2.3: Parties to Criminal Acts

Accomplice

Often more than one criminal defendant plays a role in the commission of a crime. Defendants working together with a common criminal purpose or design are acting with complicity. When the participation and criminal conduct varies among the defendants, an issue arises as to who is responsible for which crime and to what degree. This chapter analyzes different parties to crime, along with their accompanying criminal liability.

At early common law, parties to crime were divided into four categories. A principal in the first degree actually committed the crime. A principal in the second degree was present at the scene of the crime and assisted in its commission. An accessory before the fact was not present at the scene of the crime but helped prepare for its commission. An accessory after the fact helped a party to the crime after its commission by providing comfort, aid, and assistance in escaping or avoiding arrest and prosecution or conviction.

In modern times, most states and the federal government divide parties to crime into two categories: principal, and accessories (Idaho Code Ann., 2010). The criminal actor is referred to as the principal, although all accomplices have equal criminal responsibility. Accomplice Elements

An accomplice under most state and federal statutes is responsible for the same crime as the criminal actor or principal (18 U.S.C., 2010). However, accomplice liability is derivative; the accomplice does not actually have to commit the crime to be responsible for it. The policy supporting accomplice liability is the idea that an individual who willingly participates in furthering criminal conduct should be accountable for it to the same extent as the criminal actor. The degree of participation is often difficult to quantify, so statutes and cases attempt to segregate blameworthy accomplices based on the criminal act and intent elements.

Accomplice Act

In most states and federal, an accomplice must voluntarily act in some manner to assist in the commission of the offense. Some common descriptors of the criminal act element required for accomplice liability are aid, abet, assist, counsel, command, induce, or procure (K.S.A., 2010). Examples of actions that qualify as the accomplice criminal act are helping plan the crime, driving a getaway vehicle after the crime’s commission, and luring a victim to the scene of the crime.

In many states, words are enough to constitute the criminal act element required for accomplice liability (N.Y. Penal Law, 2010). On the other hand, mere presence at the scene of the crime, even presence at the scene combined with flight, is not sufficient to convert a bystander into an accomplice (Commonwealth v. Hargrave, 2010). However, if there is a legal duty to act, a defendant who is present at the scene of a crime without preventing its occurrence could be liable as an accomplice in many jurisdictions (People v. Rolon, 2010).

Accomplice Intent

The criminal intent element required for accomplice liability varies, depending on the jurisdiction. In many jurisdictions, the accomplice must act with specific intent or purposely when aiding or assisting the principal (Or. Rev. Stat., 2010). Specific intent or purposely means the accomplice desires the principal to commit the crime.

Example of Accomplice Intent

Joullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that requires an accomplice to act with specific intent or purposely, Joullian must desire Winnifred to commit prostitution in the rented room to be Winnifred’s accomplice. Evidence that Joullian stands to benefit from Winnifred’s prostitution, such as evidence that he will receive a portion of the prostitution proceeds, could help prove this intent. If Joullian’s state allows for an inference of specific intent or purposely with serious crimes when an accomplice acts with general intent or knowingly, it is unlikely that prostitution is a felony that would give rise to the inference. If Joullian’s state requires only general intent or knowingly for accomplice liability regardless of the crime’s seriousness, to be deemed an accomplice Joullian must simply be aware that renting Winnifred the room will promote or facilitate the act of prostitution.

The Natural and Probable Consequences Doctrine

Accomplice liability should be imputed only to blameworthy, deserving defendants. However, in some jurisdictions, if the crime the defendant intentionally furthers is related to the crime the principal actually commits, the defendant is deemed an accomplice. As with legal causation, discussed in Chapter 4 “The Elements of a Crime”, foreseeability is the standard. Under the natural and probable consequences doctrine, if the defendant assists the principal with the intent to further a specific crime’s commission, and the principal commits a different crime that is foreseeable at the time of the defendant’s assistance, the defendant could be liable as an accomplice (ME Rev. Stat. Ann., 2010). Several jurisdictions have rejected this doctrine as an overly harsh extension of accomplice liability (Bogdanov v. People, 2010).

Example of the Natural and Probable Consequences Doctrine

José shows up drunk and unruly at his friend Abel’s house and tells Abel he wants to “beat the hell” out of his girlfriend Maria. José asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel drives José to Maria’s house and waits in the car with the engine running. José forces his way into Maria’s house and then beats and thereafter rapes her. If José and Abel are in a jurisdiction that recognizes the natural and probable consequences doctrine, the trier of fact could find that Abel is an accomplice to the battery, burglary, and rape of Maria. Abel appears to have the criminal intent required to be an accomplice to battery because he assisted José in his quest to beat Maria. If burglary and rape were foreseeable when Abel drove a drunk and angry José to Maria’s house, the natural and probable consequences doctrine would extend Abel’s accomplice liability to these crimes. If Abel is not in a natural and probable consequences jurisdiction, the trier of fact must separately determine that Abel had the criminal intent required to be an accomplice to battery, burglary, and rape; Abel’s intent will be ascertained according to the jurisdiction’s accomplice intent requirement—either specific intent or purposely or general intent or knowingly.¹¹

Accessory

The difference between an accomplice and an accessory is crucial. An accomplice is responsible for the offense the principal commits. An accessory, on the other hand, is guilty of a separate crime that is almost always a misdemeanor.

Accessory Act

The criminal act element required for an accessory in the majority of jurisdictions is aiding or assisting a principal in escape, concealment, or evasion of arrest and prosecution or conviction after the principal commits a felony (Va. Code Ann., 2010). In most states, a defendant cannot be an accessory to a misdemeanor, although in some states a defendant can be an accessory to a high-level or gross misdemeanor (N.R.S., 2010). In a minority of states, the defendant can be an accessory to any crime (Haw. Rev. Stat., 2011).

In many states, words are enough to constitute the accessory criminal act element (Minn. Stat. Ann., 2010). Often special categories of individuals are exempted from liability as an accessory, typically family members by blood or marriage (Vt. Stat. Ann. tit. 13, 2010).

Example of Accessory Act

Jim wakes up late at night to the sound of someone pounding on his door. He gets out of bed, walks down the stairs, and opens the door. His father James is on the doorstep. James’s eyes are bloodshot, and he is swaying slightly on his feet. He tells Jim that he just got into a car accident and needs to come inside before the police find out about it and begin an investigation. Jim steps aside and lets his father enter the house. The smell of alcohol on his father’s breath is apparent. He thereafter allows his father to spend the night without contacting the police about the accident.

Jim has probably committed the criminal act element required for an accessory in many jurisdictions. Jim allowed his father to escape arrest and evade an alcohol screening after leaving the scene of a car accident, which is most likely felony drunk driving and hit and run. He also sheltered his father for the night, concealing him from law enforcement. If Jim is in a state that exempts family members from accessory liability, he may not be subject to prosecution because the principal to the crime(s) is his father. If Jim is not in a state that relieves family members from accessory liability, he could be fully prosecuted for and convicted of this offense.¹²

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¹¹University of Minnesota Libraries Publishing (2015)

¹²University of Minnesota Libraries Publishing (2015)