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VOLUME 6 - CHAPTER 64
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64.3 Accomplice Liability: Guilt Of Perpetrator As Required Element

    64.3.1 Requirement That Guilt Of Perpetrator Be Proven: Accomplice Tried Separately
    64.3.2 Requirement That Guilt Of Perpetrator Be Proven: Joint Trial Of Perpetrator And Accomplice
    64.3.3 Requirement That Defendant Participated With, Or Was Aided By, Another Person
    64.3.4 Propriety Of Accomplice Liability When Perpetrator Acquitted
    64.3.5 Accomplice Liability For Person Incapable Of Committing the Substantive Crime As A Perpetrator
    64.3.6 Accomplice Liability For Murder: Perpetrator Must Intend To Kill
    64.3.7 No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill

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RATIONALE: Because the guilt of the perpetrator is an element of accomplice liability, when the defense relies upon a theory that the perpetrator has not been proven guilty beyond a reasonable doubt, an instruction is appropriate that focuses the jury upon that theory.

POINTS AND AUTHORITIES: Federal Authority: An essential prerequisite to the defendant's guilt as an aider and abetter is proof beyond a reasonable doubt of the guilt of the alleged perpetrator.  (United States v. Martin, 747 F2d 1404 (11th Cir. 1984) [reversals required because court held that evidence showed that the only other persons that defendant could possibly have aided or abetted did not commit an offense as principals, but court had given aiding and abetting instruction nonetheless]; United States v. Clark, 980 F2d 1143, 1146 (8th Cir. 1992); United States v. Orozco-Prada, 732 F2d 1076, 1081 (2nd Cir. 1984); United States v. Hudson, 717 F2d 1211, 1214-15 (8th Cir. 1983); United States v. Mehrmanesh, 689 F2d 822, 835 (9th Cir. 1982); United States v. Upshaw, 685 F2d 1202, 1204 (9th Cir. 1982); United States v. Perry, 643 F2d 38 (2nd Cir. 1981); Feldstein v. United States, 429 F2d 1092 (9th Cir. 1970).)

    This is so because "[a]ccomplice liability is 'derivative' that is, it results from an act by the perpetrator to which the accomplice contributed." (Emphasis added.)  (Nye & Nissen v. United States (1949) 336 US 613 [69 SCt 766; 93 LEd 919];United States v. Vasquez-Chan, 978 F2d 546, 552 (9th Cir. 1992); United States v. Wellington, 754 F2d 1457, 1464 (9th Cir. 1985); United States v. Mehrmanesh, 689 F2d 822, 835 (9th Cir. 1982); United States v. Upshaw, 685 F2d 1202, 1204 (9th Cir. 1982).)

State Authority:  For a defendant to be convicted as an aider and abettor, the government must prove beyond a reasonable doubt all of the elements of the underlying crime, including commission of the crime by someone other than the accused. (See People v. Patterson (CA 1989) 209 CA3d 610, 614-15 [257 CR 407]; see also People v. Beeman (CA 1984) 35 C3d 547, 560 [199 CR 60]; People v. Prettyman (CA 1996) 14 C4th 248, 259 [58 CR2d 827]; People v. Akerley (MI 1977) 251 NW2d 309, 311; People v. Laine (MI 1971) 187 NW2d 505, 506; see also FORECITE National™ 64.3.2 [Requirement That Guilt Of Perpetrator Be Proven: Joint Trial Of Perpetrator And Accomplice].)  For example, the defendant may not be convicted of aiding and abetting the crime of carrying a pistol without a license unless it is proved that the perpetrator lacked a license. (Jefferson v. U.S. (DC App. 1989) 558 A2d 298, 303-04; see also U.S. v. Lopez (N.D.Cal. 1987) 662 FSupp 1083, 1086-87 [no liability for aiding and abetting prison escape where prisoner’s necessity defense precluded conviction of aider and abettor].) However, the perpetrator need not be convicted as a prerequisite to aider and abettor liability. (See State v. Wilson (FL 1985) 483 So2d 23, 26; State v. Cunha (IA 1971) 193 NW2d 106, 109.)

    In other words, "in order to convict an accomplice, the State must sustain a two-fold burden of proof. It must first prove beyond a reasonable doubt that the principals were guilty of the crime alleged in the indictment. Then it must prove beyond a reasonable doubt that the alleged accomplice, before [the crime], advised, commanded, or encouraged his co-indictees to commit the offense ... " (Hoover v. Beto (5th Cir. 1972) 467 F2d 516, 523; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1790 [Party To Crime: Aiding And Abetting: Defendant Either Directly Committed Or Intentionally Aided The Crime Charged] comment p. 2 (University of Wisconsin Law School, 2000) ["The Committee recommends advising the jury of the elements of the underlying crime allegedly committed by the person aided, requiring them to find each element before finding the defendant guilty of aiding a felon"].)

    Furthermore, in order to obtain a conviction against both the perpetrator and aider and abettor, the prosecution must actually prove the perpetrator guilty twice. For example, if the parties are tried separately the perpetrator must be proven guilty at the trial of the perpetrator and at the trial of the aider and abettor. The fact that the perpetrator was separately convicted or admitted guilt may not be substituted for a separate showing of the perpetrator’s guilt based only upon the evidence admitted against the perpetrator: "Evidence as to declarations by [the perpetrator], whether in the form of extra-judicial admissions or in the form of the pleas of guilty, is not competent [to prove the perpetrator guilty in the aider and abettor's trial]." (State v. Jackson (NC 1967) 155 SE2d 236, 237; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.6, p. 135.) "It is now generally true ... that conviction of the principal is not admissible at the [aider and abettor's] trial to establish that the crime was committed. This is so because of 'the right of every defendant to stand or fall with the proof of the charge made against him, not somebody else.' [Citation]." (Emphasis added.) (LaFave and Scott, supra.)

    In sum, it is incumbent upon the prosecution to separately prove that the perpetrator committed the alleged offense before the aider and abettor can be convicted of that crime. (See People v. Woods (CA 1992) 8 CA4th 1570, 1586 [11 CR2d 231]; People v. Young (CA 1978) 85 CA3d 594 at 601-02 [149 CR 524]; see also LaFave and Scott, supra, ["[T]he prosecution [must] show on trial of the [aider and abettor] that the crime was committed, as well as whom and how the defendant aided in its commission"].)

    See also FORECITE National™ 64.3.7 [No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill].

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

USE NOTE: The sample instructions below address only the question of guilt or innocence. If there is a question as to the degree of guilt of the perpetrator, then the instruction should be modified to focus the jury upon the degree of guilt issues upon which the defense is relying. (See e.g., FORECITE National™ 64.6.1 [Conviction Of Accomplice For Lesser Offense Than Perpetrator]; see also FORECITE National™ 65.1.2 [When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense].)

APPELLATE PRACTICE NOTE: In light of the above, "...if there is no proof that anyone else committed the offense, the giving of an aiding and abetting instruction may be prejudicial error." (State v. Taplin (WA 1973) 513 P2d 549, 550; State v. Nikolich (WA 1925) 241 P 664, 666.)

Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 11-2, p. 11-3.

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

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

    The defendant may not be convicted as an aider and abettor absent proof beyond a reasonable doubt that __________ (insert name(s) of alleged perpetrator(s)) [is] [are] guilty of __________ (insert crime alleged to have been committed by the perpetrators for which defendant is being held vicariously liable). If you have a reasonable doubt as to whether __________ [is] [are] guilty of __________, you must give the defendant the benefit of that doubt and find [him] [her] not guilty as an aider and abettor.

    You may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons.*

* But see FORECITE National™ 276.7.5 [Multiple Defendants: Elements of Charge Must Be Specified As To Each Defendant].

See FORECITE National™ 25.6.9 [Accomplice Liability/Perpetrator Unanimity: At Least One Person Must Have Committed All Elements Of The Charge].

[5TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.06 [Aiding And Abetting (Agency)] ¶ 5 (1997).]

    The principal need not be named or identified; it is necessary only that the offense was committed by somebody and that the defendant intentionally did an act to help in its commission.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.1, comment [Aiding And Abetting] (2000).]

    You may not find defendant guilty as an aider and abettor unless you find beyond a reasonable doubt that (1) every element of the offense as defined in these instructions was committed by some person or persons and (2) the defendant aided and abetted the person or persons who committed the crime.

[See United States v. Clark, 980 F2d 1143, 1146 (8th Cir. 1992); Anthony v. State (AK 1974) 521 P2d 486, 495; see also ALASKA PATTERN CRIMINAL JURY INSTRUCTIONS 16.110(4) [Legal Accountability--Complicity (Defendant Not Committing Every Element)] (Alaska Bar Association, 1987).]

    The defendant may not be convicted as an aider and abettor unless the prosecution proves the following beyond a reasonable doubt:

    1.  Each of the elements of the underlying crime, and 

    2.  That the crime was committed by a person other than the defendant.

[See United States v. Clark, 980 F2d 1143, 1146 (8th Cir. 1992);  Hoover v. Beto (5th Cir. 1972) 467 F2d 516, 523; People v. Woods (CA 1992) 8 CA4th 1570, 1586 [11 CR2d 231]; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.02 [Aiding And Abetting] ¶ 5, p. 203 (Lexis, 2nd ed. 1988).]

SAMPLE INSTRUCTION # 7:

    The defendant cannot be convicted of aiding or abetting the criminal acts of another person if no crime was committed by the other person in the first place.

[See Nye & Nissen v. United States (1949) 336 US 613 [69 SCt 766; 93 LEd 919]; United States v. Clark, 980 F2d 1143, 1146 (8th Cir. 1992); People v. Woods (CA 1992) 8 CA4th 1570, 1586 [11 CR2d 231]; see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 11-2 ¶ 4, p. 11-3.]

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RATIONALE: Although it may be confusing to the jury, in some situations it may be necessary to require the jury to decide the perpetrator's guilt twice: once in deciding whether to convict the perpetrator under the evidence applicable to the perpetrator and again in deciding whether to convict the accomplice based on the evidence applicable to the accomplice.

POINTS AND AUTHORITIES: It is well settled that the guilt -- but not necessarily the conviction -- of the perpetrator's is an essential element of accomplice liability. (See FORECITE National™ 64.3.1 [Requirement That Guilt Of Perpetrator Be Proven: Accomplice Tried Separately].) However, this rule may be especially confusing when both the perpetrator and accomplice are tried jointly. In a joint trial in which both the perpetrator and aider and abettor are charged, the jury must actually make two separate determinations of the perpetrator's guilt: one to decide the perpetrator's liability based on the evidence admitted against the perpetrator and one to decide the accomplice's liability based only on the evidence admitted against the accomplice:

"Where two persons are indicted jointly, the crime is several in nature. The guilt of one is not dependent upon the guilt of the other. If one is convicted or pleads guilty, this is not evidence of the guilt of the other."

(State v. Jackson (NC 1967) 155 SE2d 236, 237; see also People v. Young (CA 1978) 85 CA3d 594, 601-02 [149 CR 524].)

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

BRIEFING AVAILABLE: Click here. [Brief Bank # B-904].

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

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

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    64.3.3    Requirement That Defendant Participated With, Or Was Aided By, Another Person

PRACTICE NOTE: See Orsini v. State (AR 1985) 691 SW2d 175, 176 [error to give instruction permitting jury to convict on theory that defendant had an accomplice who committed the offense absent evidence that at least one other person participated].

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

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

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PRACTICE NOTE: "[A]t common law the subject of principals and accessories was riddled with ‘intricate’ distinctions," one of which was "the rule that an accessory could not be convicted without the prior conviction of the principal offender." (Standefer v. United States (1980) 447 US 10, 15 [100 SCt 1999; 64 LEd2d 689], quoting 2 J. Stephen, A History of the Criminal Law of England 231 (1883); see also 1 M. Hale, Pleas of the Crown 623-624.)

    However, Standefer held that 18 USC 2 "evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." (Standefer v. United States (1980) 447 US 10, 19 [100 SCt 1999; 64 LEd2d 689].) Hence, the absence of a conviction of the perpetrator does not preclude conviction of the aider and abettor. (See United States v. Campa, 679 F2d 1006 (1st Cir. 1982); United States v. Ruffin, 613 F2d 408 (2nd Cir. 1979); Ray v. United States, 588 F2d 601 (8th Cir. 1978); United States v. Deutsch, 451 F2d 98 (2nd Cir. 1984).)

    In People v. Taylor (CA 1974) 12 C3d 686 [117 CR 70], the California Supreme Court unanimously held that collateral estoppel precludes prosecution "where an accused's guilt must be predicated upon his vicarious liability for the acts of a previously acquitted confederate." (Taylor, 12 C3d at 698; see also People v. Superior Court (Jackson) (CA 1975) 44 CA3d 494 [118 CR 702] [collateral estoppel prevents the last alleged coconspirator from being convicted of conspiracy, when all of his alleged coconspirators have been acquitted]; McKnight v. State (IN 1995) 658 NE2d 559, 561 [defendant’s aiding and abetting conviction reversed where perpetrator acquitted in separate trial]; Powers v. State (MD 1979) 401 A2d 1031, 1042; State v. Flittie (SD 1982) 318 NW2d 346, 348; but see People v. Fiore (IL 1988) 523 NE2d 996, 997; State v. Cunha (IA 1971) 193 NW2d 106, 109.)

    The Taylor holding was based upon the court's determination that a factual finding which was rejected by the trier of fact at a prior trial may not be relitigated at a second trial. (Taylor, 12 C3d at 692.) This rule also applies to a case where the aider and abettor and perpetrator are tried in the same trial. (12 C3d at 693, fn 8.)

    However, People v. Wilkins (CA 1994) 26 CA4th 1089, 1095 [31 CR2d 764] held that Taylor should be limited to situations where there was "factual issue identity" (i.e., the same evidence was presented on the issue). (See also People v. Rose (CA 1997) 56 CA4th 990 [65 CR2d 887] [reduction of perpetrator's crime to a misdemeanor by the trial judge at sentencing does not preclude felony liability for aider and abettor]; People v. Mata (CA 1978) 85 CA3d 233, 236-39 [149 CR 327] [no collateral estoppel where perpetrator acquitted in separate trial].)

    Even though U.S. v Powell (1984) 469 US 57 [105 SCt 471; 83 LEd2d 461] may preclude reliance upon federal principles of collateral estoppel under the 5th and 14th Amendments, the unreliability of inconsistent verdicts implicates the Due Process Clause of the 14th Amendment and the Cruel and Unusual Punishment Clause of the 8th Amendment in capital cases. (See People v. Klingenberg (IL 1996) 665 NE2d 1370, 1374-76 [distinguishing Powell and holding that legally inconsistent verdicts are unreliable].)

    See FORECITE National™ 83.3.3.5 [Conspiracy: Requirement Of More Than One Conspirator -- "The Plurality Requirement" (Collateral Estoppel)].

    See FORECITE National™ 68.5 [Collateral Estoppel As Defense To Accessory Charge].

BRIEFING AVAILABLE: For additional briefing on the question of whether Taylor applies to a situation where the perpetrator was tried under alternate theories, click here. [Brief Bank # B-593].

Annotation, Inconsistency of Criminal Verdict with Verdict on Another Indictment or Information Tried at Same Time, 16 ALR3d 866.

Robinson, Criminal Law Defenses (West, 1984) § 68(c) pp. 333-34.

Aiding And Abetting: Collateral Estoppel. Caplow & Griffin, Multidefendant Criminal Cases: Federal Law and Procedure (West, 1998) § 1:7.

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

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

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PRACTICE NOTE: Even if the person charged as an aider and abettor could not be found guilty of committing the substantive offense as a perpetrator, the person may be liable as an accomplice except in two limited situations.

    The first is if an affirmative legislative intent exists that one party was to be unpunished because he or she "was generally considered by society to be less blameworthy morally than the other party." (Hutchins v. Municipal Court (CA 1976) 61 CA3d 77, 83 [132 CR 158]; see e.g., FORECITE National™ 64.6.11 [Minor Not Criminally Liable As Aider And Abettor/Accomplice To Statutory Rape].)

    The second situation is where a different criminal statute imposing a lesser punishment is found to be controlling. (See Hutchins, 61 CA3d at 83-84; see also People v. Fraize (CA 1995) 36 CA4th 1722 [43 CR2d 64].)

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

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

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RATIONALE: Even if the aider and abettor/accomplice need not actually form the mens rea of the substantive offense, the jury must find that the perpetrator had the required mens rea, including malice, if required.

POINTS AND AUTHORITIES: In many jurisdictions "an aiding and abetting conviction ... requires evidence showing that a principal offense has been committed -- including ... evidence that some principal had the requisite intent." (U.S. v. Fulbright (9th Cir. 1997) 105 F3d 443, 452.) In such jurisdictions, when a defendant is charged with malice murder as an aider and abettor, the perpetrator (actual killer) must have the requisite express malice (intent to kill) and the jury must be so instructed. (See People v. Patterson (CA 1989) 209 CA3d 610, 614-15 [257 CR 407]; see also U.S. v. Campa (1st Cir. 1982) 679 F2d 1006, 1013 [identity of principal unnecessary; prosecution need only prove that offense was committed by someone and that the defendant aided and abetted him]; U.S. v. Denny-Shaffer (10th Cir. 1993) 2 F3d 999, 1020-21 ["One must...aid or abet someone else to commit a substantive offense. One cannot aid or abet himself...."]; U.S. v. Washington (DC Cir. 1997) 106 F3d 983, 1003-04 ["...there must be a guilty principal before there can be an aider and abettor...."]; People v. Solis (CA 1993) 20 CA4th 264, 270-271 [25 CR2d 184]; People v. Woods (CA 1992) 8 CA4th 1570, 1586 [11 CR2d 231]; Commonwealth v. James (MA 1991) 570 NE2d 168, 174; People v. Akerley (MI 1977) 251 NW2d 309, 311; State v. Quisenberry (MO 1982) 639 SW2d 579, 583 [commission of offense is prerequisite to criminal liability for the conduct of another]; see also Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-7, comment [Joint Venture (General Instruction)] (Lexis, 2nd ed. 2000).)

    Furthermore, even though the perpetrator is neither identified nor convicted, the jury must find him or her guilty beyond a reasonable doubt. (See U.S. v. Campa (1st Cir. 1982) 679 F2d 1006, 1013 [identity of principal unnecessary; prosecution need only prove that offense was committed by someone and that the defendant aided and abetted him]; Commonwealth v. James (MA 1991) 570 NE2d 168, 174; Commonwealth v. Richards (MA 1973) 293 NE2d 854, 860; State v. Perryman (OH 1976) 358 NE2d 1040, 1048-49 [identity of principal not an element of aiding and abetting]; see also LaFave & Scott, Substantive Criminal Law § 6.7 (West,1986).)

    In sum, the jury must find that the perpetrator harbored the requisite mens rea for murder (e.g., malice aforethought) before finding the accomplice guilty of murder.  (See e.g., Everett v. Beard (3rd Cir. 2002) 290 F3d 500, 513 [under Pennsylvania law an accomplice must have an intent to kill in order to be found guilty of first degree murder.)

    See FORECITE National™ 92.7.2.7 [No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill] for further discussion and briefing on this issue.

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

USE NOTE: Application To Mental Elements Of Other Crimes: Because the perpetrator must actually form the required mental elements (see FORECITE National™ 64.3.1 [Requirement That Guilt Of Perpetrator Be Proven: Accomplice Tried Separately] and FORECITE National™  64.3.2 [Requirement That Guilt Of Perpetrator Be Proven: Joint Trial Of Perpetrator And Accomplice]), the sample below could be adapted for use in any case where the mental state of the perpetrator may be in issue. (See e.g., FORECITE National™ 92.7.2.7 [No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill].)

CAVEAT: This instruction pinpoints one element of the charge. It should also be related to the other requisite elements to avoid any inference that the pinpointed element is the only one that need be proven. (See e.g., FORECITE National™ 297.1 [General Rules In Evaluating Prejudicial Effect Of Instructions].)

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

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

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    See FORECITE National™ 92.7.2.7 [No Accomplice Liability For Intentional Murder Unless Perpetrator Harbored Express Malice Or Intended To Kill].

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

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