The independent act defense is usually used when you are charged for conduct that was committed by another person under the Principal theory. Under the Principal theory, 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 be responsible for the acts of those who actually committed the robbery. However, if you drove a friend to the grocery store to buy some cigarettes, and while in the convenience store, the friend independently and without your prior knowledge, committed a robbery, you would raise the independent act defense. The state may charge you with robbery, believing you knew what your friend was going to do, and you would raise the independent act defense, establishing that the friend robbing the store was a completely independent act on his part and you had no involvement.
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.
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.
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