Wis JI-Criminal 402

Party to a Crime

Section 939.05 of the Criminal Code of Wisconsin provides that whoever is concerned in

the commission of a crime is a party to that crime and may be convicted of that crime

although that person did not directly commit it.

Three Ways in Which Defendant Can Be a Party to a Crime

The State contends 1 that the defendant was concerned in the commission of the crime of

(name crime charged) in one of the following three ways:

1) by directly committing it;

2) by intentionally aiding and abetting the person who directly committed it; or,

3) by being a member of a conspiracy to commit the crime.

If a person intentionally aids and abets the commission of a crime, then that person is

guilty of the crime as well as the person who directly committed it. And if a person is a

member of a conspiracy to commit a crime and that crime is committed by any member of the

conspiracy, then that person and all members of the conspiracy are guilty of the crime.

Definition of Aiding and Abetting

A person intentionally aids and abets the commission of a crime when, acting with

knowledge or belief that another person is committing or intends to commit a crime, (he)

(she) knowingly either:

• assists the person who commits the crime; or

• is ready and willing to assist and the person who commits the crime knows of the

willingness to assist.

To intentionally aid and abet (name crime charged), the defendant must know that

another person is committing or intends to commit the crime of (name crime charged) and

have the purpose to assist the commission of that crime. 2

[USE THE FOLLOWING IF SUPPORTED BY THE EVIDENCE.]

[However, a person does not aid and abet if (he) (she) is only a bystander or spectator

and does nothing to assist the commission of a crime.]

Definition of Being A Member of a Conspiracy

A person is a member of a conspiracy if, with intent that a crime be committed, the

person agrees with or joins with another for the purpose of committing that crime. 3 A

conspiracy is a mutual understanding to accomplish some common criminal objective or to

work together for a common criminal purpose. It is not necessary that the conspirators had

any express or formal agreement, or that they had a meeting, or even that they all knew each

other.

If a person is a member of a conspiracy to commit a crime and that crime is committed

by any member of the conspiracy, then that person and all members of the conspiracy are

guilty of the crime. 4

[IF WITHDRAWAL IS AN ISSUE, INSERT WIS JI-CRIMINAL 412.]

State's Burden of Proof – Party To A Crime

Before you may find the defendant guilty, the State must prove by evidence which

satisfies you beyond a reasonable doubt that the defendant directly committed the crime of

(name crime charged), intentionally aided and abetted the commission of that crime, or was

a member of a conspiracy to commit that crime.

Unanimous Agreement Not Required Regarding Theory Of Party To A Crime

All twelve jurors do not have to agree whether the defendant directly committed,

intentionally aided and abetted, or was a member of a conspiracy to commit the crime.

However, each juror must be convinced beyond a reasonable doubt that the defendant was

concerned in the commission of the crime in one of those three ways. 5

Statutory Definition of the Crime

(Name crime charged), as defined in § _______ of the Criminal Code of Wisconsin, is

committed by one who (state the elements of the crime). 6

State's Burden of Proof

The State must prove by evidence which satisfies you beyond a reasonable doubt that the

following __________ 7 elements of (name crime charged) were present.

Elements of the Crime That the State Must Prove

DEFINE THE ELEMENTS OF THE CHARGED CRIME. USE THE

APPROPRIATE UNIFORM INSTRUCTIONS, OMITTING THE LAST TWO

PARAGRAPHS. USE "THE DEFENDANT OR (NAME OF OTHER PERSON) "

IN PLACE OF "THE DEFENDANT" THAT IS TYPICALLY USED IN THE

UNIFORM INSTRUCTION. IF THE NAME IS NOT KNOWN, USE "THE

DEFENDANT OR ANOTHER PERSON." 8

Jury's Decision

If you are satisfied beyond a reasonable doubt that the defendant directly committed all

__________ 9 elements of (name crime charged), or that the defendant intentionally aided

and abetted the commission of that crime, or that the defendant was a member of a

conspiracy to commit that crime and the crime was committed by a member of the conspiracy

[and that the defendant did not withdraw before the crime was committed],10 you should find

the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.