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RATIONALE: Instruction on the elements of accessory after the fact is necessary for the jury to fulfill its function.

POINTS AND AUTHORITIES: See Little v. U.S. (DC App. 1998) 709 A2d 708, 710; Bush v. State (WY 1995) 908 P2d 963, 965; U.S. v. Day (10th Cir. 1976) 533 F2d 524, 526; People v. Jones (CA 1993) 14 CA4th 1252, 1257 [18 CR2d 673].

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

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

    The elements of the crime of accessory after the fact are that:

    (1)  a felony has been committed;

    (2)  the defendant had actual knowledge of the participant[s] in the crime; and

    (3)  with such knowledge the accused in some way assisted the participant[s] to hinder or prevent [their] [his] [her] apprehension, trial, or punishment.

[See U.S. v. Day (10th Cir. 1976) 533 F2d 524, 526.]

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RATIONALE: Without specific instruction the jury may not understand that all elements of the underlying offense must be committed before the defendant may be convicted as an accessory after the fact.

POINTS AND AUTHORITIES: Since the prior commission of a felony by the offender who is aided or concealed is an element of the crime of being an accessory, an instruction concerning the elements of the underlying felony should be given in accessory prosecutions. (See People v. Shields (CA 1990) 222 CA3d 1, 4-5 [271 CR 228]; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1790, comment [Aiding A Felon] 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."].)

    Regardless of whether conviction of the principal is a condition precedent to conviction of an accessory (but see NCJIC 68.1 [Accessory After The Fact: Required Elements]), conviction of an accessory requires proof that crime has been committed by a principal. (See e.g., Redman v. Commonwealth (VA 1997) 487 SE2d 269, 271; see also Butler v. State (MD 1994) 643 A2d 389, 400; see also NCJIC 64.3 [Accomplice Liability: Guilt Of Perpetrator As Required Element].)

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

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

    An essential element of the crime of accessory is that the alleged perpetrator of the underlying crime, in this case ______________ (name of perpetrator), be guilty of that crime.  This requires the prosecution to prove beyond a reasonable doubt that ____________ (name of perpetrator) committed all of the following:

[Insert elements of underlying crime.]

    If, after considering all the evidence, you have a reasonable doubt that ____________ (name of perpetrator) committed any of the above elements, you must find the defendant not guilty of the crime of accessory.

[Cf. Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 4-2 [Accessory Before The Fact Defined] ¶ 2 (South Carolina Bar, 1995).]

    An essential element of the offense of accessory after the fact is that the offense of ___________ had been committed.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.01 [Accessory After The Fact] (Bar Association of the District of Columbia, 4th ed. 1993).]

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PRACTICE NOTE: Evidence of consciousness of guilt raises an inference that the defendant was aware of some wrongdoing and, therefore, at most, should not alone be sufficient to prove the defendant was an accessory after the fact. (See NCJIC 34.2.3 [Consciousness Of Guilt Evidence Not Sufficient To Prove Guilt "Standing Alone"].)

    For example, in People v. Nguyen (CA 1993) 21 CA4th 518, 538-39 [26 CR2d 323], the defendants were charged with robbery and accessory to a sexual assault committed by another codefendant during the robbery. The Court of Appeal held that evidence of the defendants' flight, their possession of stolen property, and an admission of being present at the scene of the robbery was insufficient to support a finding of accessory. The court noted that in some circumstances supplying an affirmative and deliberate falsehood to public authorities, such as providing a false alibi, is sufficient to make the person who supplied the false information an accessory. (See People v. Duty (CA 1969) 269 CA2d 97, 104 [74 CR 606].)

See generally, NCJIC 305.1.2 [Accessory After The Fact].

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

See also 6th Circuit Pattern Jury Instructions - Criminal 4.02.

See also 7th Circuit Federal Jury Instructions - Criminal 5.07.

See also 8th Circuit Model Jury Instructions - Criminal 5.05.

See also 9th Circuit Model Jury Instructions - Criminal 5.2.

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    68.4    Accessory After The Fact: Locus Delicti As Defense Theory

PRACTICE NOTE: Locus delicti for accessory is the jurisdiction where the acts of assisting the perpetrator took place, not where the original crime was committed. (U.S. v. Cabrales (1998) 524 US 1, 7-10 [118 SCt 1772; 141 LEd2d 1].)

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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    68.5    Collateral Estoppel As Defense To Accessory Charge

PRACTICE NOTE: Because commission of the underlying offense is an essential element of accessory liability (see U.S. Cabrales (1998) 524 US 1, 7-8 [118 SCt 1772; 141 LEd2d 1]), collateral estoppel principles may be applicable to preclude prosecution as an accessory when the perpetrator has been acquitted. (See McKnight v. State (IN 1995) 658 NE2d 559, 560-61; see also generally NCJIC 64.3.4 [Propriety Of Accomplice Liability When Perpetrator Acquitted].)

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

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See also generally, NCJIC 305.5.6 [Equitable Estoppel].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A person cannot be convicted as an accessory after the fact to a murder because he aided the murderer to escape, when the aid was rendered after the mortal wound was given, but before death occurred, because a murder is not complete until the death results. (See Redman v. Commonwealth (VA 1997) 487 SE2d 269, 271 [no direct evidence that defendant knew at the time that acquaintance he was harboring was a felon]; see also Little v. U.S. (DC App. 1998) 709 A2d 708, 712-14; Harrell v. State (MS 1861) 39 Miss. 702 [party rendering assistance to another after the mortal blow has been struck, and before death has taken place, cannot be convicted as an accessory to the crime of murder].)

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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RATIONALE: It would be illogical to convict the defendant of being an accessory to a crime if he or she had no knowledge that the crime was committed. Therefore, instruction on lack of knowledge as a defense theory may be necessary.

POINTS AND AUTHORITIES:  An accessory after the fact must know of primary offender’s felony. (See U.S. v. Graves (9th Cir. 1998) 143 F3d 1185, 1190-91; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 4.02 [Accessory After The Fact] ¶ 2(A) (1991).)

    See also NCJIC 68.2 [Accessory After the Fact: Defense Theory That Elements Of Underlying Felony Were Not Committed].

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

LaFave & Scott, Substantive Criminal Law (West, 1986) § 6.9(a), p. 168.

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

    (1)     ___________ is not charged with actually committing the crime of ___________. Instead, he is charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime. A person who does this is called an accessory after the fact.

    (2)     For you to find ____________ guilty of being an accessory after the fact, the government must prove each and every one of the following elements beyond a reasonable doubt:

    (A)     First, that the defendant knew someone else had already committed the crime of ____________.

    (B)     Second, that the defendant then helped that person try to avoid being arrested, prosecuted or punished.

    (C)     And third, that the defendant did so with the intent to help that person avoid being arrested, prosecuted or punished.

    (3)     If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 4.02 [Accessory After The Fact] (1991).]

    An essential element of the offense of accessory after the fact, which the government must prove beyond a reasonable doubt, is that the defendant knew that the offense of _____________ had been committed.

    (Insert definition of separate underlying offense to which defendant is charged as an accessory.)

    If, after considering all the evidence, you have a reasonable doubt that ____________ (perpetrator) committed any of the above elements, you must find the defendant not guilty.

[Cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.01 [Accessory After The Fact] (Bar Association of the District of Columbia, 4th ed. 1993).]

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RATIONALE: Accessory liability is premised on the commission of affirmative acts. However, without special instruction the jury may not understand this rule and may convict the defendant based only on the defendant's knowing silence.

POINTS AND AUTHORITIES: Mere silence or failure to report crime does not alone make one an accessory after the fact. (See People v. Garnett (CA 1900) 129 C 365, 366 [61 P 1114] [mere silence after knowledge of its commission is not sufficient to constitute the party an accessory]; see also Lowe v. State (CO 1957) 309 P2d 601, 604 [mere silence as to one's knowledge of a felony, with no intent to aid the felon, or mere failure to inform the public authorities, does not establish such person is an accessory after the fact]; Staten v. State (FL 1988) 519 So2d 622, 626; State v. Jackson (LA 1977) 344 So2d 961, 963; State v. Brown (NE 1976) 247 NW2d 616, 617; Commonwealth v. Giacobbe (PA 1941) 19 A2d 71, 75 [mere knowledge of the perpetration of a crime does not involve responsibility for its commission, nor does silence following such knowledge make one an accomplice or an accessory after the fact].)

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

Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS V(B) parties inst 3, [Accessory After The Fact] p. 237 (South Carolina CLE, 1994).

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without special instruction the jury may erroneously assume that the defendant's actual but mistaken belief that the perpetrator committed a crime is sufficient for accessory after the fact liability.

POINTS AND AUTHORITIES: An element of the crime of accessory after the fact is the commission of a crime by the perpetrator. (See NCJIC 68.1 [Accessory After The Fact: Required Elements]; see also NCJIC 64.3 [Accomplice Liability: Guilt Of Perpetrator As Required Element].) If the crime was not committed there can be no accessory liability even if the aider actually believed that the perpetrator had committed a felony. (See People v. Hardin (CA 1962) 207 CA2d 336, 341-43 [24 CR 563].)

    See also NCJIC 83.3.1.1 [Conspiracy: Actual Impossibility As Defense Theory].

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

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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RATIONALE: Special instruction may be necessary for the jury to understand that it must not look only to the acts of the defendant to find accessory after the fact liability but must also find an intent to prevent the perpetrator's apprehension.

POINTS AND AUTHORITIES: Intent to prevent the perpetrator's arrest is generally an element of accessory after the fact liability. (See Little v. U.S. (DC App. 1998) 709 A2d 708, 710; People v. Usher (MI 1992) 492 NW2d 786, 788.)

    See also NCJIC 68.1 [Accessory After The Fact: Required Elements].

    See also NCJIC 252.10.1 [Innocent Intent].

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

Wharton’s Criminal Law (West, 15th ed. 1993) § 33.

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

    Mere harboring, aiding or concealing a person who committed a crime is not sufficient to convict the defendant of being an accessory after the fact unless the prosecution also proves beyond a reasonable doubt that the defendant had the specific intent to prevent the person's arrest.

[See People v. Usher (MI 1992) 492 NW2d 786, 788; see also IOWA CRIMINAL JURY INSTRUCTIONS 300.4 [Accessory After The Fact - Intent To Prevent Apprehension] (Iowa State Bar Association, 1997).]

SAMPLE INSTRUCTION # 3:

    You may not vote to convict the defendant of accessory after the fact unless you find that the prosecution has proved beyond a reasonable doubt, that the defendant (1) helped a person who committed a crime and (2) the defendant did so with the specific intent to hinder or prevent that person's arrest.

[See Little v. U.S. (DC App. 1998) 709 A2d 708, 710; cf. CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.01 [Accessory After the Fact] (Bar Association of the District of Columbia, 4th ed. 1993).] 

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    See NCJIC 19.2.3 [Accessory Instruction As To One Defendant And Not The Other May Be Improper Comment On Facts].

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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RATIONALE: In the appropriate case the standard instruction may not explain the critical distinction between aider and abettor/accomplice liability and accessory after the fact liability.

POINTS AND AUTHORITIES: The critical distinction between an aider and abettor and an accessory after the fact is that the aider and abettor is aware of and intends to further the commission of the substantive offense prior to its completion, while the accessory after the fact does not decide to assist the perpetrator until after the crime has ended. (See NCJIC 68.1 [Accessory After The Fact: Required Elements].) When appropriate, an instruction explaining this distinction to the jury may be necessary. The failure to give such an instruction has been held to be reversible error. (See People v. Davenport (MI 1982) 332 NW2d 443, 445-46; People v. Karst (MI 1982) 324 NW2d 526, 529; People v. Lucas (MI 1978) 262 NW2d 662, 663; People v. Bargy (MI 1976) 248 NW2d 636, 639-40.)

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

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

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Under a strict elements test, accessory to a felony is not a lesser included offense where guilt as a principal is alleged. (People v. Markus (CA 1978) 82 CA3d 477, 480 [147 CR 151]; see also State v. Bradford (WV 1997) 484 SE2d 221, 228-29.)

    However, under some circumstances the defendant should have the right to instruction on accessory liability as a defense theory. (See NCJIC 267.3 [Right To Present A Defense As Basis For Instruction On Lesser Related Offense].)

    See also NCJIC 92.7.5.1 [Murder: Accessory To Murder As Lesser Offense].

See generally, NCJIC 305.1.2 [Accessory After The Fact].

See generally, NCJIC 68.14 [Accessory After The Fact: Federal Circuit Model Instructions And Notes].

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    68.14     Accessory After The Fact: Federal Circuit Model Instructions And Notes

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

See also 6th Circuit Pattern Jury Instructions - Criminal 4.02.

See also 7th Circuit Federal Jury Instructions - Criminal 5.07.

See also 8th Circuit Model Jury Instructions - Criminal 5.05.

See also 9th Circuit Model Jury Instructions - Criminal 5.2.