferreira (WA 1993) 850 P2d 541, 544; State v. Landon (WA 1993) 848 P2d 724, 728.)

    In other words, "[a]iding, abetting, or assisting are affirmative in their character. It is not sufficient that there is a mere negative acquiescence, not in any way made known to the principal malefactor. The mere presence of a person is not sufficient to constitute him a principal, unless there is something in his conduct showing a design to encourage, incite, or in some manner aid, abet, or assist the actual perpetrator of the crime. [Citation.]" (State v. Marquis (IL 1974) 321 NE2d 480, 488.)

USE NOTE: This instruction may not be appropriate in a situation where the defendant is under a duty to act. (See State v. Austin (SD 1969) 172 NW2d 284, 289 [mother could be aider and abettor by not protecting her child from cruel punishment inflicted by another person].)

RESEARCH NOTES:

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

RELATED FEDERAL MODEL INSTRUCTIONS:

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

SAMPLE INSTRUCTION # 1:

    The mere presence of the defendant at the scene of a crime is not alone sufficient to make [him] [her] an aider and abettor. It makes no difference that the defendant was present and remained silent, or even acquiesced in the commission of the offense, or even mentally approved of the act.

    The presence of a defendant at the scene of a crime is a circumstance which you may consider together with all of the other facts and circumstances in the case.

[See State v. Ashker (SD 1987) 412 NW2d 97, 107; People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; State v. Noriega (AZ 1996) 928 P2d 706; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-28-6 [Aider And Abettor-Mere Presence At Scene Of Crime Insufficient] (State Bar of South Dakota, 2000).]

SAMPLE INSTRUCTION # 2:

    A person who is present at the scene of the crime is not guilty of that crime even if he or she secretly intended to assist in its commission. 

[See generally People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; State v. Noriega (AZ 1996) 928 P2d 706; see also NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 202.20A [Aiding And Abetting- Felony, Misdemeanor.1] ¶ 5 (TRCC, 1999).]

SAMPLE INSTRUCTION # 3:

    Mere presence at the scene of a crime, silent approval of the crime and/or acquiescence in its commission, without participation, does not make a person criminally liable for the crime.

[See People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]; State v. Noriega (AZ 1996) 928 P2d 706; State v. Ashker (SD 1987) 412 NW2d 97, 107; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 2-6 [Principal Defined] ¶ 1, sent. 2 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 202.20A [Aiding And Abetting - Felony, Misdemeanor.1] ¶ 5 (TRCC, 1999).]

SAMPLE INSTRUCTION # 4:

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RATIONALE: Without an explanatory instruction the jury may not understand that the defendant's acts or advice must be substantial to warrant conviction as an aider and abettor.

POINTS AND AUTHORITIES: The common law definition of aiding and abetting in the tort context requires "substantial assistance to the other in accomplishing a tortious result ..." (Fiol v. Doellstedt (CA 1996) 50 CA4th 1318, 1325 [58 CR2d 308].) The elements of a claim for common law aiding and abetting are: "(1) that an independent wrong exist; (2) that the aider or abettor know of that wrong's existence and (3) that substantial assistance be given in effecting that wrong." (Walck v. American Stock Exchange, Inc. (3rd Cir. 1982) 687 F2d 778, 791; see also U.S. v. Walker (DC Dist.) 899 FSupp 14, 16 [an aider and abettor certainly can be held responsible where the aider and abettor intentionally provides substantial assistance to a principal wrongdoer in carrying out one of the specific aspects of the crime].)

    The elements of aiding and abiding liability in the criminal context should be no less than is required under civil law where the standards are typically lower than in the criminal arena. (See generally, NCJIC 65.3.1 [Negligence Standard Violates Fundamental Common Law Principles]; see also NCJIC 270.6 [Reasonable Doubt Standard: Comparison With Lesser Standards].) Accordingly, the jury should be instructed upon the "substantial" element as set forth above as a predicate to imposing criminal liability for aiding and abetting. Moreover, as recognized by the United States Supreme Court, the courts should look to the common law to determine whether the defendant has a vested due process right in a particular defense. (See Montana v. Egelhoff (1996) 518 US 37 [116 SCt 2013; 135 LEd2d 361] [plurality opinion]; see also Schad v. Arizona (1991) 501 US 624 [111 SCt 2491; 115 LEd2d 555].) Under the same reasoning, the defendant should have a due process right to instruction upon the elements of aiding and abetting as established by the common law.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

NOTE: Another way of expressing the substantial participation element is through the element of causation. (See NCJIC Chapter 55 [Causation].)

See generally, NCJIC 305.1.4 [Accomplice Liability: Aiding And Abetting/Accessory Before The Fact].

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

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RATIONALE:  Even if the defendant was present at the scene of the crime and had knowledge of the crime, this is insufficient for accomplice liability.

    Mere presence at the scene of the crime and intimate knowledge of the offenses merely make a person an eye witness and do not, without more, permit conviction of the person as an aider and abettor of the crime.

[See People v. Lewis (CA 2001) 26 C4th 334, 369 [110 CR2d 272].]

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