Accomplice Liability

1. Accomplice Liability Class #8

2. Complicity • Circumstances under which a person who does not personally commit a proscribed harm may be held accountable for the conduct of another person with whom he has associated himself • Primary party = person who personally commits the physical acts that constitute an offense • Secondary party = person who is not the primary party but who is associated with him in commission of the offense

3. General Principles • S is an accomplice of P in the commission of an offense if he intentionally assists P to engage in the conduct that constitutes the crime • Assisting = aiding, abetting, encouraging, soliciting, or advising • Accessory before the fact : person who solicits, counsels, or commands the principal in the first degree to commit the offense • Accessory after the fact: one who, with knowledge of another’s guilt, intentionally assists the felon to avoid arrest, trial, or conviction

4. Assistance – Actus reus • Assistance by physical conduct: • Ex: S may assist P by furnishing him with an instrumentality to commit the offense or by providing him with a service • State v. Hayes • Assistance by psychological influence • Assistance by omission • Only if the omitter has a legal duty to intervene. Otherwise, no general duty to inform the poolice authorities of an impending crime or to stop the crime that is occurring. • A person is not an accomplice unless his conduct in fact assists in the commission of the offenses. • Hicks v. US • S is not an accomplice in the commission of a robbery if he is present at the scene of the crime in order to aid P if necessary, but his assistance is not called upon, and assuming that there are no additional facts to support a claim of assistance by encouragement. • Once it is determined that S has assisted P, the degree of aid or influence provided is immaterial.

5. Example

6. Causation • A secondary party is accountable for the conduct of the primary party even if his assistance was causally unnecessary to the commission of the offense

7. Mens Rea • An accomplice must possess: (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense, and (2) whatever mental state is required for commission of the offense (as provided in the definition of the substantive crime).

8. Mens Rea • « The feigning accomplice » • When a police officer or a private person joins a criminal endeavour as an accomplice and feigns a criminal intent in order to obtain incriminating evidence against the primary party or in order to ensnare the other in criminal activity

9. Example: Wilson v. People • S and P, drinking partners, got into an argument over S’s assertion that P had stolen his watch. A conversation followed in which the two men agreed to steal property from V’s drugstore. In furtherance of the agreement, S assisted P to enter V’s store. While P was inside, S called the police and then returned to the drugstore and took property handed to him by P. Before the parties could leave, the police arrived and arrested S and P for burglary and larceny. • Was S properly acquitted as an accomplice in these crimes?

10. Mens Rea • The meaning of intent: purpose vs. knowledge • Example: S rents his house to P, the manager of an illegal gambling enterprise. Is S an accomplice in P’s illegal activities if he rented the property with knowledge of the tenant’s criminal activities, or must it be proved that he shared P’s criminal purpose? • Most courts hold that a person is not an accomplice in the commission of an offense unless he shares the criminal intent of the principal. Some courts still permit conviction on the basis of knowledge. • Rosemond v. United States

11. Mens Rea • Liability for crimes of recklessness and negligence • Is it logically possible for a person to be an accomplice in the commission of a crime that prohibits a reckless or negligent result? • Riley v. State; State v. McVay • The overwhelming majority rule is that accomplice liability is allowed in such circumstance. Conviction of an accomplice in the commission of a crime of recklessness or negligence is permitted as long as the secondary party has the two following mental states: • (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense • (2) the mental state (intent, recklessness, or negligence) required for commission of the substantive offense

12. Examples • S encourages P to drive well above the legal speed limit on a public road near a school. • While speeding, P loses control of the car and strikes and kills V, a child leaving school for the day. • While speeding, P negligently turns the wrong way in a one-way street, thereby striking and killing V.

13. Mens Rea • Attendant circumstances • The mens rea regarding the substantive offense should control the accomplice’s situation • Ex: S intentionally assists P to have sexual intercourse with V, a nonconsenting woman. P realizes that V is not consenting but S negligently believes that V is consenting. Is S guilty of rape as P’s accomplice? • What if V is consenting but is below the statutory age for sexual intercourse?

14. Natural-and-probable consequences doctrine • At common law, and in most jurisdictions, a person encouraging or facilitating the commission of a crime may be held criminally liable not only for that crime, but for any other offense that was a natural and probable consequence of the crime aided and abetted. • State v. Linscott • Liability is measured by whether a reasonable person in the accomplice’s situation would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.

15. Natural-and-probable consequences doctrine • Four questions: • Did P commit the target crime A? • If yes, was S an accomplice in the commission of that offense? • If yes, did P commit any other crimes? • If yes, were those crimes B and C, although not contemplated or desired by S, reasonably foreseeable consequences of crime A?

16. Example • S intentionally aids P in the commission of an armed bank robbery, by driving P to the bank and serving as a lookout from that position. During the robbery, P forcibly moves bank teller V to a back room (kidnapping). Is S guilty of kidnapping? • During the robbery, P sexually assaults a customer in the bank. Is S guilty of sexual assault?

17. Limits to accomplice liability • Legislative exemption rule • A person may not be prosecuted as an accomplice in the commission of a crime if he is a member of the class of persons for whom the statute prohibiting the conduct was enacted to protect. • Ex: statutory rape laws enacted to protect teenagers from immature decisions to have sexual intercourse

18. Limits to accomplice liability • Abandonment • A person who provides assistance to another for the purpose of promoting or facilitating the offense, but who subsequently abandons the criminal endeavor, can avoid accountability for the subsequent criminal acts of the primary party. • The accomplice must communicate his withdrawal to the principal and make bona fide efforts to neutralize the effect of his prior assistance • For example, one who provides an instrumentality for use in the crime must regain possession of it or otherwise neutralize its effects • On the other hand, one who has offered nothing more than mild encouragement may be able to neutralize his effect by communicating his objection to the crime, unless he provides it at the point at which the event is virtually unstoppable.

19. The Pinkerton doctrine • Pinkerton rule: • Each member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose, i.e., all acts within the reasonable and probable consequences of the common unlawful design

20. Model Penal Code • Forms of liability: • A person is guilty of an offense if he commits it by his or her own conductor by the conduct of another person for which he is legally accountable, orboth. • Three forms of accountability: • Through an innocent instrumentality • Miscellaneous accountability • Accomplice accountability

21. MPC – Forms of accountability • Accountability through an innocent instrumentality: • One is guilty of the commission of a crime if he causes a person to engage in the criminal conduct • A person is legally accountable for the conduct of an innocent or irresponsible person if she (1) has the mental state sufficient for the commission of the offense and (2) causes the innocent or irresponsible person to engage in the criminal conduct • Miscellaneous accountability: • A person may be held accountable for another person’s conduct if the law defining an offense so provides • A legislature may enact special laws of accomplice liability, as for example when it prohibits aiding and abetting a suicide attempt, or knowingly causing or facilitating a prison escape

22. MPC – Forms of accountability • A person is legally accountable for the conduct of another person if he is an accomplice of the other in the commission of the criminal offense • Form of liability which is independent of the innocent-or-irresponsible person doctrine • The MPC does not apply the Pinkerton doctrine of conspiratorial liability. Nor does it apply the natural-and-probable-consequences doctrine.

23. MPC – Accomplice liability – Actus reus • S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he: (1) solicits P to commit an offense, (2) aids, agrees to aid or attempt to aid P in the planning or commission of the offense, or (3) has a legal duty to prevent the commission of the offense, but makes no effort to do so.

24. MPC – Mental State • A person is an accomplice if he assists « with the purpose of promoting or facilitating the commission of the offense. »

25. MPC – Limits to accomplice liability • A person is not an accomplice in the commission fo an offense if any one of three circumstances exist: • S may not be convicted as an accomplice if he is the victim of the offense • S is not an accomplice of P if S’s conduct is « inevitably incident » to the commission of the offense • A person is not an accomplice in the commission of a crime if he terminates his participation before the crime is committed and if he: (1) neutralizes his assistance, (2) gives timely warning to the police of the impeding offense, or (3) in some other manner attempts to prevent the commission of the crime.