NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions

VOLUME 6: THEORIES OF CRIMINAL RESPONSIBILITY AND DEFENSES THERETO (Chapters 63-75)

TABLE OF CONTENTS

Chapter 63: Liability For Acts Of Coconspirators (Pinkerton)

63.1 Pinkerton Liability: Defense Theories
    63.1.1 Conspiracy: Pinkerton Liability -- General Rule
    63.1.2 Conspiracy: Pinkerton Liability -- Defense Theory That Consequences Were Not A Natural And Probable Consequence Of The Common Plan
    63.1.3 Conspiracy: Pinkerton Liability -- Marginal Foreseeability As Defense Theory
    63.1.4 Conspiracy: Pinkerton Liability -- Unnecessary Double Punishment As Defense Theory
    63.1.5 Conspiracy: Pinkerton Liability -- "Reverse Pinkerton" Where Evidence Of Conspiracy Is Weak And Substantive Offense Is Strong
    63.1.6 Limiting The Scope Of The Natural And Probable Consequences Doctrine
    63.1.7 Pinkerton Theory Insufficient To Support Ex-Felon In Possession Of Firearm Charge

Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.)

64.1 Accomplice Liability: Intent And Knowledge Elements
    64.1.1 Accomplice Liability Requires A Specific Intent Mens Rea
    64.1.2 Accomplice Liability: Requirement Of Intent To Facilitate The Crime
    64.1.3 Accomplice Must Intend To Encourage Or Aid And Abet The Act Committed By The Perpetrator
    64.1.4 Accomplice Liability: Innocent Acts Which Aid Commission Of The Crime Not Sufficient
    64.1.5 Accomplice Liability: Negation Of Knowledge Or Intent By Mental Impairment And/Or Voluntary Intoxication
    64.1.6 Accomplice Liability: Liability For Use Of Weapon Requires Knowledge That Perpetrator Would Use A Weapon
    64.1.7 Accomplice Liability: Federal Circuit Model Instructions And Notes

64.2 Accomplice Liability: Mere Presence Insufficient
    64.2.1 Accomplice Liability: Mere Presence As Defense Theory -- Right To Instruction On Request
    64.2.2 Accomplice Liability: No Legal Duty To Report Crime
    64.2.3 Standing By During The Offense Is Not Sufficient For Accomplice Liability
    64.2.4 Mere Presence Which Assists Commission Of The Crime Is Not Sufficient For Accomplice Liability
    64.2.5 Accomplice Liability: Relevance Of Mental Impairment To “Mere Presence” Defense
    64.2.6 Accomplice Liability: Silent Approval Of The Crime Not Sufficient
    64.2.7 Accomplice Liability Requires Substantial Participation By The Accomplice
    64.2.8 Accomplice Liability: Mere Presence At The Scene And Intimate Knowledge Of The Crime Are Not Sufficient To Convict
    64.2.9 Accomplice Liability: Mere Association Insufficient
    64.2.10 Mere Presence Aboard A Vessel

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

64.4 Accomplice Liability: Knowledge, Intent And Act Must Precede The Crime
    64.4.1 Accomplice Liability: After Acquired Knowledge Or Intent Insufficient
    64.4.2 Post-Crime Assistance Insufficient For Accomplice Liability
    64.4.3 After Acquired Intent To Aid And Abet Robbery

64.5 Termination Of Accomplice Liability (Withdrawal/Abandonment)
    64.5.1 Termination Of Liability For Accomplice: No Duty To Act Unreasonably In Preventing Commission Of The Crime
    64.5.2 Termination Of Accomplice Liability: Abortion Of The Agreement Terminates Liability

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 Then 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

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

64.8 Accomplice Liability: Requirement Of Application Paragraph
    64.8.1 General Principles

Chapter 65: Natural And Probable Consequences

65.1 Miscellaneous Issues
    65.1.1 Natural And Probable Consequence: Prejudicial Impact Of The Failure To Instruct On Elements Of Uncharged Target Offense
    65.1.2 When Is First Degree Murder A Natural And Probable Consequence Of The Target Offense
    65.1.3 Natural And Probable Consequence: The Accomplice May Be Convicted Of A Lesser Offense Than The Perpetrator
    65.1.4 Natural And Probable Consequences: No Murder Liability For Aiding And Abetting Misdemeanor

65.2 Limiting The Scope Of The Natural And Probable Consequences Rule
    65.2.1 Natural And Probable Consequences: Insufficiency Of Act Outside Of Common Design
    65.2.2 Natural And Probable Consequences: Limited To Offenses Committed During The Commission Of The Target Offense
    65.2.3 Natural And Probable Consequences: Requirement Of Notice As To Target Offense
    65.2.4 Homicide Is Not A Natural And Probable Consequence Of A Gang Attack
    65.2.5 Homicide Is Not A Natural And Probable Consequence Of Robbery Or Burglary
    65.2.6 Killing Of Third Party Not A Natural And Probable Consequence Of Plan To Kill Another Person
    65.2.7 Robbery Not A Natural And Probable Consequence Of Aiding Illegal Gun Sale
    65.2.8 Natural And Probable Consequences: Application Of Merger Doctrine
    65.2.9 Natural And Probable Consequences: Where The Target Offense Consists Of The Same Act As The Actual Offense
    65.2.10 Natural and Probable Consequence: Requirement Of “Close Connection” Between Target Crime And Charged Crime
    65.2.11 Natural And Probable Consequences Improper For Specific Intent Offense
    65.2.12 Whether Natural And Probable Doctrine Should Apply To Attempts

65.3 Constitutional Challenge To Natural And Probable Consequences Rule
    65.3.1 Serious Felony Liability Bases On Negligence Violates Fundamental Common Law Principles
    65.3.2 Natural And Probable Consequence: Objective Standard Permits Liability Without Any Actual Awareness Or Intent
    65.3.3 Natural And Probable Consequence: Mental State Is Improperly Presumed
    65.3.4 Constitutional Challenge To Natural And Probable Consequences Rule As Overbroad
    65.3.5 Natural And Probable Consequences Improper For Specific Intent Offense
    65.3.6 Criticism Of Natural And Probable Consequences Rule

65.4 Instruction Requirements
    65.4.1 Natural And Probable Consequences: Objective Reasonable Person Standard
    65.4.2 Natural And Probable Consequences: Limited To Circumstances Known To The Defendant At The Time
    65.4.3 Natural And Probable Consequences: Instruction On Elements Of Uncharged Target Offense
    65.4.4 Natural And Probable Consequences: Jury Must Unanimously Agree Upon The Acts Constituting The Target Offense
    65.4.5 Natural And Probable Consequences: Requirement That Perpetrator Be Proven Guilty Of The Target Crime
    65.4.6 Natural And Probable Consequences: Consideration Of All Circumstances
    65.4.7 Relevance Of Intoxication To Natural And Probable Consequences
    65.4.8 Natural And Probable Consequences -- Use Of Perpetrator's Name If Known
    65.4.9 Natural And Probable Consequences Must Not Be Based On Target Offense In Abstract

Chapter 66: Attempt

66.1 Attempt: General Principles
    66.1.1 Attempt: Common Law Roots
    66.1.2 Attempt: Requirement Of Intent To Commit Every Element Of The Underlying Offense
    66.1.3 Attempt: Inapplicable To Crimes Based On Negligence
    66.1.4 Attempt: Inapplicable To Crimes Which Are Themselves Based On An Attempt
    66.1.5 Defense Theory That Attempt Is Lesser Included Of Charged Offense
    66.1.6 Attempt: Failure To Complete The Offense As Relevant To Lack Of Intent
    66.1.7 Attempt: The Substantial Step Element
              66.1.7.1 Substantial Step: General Principles
              66.1.7.2 View That Substantial Step Must Be Strongly Corroborative Of Criminal Intent And Not Equivocal
              66.1.7.3 Substantial Step: Mere Preparation Insufficient 
    66.1.8 Attempt: Federal Circuit Model Instructions And Notes

66.2 Attempt: Mere Preparation Or Intent Not Sufficient
    66.2.1 Attempt: Defense Theory That Conduct Was Mere Preparation Rather Than A Substantial Step Toward Committing The Crime
    66.2.2 Attempt: Consideration Of The Time Of The Intended Perpetration
    66.2.3 Attempt: Reconnoitering Is Insufficient
    66.2.4 Assembling Disguises, Obtaining Weapons and “Casing” a Bank Not Sufficient For Attempt
    66.2.5 Attempted Robbery: Possession Of “Tools” Is Not Sufficient
    66.2.6 Attempt: Verbal Agreement Not Sufficient
    66.2.7 Attempt: Intent, Without An Act, Is Not Sufficient

66.3 Attempt: Defense Of Impossibility
    66.3.1 Defense Theory That Factual Impossibility Precludes Conviction For Attempt
    66.3.2 Impossibility As Defense To Attempted Purchase Of Controlled Substance
    66.3.3 Attempt: Defense Theory That Completed Act Would Not Have Been A Crime
    66.3.4 Attempt: Legal Impossibility As Defense

66.4 Distinction Between Attempt And Solicitation
    66.4.1 Defense Theory That The Crime Was A Solicitation Rather Than An Attempt
    66.4.2 Distinction Between Solicitation And Attempt Inapplicable To Perjury

66.5 Particular Attempts
    66.5.1 Attempted Possession As Lesser Included Offense Of Possession For Sale Or Distribution
    66.5.2 Attempted Possession Of Controlled Substance: Defense Theory That Defendant Did Not Believe The Substance To Be A Controlled Substance
    66.5.3 Attempted Driving Under The Influence As A Lesser Included Offense Of Driving Under The Influence
    66.5.4 Manufacture Of Controlled Substance: Defense Theory That Attempt Is Lesser Included Offense
    66.5.5 Attempt To Commit A Strict Liability Offense Requires Intent To Bring About The Prescribed Result
    66.5.6 No Crime Of Attempted Felony Murder

Chapter 67: Solicitation

67.1 Solicitation: Lack Of Intent As Defense Theory
67.2 No Multiple Convictions For Single Solicitation Against Multiple Victims
67.3 Specific Solicitation Statute Preempts General Attempt Possession
67.4 Solicitation: Defense Theory That Request Lacked Sufficient Clarity
67.5 Solicitation: Renunciation As Defense
67.6 Solicitation: Defense Theory That Act And Intent Were Not Concurrent
67.7 Solicitation: Guilt Of Person Solicited Not Required
67.8 Solicitation: Person Solicited May Not Be Convicted Solely On Acquiescence

Chapter 68: Accessory After The Fact

68.1 Accessory After The Fact: Required Elements
68.2 Accessory After the Fact: Defense Theory That Elements Of Underlying Felony Were Not Committed
68.3 Accessory After The Fact: Defense Theory That Consciousness Of Guilt Is Insufficient
68.4 Accessory After The Fact: Locus Delicti As Defense Theory
68.5 Collateral Estoppel As Defense To Accessory Charge
68.6 Accessory After The Fact To Murder: Defense Theory That Aid Was Rendered Before The Victim Died
68.7 Accessory After The Fact: Lack Of Knowledge That Felony Was Committed
68.8 Accessory After The Fact: Silence Is Not Sufficient
68.9 Accessory After The Fact: Mistaken Belief That The Underlying Felony Was Committed Is Not Sufficient If The Felony Was Not Actually Committed
68.10 Accessory After The Fact: Lack Of Intent To Prevent Apprehension As Defense Theory
68.11 Accessory Instruction As to One Defendant And Not The Other May Be Improper Comment On Facts (Multiple)
68.12 Distinction Between Accomplice And Accessory After The Fact
68.13 Defense Theory Of Accessory After The Fact As Lesser Offense
68.14 Accessory After The Fact: Federal Circuit Model Instructions And Notes

Chapter 69: Corporate Liability

69.1 Corporate Liability/Entity Responsibility
69.2 Personal Responsibility Of Corporate Agent

Chapter 70-75: [Reserved]