SHORSTEIN, LASNETSKI, & GIHON
The independent act defense
is typically asserted by criminal defense lawyers when the client is charged for conduct that was committed by another person that was unforeseeable to the client. For example, if the client and a co-defendant agreed to beat up a victim and the co-defendant pulls out a knife and kills the person, the client's criminal defense attorney would raise the independent act defense.
It all starts with the Principal theory. The Principal theory means that if you if you decide to help someone rob a bank, but you only agree to be the getaway driver and refuse to arm yourself with a weapon, you will be charged as a principal to the robbery and you would be held responsible for the acts of those who actually committed the robbery. So, you wouldn't simply be an accessory to the robbery. You would be charged with armed robbery as a principal.
So, the independent act defense is used when two or more people agree to commit some crime, but one person independently commits a more serious crime that was not reasonably foreseeable.
What is the Independent Act defense?
In cases where there is an issue whether the crime committed was an independent act of another person, you can raise the independent act defense.
An independent act occurs when a person other than the defendant commits or attempts to commit a crime:
- which the defendant did not intend to occur, and
- in which the defendant did not participate, and
- which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.
What are some situations where the independent act defense can be asserted and where it cannot be asserted?
Florida appellate courts have addressed when the independent act defense can and cannot be asserted. For example, a Fourth District Court of Appeal case in Florida was reversed when a trial judge denied the criminal defense lawyer's request to assert the independent act defense. In that case, a young woman lured her boyfriend into a trap where several other men murdered him. Rodriguez v. State
, 174 So.3d 502 (Fla. 4th DCA 2015). The girl was charged with murder, kidnapping and other offenses. She wanted to raise the independent act defense because the evidence elicited at trial established that she didn't know that the victim was going to be murdered. In other words, the murderer acted alone and independently of any plan agreed to by the young woman.
However, the First District Court of Appeal in Florida came to a very different decision in a similar, but different fact pattern. Cannon v. State, 34 Fla.L.Weekly D136a (Fla. 1st DCA 2009). Jacksonville is in the First District. Donna Cannon was accused of convincing and helping her thirteen year old cousin to commit an armed robbery. When the cousin robbed a victim at gunpoint, the victim put up a fight and the cousin shot and killed the victim. Donna Cannon was charged with murder. She raised the independent act defense, asserting that the murder was an independent act of her cousin, but the trial judge refused to allow her to assert the independent act defense because murder is a reasonably foreseeable consequence of an armed robbery. The First DCA agreed and affirmed the conviction.
If you believe you have an independent act defense, your criminal defense attorney should raise the defense and the judge will make a legal determination whether to allow it. The judge's decision will be based on the specific facts and the case law, so every case is different. If the judge denies your criminal defense lawyer's request to assert the independent act defense and if you are found guilty by a jury, you would be able to appeal the judge's ruling to an appellate court.
What if I wasn't even at the scene of the crime when it was committed?
You don't have to be at the scene of a crime to be convicted of the offense charged it you participated in the offense and the lack of your presence at the scene of the crime is not enough in, and of, itself to establish the independent act defense, although it may be good evidence in your favor of the defense if otherwise explained by testimony and corroborating evidence.
If you or a loved one is charged with a criminal offense and you think you have an
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