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251.6 Mere Presence, Knowledge, Association, Etc.

    251.6.1 Mere Presence: Jury Must Find A Legal Duty To Act -- A Moral Duty Is Not Sufficient
    251.6.2 Mere Presence As Defense Theory -- Right To Instruction On Request
    251.6.3 Misprison: Failure To Report A Crime
    251.6.4 Mere Presence: Relationship To Presumption Of Innocence

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RATIONALE: When the defendant failed to intervene to prevent the commission of a crime the jury may be tempted to convict the defendant based on the conclusion that the defendant had a moral duty to act. In such cases it may be appropriate to instruct the jury that a violation of a moral duty is not sufficient to convict if there was no legal duty to act.

POINTS AND AUTHORITIES: Criminal liability must not be based on a failure to act unless there was a legal duty to act. (LaFave & Scott, Substantive Criminal Law (West, 1986) [Omission to Act: Duty to Act] 3.3(a), p. 283; see also Hicks v. U.S. (1893) 150 US 442, 449-50 [14 SCt 144; 37 LEd 1137]; Hopewell v. State (MD 1998) 712 A2d 88, 90-91.)

    See also FORECITE National™ 251.6.3 [No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)].

See 9th Circuit Model Jury Instructions - Criminal 6.1.

    The defendant had no affirmative legal duty to prevent _________ from committing criminal conduct under the circumstances of this case. Therefore, even if you believe that the defendant had a moral duty to prevent the crime that is not enough to convict. You must not convict the defendant unless all the elements required to prove accomplice liability, upon which I have instructed you, have been proven beyond a reasonable doubt.

[Source: FORECITE National™.]

    A person is not legally required to prevent criminal conduct even if such conduct may harm another person.  Therefore, even if you believe the defendant had a moral duty to prevent the crime, you must not convict the defendant unless [he] [she] committed a crime by violating a legal duty imposed by the law.

[See generally LaFave & Scott, Substantive Criminal Law (West, 1986) [Omission to Act: Duty to Act] 3.3(a), p. 283; cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VII(B) inst 1 [General Rule Of No Duty To Act] p. 337 (South Carolina CLE, 1994).]

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     251.6.2    Mere Presence As Defense Theory -- Right To Instruction On Request

    See FORECITE National™ 44.4 [Mere Presence or Association Insufficient To Create Duty To Act].

    See FORECITE National™ 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].

    See FORECITE National™ 64.2.1 [Accomplice Liability: Mere Presence As Defense Theory -- Right To Instruction On Request].

    See FORECITE National™ 83.3.6.12 [Conspiracy: Mere Presence Insufficient To Prove Membership].

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    251.6.3    Misprison: Failure To Report A Crime

PRACTICE NOTE: In the federal system misprison is a crime under 18 USC 4 but such prosecutions are "exceedingly rare." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 12-4, Comment, p. 12-8.) Mere silence will not support a charge of misprison but an untruthful statement to authorities is a sufficient act of concealment to sustain a conviction for misprison of a felony. (United States v. Hodges, 566 F2d 674, 675 (9th Cir. 1977); see also United States v. Zimmerman, 943 F2d 1204, 1214 (10th Cir. 1991) [recognizing long-established principle that one who witnesses a crime has no duty to report it]; United States v. Ciambrone, 750 F2d 1416 (9th Cir. 1984) [where court held that a defendant did not commit misprison of felony when he disclosed some of his knowledge of a crime to a government agent, but also withheld other information; since defendant’s action did not result in any greater concealment of the crime than would have occurred had the defendant remained completely silent, no misprison of felony was committed].)

    For sample instructions see 9th Circuit Model Instructions - Criminal 5.2; 5th Circuit Pattern Jury Instructions - Criminal 2.08.

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    See generally FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].