Criminal
Law Class Notes
Last
time, we dealt with the “second intent” in the mens rea portion of accomplice liability. In People v. Lauria, we asked what the law really means by intent
in the context of acommplice liability.
Today’s
cases, however, add still more complexity to this mens rea question.
Foster
was charged with kidnapping, assault, and being an accessory to criminally negligent
homicide. He was out trying to find
someone who raped his girlfriend.
What
did Foster do that allegedly made him an accomplice? He gave his friend a knife and told him to
keep the “suspect” from fleeing while Foster fetched his girlfriend. His friend then negligently killed the “suspect”.
What
is Foster’s argument that he shouldn’t be convicted of accessory to criminally
negligent homicide?
What
was Foster’s assistance in this case? He
gave his friend a knife. If we use that “furnishing
of the instrumentality” as the actus
Foster
argues that he’s being charged with the intention that his assistance causes
something unintentional. If you
intend a homicide, shouldn’t you be charged with murder, not criminally negligent
homicide? Can you ever be an accomplice
to a crime that doesn’t involve intent?
Foster says no.
Who
was the principal in the first degree?
It was Cannon, the perpetrator of the crime. Was Cannon convicted of criminally negligent
homicide? It seems like he must have
been, otherwise there couldn’t be accomplice liability. Derivative liability is the basis for accomplice
liability. The accomplice derives his liability
from the principal. In order to convict
Foster as an accomplice, there must have been a crime that occurred.
Let
us focus on Cannon for a moment. What
arguments could Cannon’s attorney make against the charge of criminally negligent
homicide? It could have been
self-defense. If Middleton really was
the rapist, there was reason to think that the razor used in that crime is
still on him. There might be other defenses
available in this case. For example, a
citizen can make arrests for serious crimes.
What other arguments might be available?
Maybe you could argue that Cannon didn’t commit any act, but rather the victim
impaled himself on the knife. Therefore,
the prosecutor may not have proven the voluntary act element beyond a
reasonable doubt. That argument might
not win, but it might be worth a shot.
So
can we get Foster as an accomplice? The court
says that the “dual intent” argument was meant to be used only for an
underlying crime of intent.
However, if the underlying crime is not a crime of intent, we only
require the same level of culpability as the underlying crime.
In
this case, we still need to prove the first intent, but what is really required
for the crime is simply that the person have the mens
rea required for the commission of the offense.
If the crime has a mens rea of intent, then the “second intent” would be
intent. But if the crime is a
crime of recklessness, the mens rea required would be recklessness.
The
“second intent” is a misnomer, except for crimes of intent.
What’s
the policy argument for stating accomplice liability in this way? The court asks why we would require a higher
mens rea for the accomplice than we do for the principal. If we’re willing to convict Cannon on the
basis of criminal negligence, why should we require a higher mens rea for
Foster? This seems like a sensible
policy argument. If the legislature has
decided that people should be punished for criminally negligently killing
people, then people who help them should be judged and punished just the same.
What
makes a risk unjustifiable? It’s product
of the gravity and the risk of the harm.
This is the Learned Hand formula, more or less. What goes on the other side of the
balance? It’s her purpose in encouraging
the cab driver to speed.
Look
at § 2.06(4): it deals with result crimes.
(4) When causing a particular result is an element
of an offense, an accomplice in the conduct causing such result is an
accomplice in the commission of that offense if he acts with the kind of
culpability, if any, with respect to that result that is sufficient for the
commission of the offense.
The
result is the death of Carl. Subsection
4 applies in this case because we’re dealing with a result crime:
homicide.
If
we want to find out whether someone is an accomplice in the commission of an
offense, we go back to § 2.06(3):
(3) A person is an accomplice of another person in
the commission of an offense if:
(a) with the purpose of
promoting or facilitating the commission of the offense, he
(i) solicits
such other person to commit it, or
(ii) aids or agrees or
attempts to aid such other person in planning or committing it, or
(iii) having a legal duty
to prevent the commission of the offense, fails to make proper effort so to do;
or
(b) his conduct is
expressly declared by law to establish his complicity.
So
an accomplice in the conduct becomes an accomplice in the offensive if they act
with the kind of culpability with respect to that result that is
sufficient for that offense. If the defendant
doesn’t have that kind of culpability, they should be acquitted of that
offense.
Look
at § 2.06 as a three-step question:
1. What conduct
caused the result?
2. Was the defendant
an accomplice in the conduct that caused the result?
3. If yes, did
the defendant have the level of culpability regarding the result, as
stated in the definition of the offense?
If you don’t solicit the thing that caused the
result, you can argue that you weren’t an accomplice.
Know
how to use § 2.06(4)!
How did Linscott get in trouble? He and some friends decided to rob a reputed
cocaine dealer. They drove up to his
house and made a plan. Originally, they
were going to go in the back door to keep the dealer from getting his gun. They couldn’t due that due to snow. They decided to do a different plan: rush in
and do a show of force such that the victim wouldn’t have time to go for his
gun. Instead, they broke in and Fuller
immediately shot and killed the dealer.
The prosecutor is willing to concede that Linscott
intended the robbery but not the murder.
It’s
not just a robbery: it’s a burglary! The
bullet broke and entered the dwelling house at night. There was the intent that a felony be
committed therein: robbery or maybe homicide.
We have a common law burglary in this case. This is also a felony-murder case. They didn’t charge felony-murder though. What was the level of culpability of the
underlying crime with which the principal in the first degree has been charged? It was purpose. Firing a bullet directly at the victim is a
plausible argument that he intended to kill.
But we’re not interested in the principal in the first degree here, we’re
interested in Linscott.
What
is Linscott’s constitutional argument? He says that if you convict him with
intentional murder without showing that he possessed the mens rea of intent,
you’re convicting him without proving each element of the crime beyond a
reasonable doubt.
How
does the court get around that?
The
difference between intent murder and negligent homicide is the defendant’s
culpability, and it results in a big difference in the potential penalty. Why don’t we follow this principle in this
case?
It
appears that Linscott was only negligent as to the victim’s
death. If the perpetrator of a negligent
homicide would get, say, 5 years in prison, why should an accomplice to murder
get life in prison? In the last case,
the court said that commensurability is the key. Why should we be willing to punish an accomplice
based on a lesser mens rea than that of the primary offender?
“Natural
and probable consequences” doctrine
A
majority of jurisdictions follow the “natural and probable consequences”
doctrine. This basically means the same
thing as “foreseeable consequences” which more or less means the same thing as negligence.
Note
that the Model Penal Code rejects the “natural and probable consequences”
doctrine.
To
understand how this doctrine works, you first ask the question, basically: was
the defendant an accomplice of this other person as to Crime #1? In this case, Linscott
was, unarguably, an accomplice in the robbery.
He meets all the normal criteria of being an accomplice to the
robbery. He assisted the robbery, he had
the proper intent; he should be convicted of robbery. Once you do that, if Crime #2 was also
committed, a person who was an accomplice in Crime #1 will also be deemed an accomplice
of Crime #2 if Crime #2 was a natural and probable consequence of Crime
#1.