JAG CENTRALThe world's first weblog devoted to military justice and military law issues.
Monday, May 01, 2006
GOOD OLD FASHIONED CRIMLAW ISSUE
My favorite class in the first year of law school was criminal law. I had a great professor, but more than that it was the most, ermm, "philosophically satisfying" course we took. I was soon disappointed to discover that very little criminal practice concerns itself with substantive questions - where substantive means the definition of the crimes, elements, etc. Most of the attention and energy is spent on procedural stuff, especially constitutional procedure (how many years have passed without a "newsworthy" 4th or 5th amendment case?).
If you are like me, and you still have a special place in your heart for 1L criminal law stuff, you might enjoy reading United States v. Simmons, No. 05-0263 (C.A.A.F. April 24, 2006). Simmons was a 3-2 decision with 5 (yes, FIVE) separate opinions. The issue: Aider and Abettor Liability for failing to act / failing to prevent. As you may recall from crimlaw, or more likely from torts, one can be held liable for failing to act ONLY if some duty runs from the defendant to the victim. The court originally granted review of the "Was there a duty?" question, but the defendant conceded that there was a duty. The actual opinion concerns whether the guilty plea was provident:
Baker & Gierke: IMPROVIDENT because there was no evidence that Simmons shared a criminal purpose with the "real perp," ("R.P.") as required by Article 77.
Effron & Gierke: IMPROVIDENT because there was no questioning about whether the RP knew about Simmons's inaction. But for Simmons to be guilty, the inaction has to encourage the RP. (I don't really understand this. Simmons told the Judge that he thought his inaction encouraged it). One sentence seems to suggest even MORE is required...
"Here the plea was improvident because the military judge
did not explain to Appellant that it was necessary for the
perpetrator to be aware of Appellant’s nonperformance of a duty."
Effron, concurring in result (slip op. at 2; PDF file at 17). So, to be guilty of aiding and abetting assault, the RP has to KNOW the defendant has a duty to the victim? That's kind of wacky. Aiding and Abbetting already has a kind of double mens rea - the defendant must have criminal purpose, and the RP must be "encouraged" or whatever. But does he also have to know that there's a legal duty to act?
CRAWFORD: PROVIDENT because the surrounding circumstances establish the criminal intent (Simmons had been involved in hazing the victim).
ERDMANN: PROVIDENT because the facts admitted establish the criminal purpose (but by the way, not so sure there WAS a duty to act here.)
If you are like me, and you still have a special place in your heart for 1L criminal law stuff, you might enjoy reading United States v. Simmons, No. 05-0263 (C.A.A.F. April 24, 2006). Simmons was a 3-2 decision with 5 (yes, FIVE) separate opinions. The issue: Aider and Abettor Liability for failing to act / failing to prevent. As you may recall from crimlaw, or more likely from torts, one can be held liable for failing to act ONLY if some duty runs from the defendant to the victim. The court originally granted review of the "Was there a duty?" question, but the defendant conceded that there was a duty. The actual opinion concerns whether the guilty plea was provident:
Baker & Gierke: IMPROVIDENT because there was no evidence that Simmons shared a criminal purpose with the "real perp," ("R.P.") as required by Article 77.
Effron & Gierke: IMPROVIDENT because there was no questioning about whether the RP knew about Simmons's inaction. But for Simmons to be guilty, the inaction has to encourage the RP. (I don't really understand this. Simmons told the Judge that he thought his inaction encouraged it). One sentence seems to suggest even MORE is required...
"Here the plea was improvident because the military judge
did not explain to Appellant that it was necessary for the
perpetrator to be aware of Appellant’s nonperformance of a duty."
Effron, concurring in result (slip op. at 2; PDF file at 17). So, to be guilty of aiding and abetting assault, the RP has to KNOW the defendant has a duty to the victim? That's kind of wacky. Aiding and Abbetting already has a kind of double mens rea - the defendant must have criminal purpose, and the RP must be "encouraged" or whatever. But does he also have to know that there's a legal duty to act?
CRAWFORD: PROVIDENT because the surrounding circumstances establish the criminal intent (Simmons had been involved in hazing the victim).
ERDMANN: PROVIDENT because the facts admitted establish the criminal purpose (but by the way, not so sure there WAS a duty to act here.)
