"Life is made partly by what we make it, and partly by the friends we choose" (Tehyi Hsieh)
An accomplice is someone who knowingly, voluntarily, and with common interest, participates in the commission of a crime, and can be charged with the same crime(s) for which the accused will be tried; complicity means association in a wrongful act; principal means anyone involved in committing a crime; an accessory before the fact aids, incites, or abets but is not physically present; an accessory after the fact receives, comforts, relieves, or assists a felon to avoid apprehension and conviction.
In accomplice law (complicity), the statutory law has evolved much beyond the common law, and the case law is extensive and confusing about exactly where the lines are drawn. Complicity is a concept that can be abused by prosecutors. Only a few basic restrictions exist: (1) the law does not recognize accomplices to any misdemeanor or the crime of treason; (2) an accomplice must normally be physically present during commission of the crime, but advice or words of encouragement beforehand as well as providing material assistance afterwards will create a liability; (3) no one can be convicted on the uncorroborated testimony of an accomplice alone; and (4) persons giving postcrime aid are punished less severely than those furnishing precrime aid.
Most states have abolished the old common law distinction between principles (in the first degree, in the second degree) and accessories (before the fact, after the fact), preferring instead the word accomplices for the latter group which treats everyone as principals based upon the doctrine of complicity (participation transfers liability).
Being an accomplice is NOT the same as:
accessory after the fact -- this remains, in some jurisdictions, a separate and less serious offense for giving aid and comfort (harboring) to a fugitive. The law sees it as a separate offense because it's really helping someone avoid arrest or escape punishment more than helping someone commit a crime. Accessories always have a claim to less punishment.
conspiracy -- conspiracy is a completely different crime; according to the Pinkerton rule, a person can be charged with both conspiracy to commit a crime and the crime itself under the law of accomplices (Example: two people agree to commit murder, and one acts as a lookout while the other kills somebody; both can be charged with conspiracy to commit murder and murder itself).
facilitation or solicitation -- these are separate offenses, related to the ideas, respectively, of making it easier for someone to commit a crime and enticing someone to commit a crime that never occurs (Examples: aiding a juvenile who is used in crime to limit someone's exposure to prosecution; soliciting a prostitute; of the two, facilitation is closest to accomplice law).
There are two (2) doctrines in this area to remember:
(1) the doctrine of complicity -- this establishes the notion of "accomplice liability" which for anyone aiding, abetting, or giving counsel to a known felon has that felon's actus reus and mens rea attributed to them. Their participation is what creates the liability as if they had committed the crime alone.
(2) the doctrine of respondeat superior -- this establishes the notion of "vicarious liability" where a master is responsible for the illegal conduct of their servant. The relationship is what creates the liability. It dispenses with the element of actus reus in the same way strict liability dispenses with the element of mens rea. It often comes up in business, where a corporation (as an entity, not a person) cannot commit a crime (cannot form criminal intent) but it can be held "criminally liable" if the only punishment sought is a fine or seizure of property. Officers of a corporation can be punished by imprisonment only if the corporation has been held "criminally liable" first, the officer has been found guilty of malfeasance, misfeasance, or nonfeasance by their corporation, and (unless stated otherwise in statute) the officer causes, requests, commands, or in any way authorizes the illegal act to be committed.
ELEMENTS OF THE OFFENSE
There are three (3) elements to accomplice liability:
(1) proof that someone committed the underlying crime -- it is not necessary, however, for the government to have tried and convicted somebody, or even that the principal is identified; proof in this sense means probable cause that a crime was committed.
(2) actus reus -- accomplice law eases the requirement of proving actus reus, but it does so with hard-to-define words. Words such as "aid", "abet", "assist", "counsel", "induce" or "incite" may have different meanings depending upon what jurisdiction you're in. Normally, you can't be considered as an accomplice simply for being there -- you must be constructively present -- this is known as the Mere Presence rule, but there are exceptions in places with Good Samaritan laws where you can be tried as an accomplice for just standing there and watching someone get beaten, e.g.
Case law has ruled the following are examples of accomplice actus reus:
acting as a lookout
providing guns, supplies, or instruments of crime (even under color of financial transaction if seller is aware of purpose)
driving a getaway vehicle
sending the victim to the principal
preventing warnings from reaching the victim (but not merely failing to disclose the occurrence of a crime to authorities)
(3) mens rea -- this is the element that it all boils down to in obtaining a conviction for being an accomplice. All the words used in accomplice law ("abet" for example) carry an implication of purposive attitude toward the crime. Other courts have held to a less strict standard than "purposively" (even thought the MPC recommends this only) such as "knowingly" but still other courts have allowed "recklessly".
Case law has ruled the following are examples of accomplice mens rea:
an intent that the crime be committed; an affirmative desire to see it done
knowledge that they are contributing to the commission of a crime, knowing that the outcome would have a dangerous result or criminal consequences
recklessness and negligence under such circumstances as to indirectly benefit or share in the financial proceeds of the crime; a "stake" in the outcome
There are three (3) ways to offer a defense to the crime of being an accomplice:
(1) Mistake of fact -- this is not the same as "I didn't know it was a crime" (mistake of law) but a mistake of fact good faith claim because of the way a person perceives the world and makes reasoned judgments
(2) Abandonment -- the complicity was abandoned in a timely manner; the accomplice terminated their participation either completely or in part such as to deprive the principal of effectiveness at committing the crime; "I didn't help so they could get caught and learn their lesson"
(3) Withdrawal -- the complicity was repudiated voluntarily (not merely because of a fear of getting caught); "I didn't help because it was wrong"; some attempts are made to neutralize or thwart the crime such as by notifying authorities
(1) David had been telling everyone in town, including his live-in mother, that he was going to kill his wife, that she was going to have an accident some day. One night after going to bed, David choked his wife to death for refusing to make love to him. He dragged the body down to the first floor to dismember it in the bathtub. He called down to the basement, where his mother slept, woke her up, and asked her to come up and lie on the first floor couch. The mother came upstairs, half asleep, and dozed on the couch. Under oath, the mother claimed to see her son dismembering the body in the bathroom but turned her head away so she would not see. Dave cleaned up the bathroom a bit, and disposed of the bags in a local lake. On the way out, he asked his mother to clean up the bathroom toilet and tub, and she did. The next day, the mother also agreed to corroborate David's story that his wife ran away. Under oath, David said he told his mother he killed his wife and was disposing of the body where no one would find it. His mother reportedly sobbed a bit and said "it will be for the best, son"
This case does NOT qualify the mother as an accomplice, the reason being that the mother was asleep when the crime was committed. No presence, companionship, or counsel was provided by the mother before or during the offense. She cooperated by cleaning up the bathroom, but is insulated (by state statute) from accomplice after the fact because of her relationship as a parent. At most, she passively acquiesced or passively approved. The statement "it will be for the best, son" does not qualify as active encouragement or instigation. Further, since there's no Good Samaritan law (in this state), the mother as well as David's coworkers and people about town cannot be held liable for not preventing the murder.
(2) Your wife of forty years is dying from a horrible, incurable disease. Because she cannot do it herself, she asks you to get her some poison so she can kill herself. You comply, placing the poison in a glass by her bed.
YES - you are aiding and abetting a suicide, and the real criminal act is placing the poison within reach of your wife.
(3) One of the passengers in a car you're driving robs a hitchhiker you've picked up and are about to drop off.
NO - nothing was said or done to indicate your approval or disapproval of the robbery by simply being driver of the automobile.
(4) You are too drunk to drive your own car any more, so you let your best friend drive the rest of the way home. He's driving pretty carelessly, but still better than you could do. Unfortunately, your car collides head-on with old lady who dies from the injuries.
YES - you are an accomplice to vehicular manslaughter and can be charged and penalized the same as the driver because (a) you put your vehicle (an instrumentality) in the hands of a criminal, (b) you sat side-by-side with the criminal, and (c) you permitted the criminal to continue driving (committing crime) without protest.
(5) You are the owner of a rental car company, and two of your cars have been missing for about 2 months. The guys that rented them were kinda shady but they paid you in advance for a 1 month rental. It turns out they skipped town and racked up $50,000 in unpaid parking tickets with your cars, and the city is suing you for that money.
YES, under the principle of vicarious liability, you, the registered owner (master) of the property are responsible for the fine.
(6) Should parents be held criminally liable for offenses committed by their children?
DEPENDS, on whether state constitution is interpreted to define parenthood as an insulated (immunized) class or so essential to society that they cannot be exempted.
(7) Should stores that sell "rolling papers" (drug paraphernalia) be considered accomplices when they bust people and can prove that the papers (instrumentalities) were used in commission of a crime?
DEPENDS, on which MPC (mens rea) standard is used. A few jurisdictions may use less than "purposely."
Catholic Encyclopedia: Accomplice Complicity
Complicity, by George Fletcher, Israel Law Review
The Structure of Complicity, by Miriam Gur-Arye, Israel Law Review
Keri's Cal Bar Review Notes: Accomplice Liability
Nolo Press Encyclopedia, When You Can be Charged for Not Doing Anything
Cohen, N. & J. Gobert. (1976). Problems in Criminal Law. St. Paul: West.
Fletcher, G. (1978). Rethinking Criminal Law. Boston: Little, Brown.
Fletcher, G. (1996). Basic Concepts of Legal Thought. NY: Oxford Univ. Press.
Gardner, T. & T. Anderson. (1996). Criminal Law: Principles and Cases. 6th ed. Minneapolis: West Publishing
Posner, R. (2004). Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press.
Samaha, J. (1999). Criminal Law. 6th ed. Belmont, CA: West/Wadsworth.
Last updated: Aug 15, 2010
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