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VOLUME 6 - CHAPTER 64
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64.7 Accomplice Liability: Miscellaneous Issues

    64.7.1 Gang Membership Insufficient To Prove Accomplice Liability
    64.7.2 Accomplice Liability: Reference To Actual Names To Avoid Confusion
    64.7.3 Accomplice Liability: Assistance Or Encouragement To Reckless Or Negligent Conduct
    64.7.4 Accomplice Liability And The Death Penalty

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    64.7.1    Gang Membership Insufficient To Prove Accomplice Liability

PRACTICE NOTE: Membership in a gang cannot serve as proof of intent, or of the facilitation, advice, aid, promotion, encouragement, or instigation needed to establish aiding and abetting. To hold otherwise would invite absurd results. "Any gang member could be held liable for any other gang member's act at any time so long as the act was predicated on the 'common purpose of fighting the enemy.'" [Internal citations and punctuation omitted.] (Mitchell v. Prunty (9th Cir. 1997) 107 F3d 1337, 1342; see also State v. Flournoy (MN 1995) 535 NW2d 354, 359-60 [witness was not accomplice even though present at scene and member of same gang as defendant].)

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: Use of the terms principal or perpetrator in an aiding and abetting instruction may be confusing to the jury. Hence, use of the actual names of the individuals involved may be appropriate. For example, Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(B) Parties Inst. 1 [Aiding and Abetting-Principals] p. 235 (South Carolina CLE, 1994) provides the following format:

    In order to find that Defendant aided and abetted ______________ to commit the criminal offense of ___________________, you must find that the State has proven beyond a reasonable doubt that the criminal offense of __________________ was committed by ___________________, that defendant through prearrangement was present to aid and abet ___________________ to commit the crime of _________________________, that defendant did some act and that defendant knew that his act would aid _____________________ in committing the offense of ___________________.

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: Accomplice liability should not apply to a crime based on negligence such as involuntary manslaughter. Involuntary manslaughter is not an offense that one may directly aid and abet, because aiding and abetting requires that one know and share the intent of the perpetrator. (See People v. Beeman (CA 1984) 35 C3d 547, 560-61 [199 CR 60].) Since it is a legal impossibility for the perpetrator to intend to commit involuntary manslaughter (see People v. Broussard (CA 1977) 76 CA3d 193, 197 [142 CR 664]), the liability of an aider and abettor must flow, if at all, from a known and shared intent to commit the act upon which the involuntary manslaughter charge is predicated. (See generally, FORECITE National™ 64.1 [Accomplice Liability: Intent And Knowledge Elements]; see also LaFave & Scott, Substantive Criminal Law (West 1999) § 6.7(e), p. 149-50.)

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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    64.7.4    Accomplice Liability And The Death Penalty

    See FORECITE National™ 303.2.7 [Death Penalty: Applicability Of Accomplice Instructions To Penalty Phase].

    See FORECITE National™ 303.3.14 [Death Penalty: Individualized Consideration For Accomplice].

    See FORECITE National™ 303.7.1.4 [Death Penalty: Leniency Received By Accomplice As Mitigation].

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].