Criminal Law Class Notes 12/1/03


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.


State v. Foster


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 reus, then he cleared intended to do the act that constituted the “aid”.  That’s the “first intent” of the “dual intent”.  But did he intend that his assistance result in the commission of the offense?


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)!


State v. Linscott

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.


Back to Class Notes