Accidental Vitiation: The Natural and Probable Consequence of Rosemond v. United States on the Natural and Probable Consequence Doctrine

November 29, 2016


Anglo-American criminal law defines a crime as the concurrence of an actus reus and a mens rea.  This basic definition of a crime remains unchanged when a defendant is prosecuted as an accomplice, rather than a principal.  However, the natural and probable consequence doctrine, an accomplice law doctrine, allows for accomplice liability to exist in the absence of sufficient proof of mens rea.  The doctrine came from the common law and, as a result, has seen disparate application among both state and federal courts.  To date, the U.S. Supreme Court has not issued a ruling on the wisdom, legality, or constitutionality of the doctrine.

Recently, the Court decided Rosemond v. United States. In Rosemond, the Court had to determine the requisite mental state for aiding and abetting a particular federal crime.  While the Court had the opportunity to weigh in on the natural and probable consequence doctrine in Rosemond, it declined to do so in footnote 7.

This Note reviews the natural and probable consequence doctrine, its reception by courts and commentators, and the Court’s holding in Rosemond.  This Note then applies the holding of Rosemond to several federal cases that employed the doctrine to determine whether, despite footnote 7, the doctrine survives Rosemond.  Ultimately, this Note concludes the doctrine does not survive and that such a result is desirable in light of the doctrine’s incompatibility with basic principles of Anglo-American criminal law.

December 2016

No. 3