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64.6 Accomplice Liability: Miscellaneous Defense Theories

    64.6.1 Conviction Of Accomplice For Lesser Offense Than Perpetrator
    64.6.2 Accomplice Liability: "Feigned Accomplice" Defense
    64.6.3 Accomplice Liability: "Feigned Perpetrator" Defense
    64.6.4 Accomplice Liability: Defense Theory That Defendant’s Encouragement Did Not Cause The Perpetrator To Act
    64.6.5 No Accomplice Liability When Defendant Personally Commits One Or More Of The Elements Of The Substantive Offense
    64.6.6 Defense Theory That Defendant Was An Accessory After The Fact Rather Than An Accomplice
    64.6.7 Buyer-Seller Relationship: Insufficient For Accomplice Liability
    64.6.8 Accomplice Liability: Independent Impulse Of Another
    64.6.9 Accomplice Liability: Defense Theory That Participation Is Inevitably Incident To Commission Of The Crime
    64.6.10 Accomplice Liability: Inapplicable Where Crime Requires Conduct Of Two Persons But Only One May Be Punished
    64.6.11 Minor Not Criminally Liable As Aider And Abettor/Accomplice To Statutory Rape
    64.6.12 Victim Cannot Be Accomplice

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    64.6.1    Conviction Of Accomplice For Lesser Offense Than Perpetrator

RATIONALE: Without an explanatory instruction, the jury may improperly assume that it may not convict the accomplice of a lesser offense than the perpetrator.

POINTS AND AUTHORITIES: Some pattern instructions express the guilt of an accomplice as the same or "equal to" the guilt of the perpetrator. However, this language may be improper in light of the view that the accomplice and perpetrator may be convicted of different offenses.  (See Oates v. State (MD 1993) 627 A2d 555, 561; People v. McCoy (CA 2001) 25 C4th 1111 [108 CR2d 188]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.7, p. 581.)

    The distinguished English scholar Glanville Williams discussed this same independence of mens rea among joint participants in the same criminal act, tracing the principle as far back as Sir Matthew Hale's History of the Pleas of the Crown in 1736 and Edward Hyde East's Pleas of the Crown in 1803. (See Oates v. State (MD 1993) 627 A2d 555, 561.)

"In one type of case the courts have gone quite far in dissolving the conceptual tie between the responsibility of the principal and that of the accomplice. It is possible for a principal in the first degree to be convicted of murder and a principal in the second degree of manslaughter. Thus if D attacks P intending to murder him, and E enters into the affray thinking that only an assault is intended, and D kills P, this is murder in D and manslaughter in E." (Ibid.)

    Accordingly, in jurisdictions where the aider and abettor and perpetrator must share the requisite mens rea, the aider and abettor may be convicted of a lesser charge. (See e.g., State v. Bielkiewicz (NJ 1993) 632 A2d 277, 284-85; see also Perkins & Boyce, Criminal Law (Foundation Press, 1982) p. 753 ["needless to say, the abettor may be convicted of a lower degree of crime than the perpetrator"].)

    Additionally, jurisdictions which do not require that the aider and abettor actually form the mens rea of the principal offense (see e.g., People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60]) recognize situations where the mental states must be distinguished. (See People v. McCoy (CA 2001) 25 C4th 1111 [108 CR2d 188].)  For example, where the aider and abettor acted under sudden quarrel or heat of passion he or she can only be convicted of manslaughter not second degree murder, even though the principal is found to have acted with malice aforethought. (See People v. Blackwood (CA 1939) 35 CA2d 728, 732-33 [96 P2d 982]; and cases cited in People v. Castillo UNPUBLISHED (CA 1991) 232 CA3d 132, 145, fn 5 [283 CR 636].) "While the courts are not unanimous in following this rule as Professor Perkins intimates, the better rule is that an aider and abettor can be convicted of an offense lower in degree than the offense of which the principal is convicted. It is reasoned that the guilt of the aider and abettor may depend upon his own actions, intent and state of mind rather than those of the principal." (People v. Folkes (MI 1976) 246 NW2d 403, 405; see also State v. Stewart (IA 1924) 197 NW 974, 978; State v. Lord (NM 1938) 84 P2d 80, 91-92; People v. Monaco (NY 1964) 197 NE2d 532, 535; Graham v. State (SD 1982) 328 NW2d 254, 255; Red v. State (TX 1898) 47 SW 1003.)

    Another basis for finding the aider and abettor guilty of a lesser offense than the perpetrator occurs when liability is based on the natural and probable consequences doctrine. If the offense committed by the perpetrator was not a natural and probable consequence of the target offense then the aider and abettor may only be convicted of the target offense. (See FORECITE National™ 65.1.3 [Natural And Probable Consequence: The Accomplice May Be Convicted Of A Lesser Offense Than The Perpetrator].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1; 8.1; 8.2].

OPINION AVAILABLE:  Click here.  [Opinion Bank # O-303].  

RESEARCH NOTES:

Annotation, Acquittal Of Principal, Or His Conviction Of Lesser Degree Of Offense, As Affecting Prosecution Of Accessory, Or Aider And Abettor, 9 ALR4th 972.

Annotation, Lesser-Related State Offense Instructions: Modern Status, 50 ALR4th 1081.

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].

    In considering whether the defendant is guilty or not guilty as an accomplice for a lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependant on his or her own state of mind and no one else’s.

[See People v. McCoy (CA 2001) 25 C4th 1111 [108 CR2d 188]; State v. Bielkiewicz (NJ 1993) 632 A2d 277, 284-85; see also NEW JERSEY MODEL JURY CHARGES - CRIMINAL Ch. 2, Charge No. 2 [Liability for Another’s Conduct] p. 5 (New Jersey ICLE 4th ed. 1997).]

SAMPLE INSTRUCTION # 3:

    Each principal, regardless of the extent or manner of participation, is equally guilty, except that an aider and abettor may be found guilty of a lesser offense than the perpetrator.

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RATIONALE: If the defendant's intent was to bring the perpetrator to justice, then any acts of aiding and abetting should not give rise to accomplice liability. This is so because the necessary intent to facilitate the commission of the offense was not present.

POINTS AND AUTHORITIES: A person who intentionally aided and abetted the perpetrator of a crime but who had "feigned complicity for the purpose of detecting the [culprits]" should not be guilty as an accomplice. "To act so as to frustrate a criminal objective negates an intent to further it." (People v. Rogers (CA 1985) 172 CA3d 502, 513 [217 CR 809]; see also People v. Bolanger (CA 1886) 71 C 17, 20 [11 P 799] [accomplice is one who "with common intent with the principal offender unites in commission of the crime"].)

    See FORECITE National™ 64.6.3 [Accomplice Liability: "Feigned Perpetrator" Defense].

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

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: There should be no accomplice liability unless the perpetrator actually committed the target crime. Hence, an explanatory instruction may be necessary for the jury to understand that the perpetrator must actually form the required criminal intent.

POINTS AND AUTHORITIES: It is well settled that a "feigned accomplice" is not guilty of aiding and abetting. (See FORECITE National™ 64.6.2 [Accomplice Liability: "Feigned Accomplice" Defense].) It is also established that an aider and abettor is not guilty of the substantive offense unless the perpetrator had the necessary criminal intent required to commit the offense. (See U.S. v. Hurd (9th Cir. 1981) 642 F2d 1179, 1183; FORECITE National™ 64.3 [Accomplice Liability: Guilt Of Perpetrator As Required Element]; see also FORECITE National™ 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].)

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

NOTE: If some appreciable fragment of the act constituting the crime is actually committed by a feigned perpetrator, then it would stand to reason that the defendant could be liable for the attempted commission of the substantive crime. (See People v. Phillips (CA 1985) 41 C3d 29, 73 fn 26 [222 CR 127].)

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: There must be a causal relationship between the encouragement offered by the accomplice and the perpetrator's commission of the crimes. (See Commonwealth v. Pierce (PA 1970) 263 A2d 350, 351 [guilt of abettor is not determined by quantum of advice or encouragement, if it is rendered to induce another to commit the crime and actually has that effect, no more is required]; see also Davis v. State (FL 1973) 275 So2d 575, 577 [it is necessary that [defendant] had conscious intent that the criminal act should be done or shall be done and that pursuant to that intent he did some act or said some word which was intended to and which did incite, cause, encourage or assist or induce another person to actually commit the crime]; compare Commonwealth v. Bridges (PA 1977) 381 A2d 125, 128 [an accomplice's conduct does not have to result in and of itself in the criminal offense, but rather an accomplice's conduct must, with the intent to promote or facilitate, aid one whose conduct does causally result in the criminal offense].)

    See also FORECITE National™ 64.2.7 [Accomplice Liability Requires Substantial Participation By The Accomplice].

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: People v. Cook (CA 1998) 61 CA4th 1364 [72 CR2d 183] held that the fact that a key element of the crime is performed by another person doesn't make an accomplice an aider and abettor. (But see WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 400 [Party To Crime: Aiding And Abetting: Defendant Either Directly Committed Or Intentionally Aided The Crime Charged] (University of Wisconsin Law School, 2000) [defendant must personally commit all the elements of the crime or aid and abet the commission of the crime].)

RESEARCH NOTES:

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™ 68.13 [Defense Theory Of Accessory After The Fact As Lesser Offense].

    See also FORECITE National™ 92.7.5.1 [Murder: Accessory To Murder As Lesser Offense].

    See also FORECITE National™ 267.3 [Right To Present A Defense As Basis For Instruction On Lesser Related Offense].

See generally, FORECITE National™ 305.1.2 [Accessory After The Fact]

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

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PRACTICE NOTE: "The buyer-seller issue...is not limited to drug cases and may arise in a variety of conspiracy or aiding and abetting cases." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.12 [Buyer-Seller Relationship], Committee comment (1999); see also Wharton’s Criminal Law (West, 15th ed. 1993) ["...nor is a purchaser of narcotics an accomplice of the person charged with selling such narcotics"]; People v. Miller (CA 1958) 162 CA2d 96, 98 [328 P2d 506].)

    See also FORECITE National™ 83.3.2 [Buyer-Seller Relationship Is Not A Conspiracy].

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: If the perpetrator commits the offense independently of any facilitation by the defendant then there should be no accomplice liability.

POINTS AND AUTHORITIES: See McClung & Carpenter, TEXAS CRIMINAL JURY CHARGES 2:150:20 [Failure To Limit Independent Impulse] (James Publishing, 2000).

    See also FORECITE National™ 64.6.4 [Accomplice Liability: Defense Theory That Defendant’s Encouragement Did Not Cause The Perpetrator To Act].

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

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 has testified that, if there was an offense committed upon the person of _________________, that he did not agree to the commission of the offense and that he had no intent to participate in such unlawful act, if any, and that he did not participate in any way in the furtherance of the purpose and design of the others who were engaged in any offense, if any was committed, and never agreed to the commission of any such offense, if any, and if you so believe or if you have a reasonable doubt thereof, you will acquit the defendant.

[See McClung & Carpenter, TEXAS CRIMINAL JURY CHARGES 2.150 [Independent Impulse Of Another] (James Publishing, 2000).]

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PRACTICE NOTE: An accomplice may not be liable for a crime if it is so defined that participation by another is inevitably incidental to its commission. (Robinson, Criminal Law Defenses (West, 1984) § 23(a).) For example, a "john" may have a defense to a charge of prostitution. (Ibid.)

    Similarly, "Whartons Rule" precludes conviction for conspiracy when the intended offense necessarily requires the participation of more than one person. (Robinson, Criminal Law Defenses (West, 1984) § 23(a) p. 78; see also FORECITE National™ 83.3.1.6 [Conspiracy: Defense Theory That Intended Offense Requires Two Perpetrators (Wharton's Rule)].)

    See also FORECITE National™ 64.6.11 [Minor Not Criminally Liable As Aider And Abettor/Accomplice To Statutory Rape].

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: See Wharton’s Criminal Law (West, 15th Ed. 1993) § 36, pp. 217-19.

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: When an adult has unlawful sexual intercourse with a minor, it has been held that the minor is not criminally liable as an aider and abettor in the offense. (In re Meagan R. (CA 1996) 42 CA4th 17, 23-24 [49 CR2d 325]; Tyrone v. State (TX 1993) 854 SW2d 153, 156; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 3-3-21 [Sex Offenses-Incest Victim As Accomplice] (State Bar of South Dakota, 2000).)

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: See Robinson, Criminal Law Defenses (West, 1984) § 83(b), p. 400.

    See FORECITE National™ 64.6.11 [Minor Not Criminally Liable As Aider And Abettor/Accomplice To Statutory Rape].

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].