Accomplice Liability

Question 1

Principal

Answer 1

the person who possesses the required mens rea and commits the actus reus of the offense.

Question 2

Accomplice

Answer 2

someone who knowingly provides aid, assistance, or encouragement to the principal, with the specific intent that the principal succeeds in committing the crime typically before or during. An accomplice can be criminally liable to the same extent as the principal.

Question 3

CL Approach

Answer 3

Almost extinct, recognized 4 categories of criminal actors

Principal in the first degree: Performed the criminal act with the required mens rea

Principal in the second degree: Actually or constructively present at the commission of the crime and aided, abetted, or encouraged the principal in the first degree.

Accessory before the fact: Was not present at the commission of the crime, but aided, abetted, or encouraged the principal in the first degree.

Accessory after the fact: Assisted the principal in the first degree in avoiding apprehension or punishment after the commission of the crime.

Question 4

Mens Rea

Answer 4

(1) specific intent to render assistance and (2) intent that the primary party commit the offense

with the same mens rea as the principal toward the underlying crime

Question 5

Hoselton

Answer 5

Hoselton was unaware that his friends intended to steal items from the storage unit until he walked closer and saw his friends removing the goods. He then walked to their car and waited for them. Hoselton neither helped his friends place the items in the car, nor received any of the items.

A person is not liable as an accomplice merely because that person knows that the principal intends to do the crime. Silent observation is not enough

Question 6

JDX split

Assisting reckless or negligent crimes

Answer 6

Some jdx reject accomplice liability for those crimes because an accomplice cannot logically share intent to cause an unintended result.

Some jdx and MPC will impose accomplice liability if the accomplice acted recklessly or negligently in providing assistance. (see Riley, MPC)

Question 7

Riley

Answer 7

Riley and Portalla fired gunshots into a crowd of people at a bonfire. They seriously wounded two of the people. Both were charged with two counts of first-degree assault, a crime that requires one to recklessly cause a serious physical injury.

If tried as an accomplice, the State need only show that Riley intended to aid Portalla and that he did so with the same reckless disregard as possessed by Portalla.

Question 8

Accomplice Elements

Answer 8

(1) the underlying crime must be committed; (2) the defendant must encourage or aid the commission of the crime; and (3) have the required mens rea

Question 9

Genoa

Answer 9

Genoa (defendant) was approached by an undercover agent. The agent told Genoa that if Genoa loaned him $10,000 to procure a kilogram of cocaine, the agent would sell the cocaine and give Genoa a share of the profits. Genoa agreed and gave the agent $10,000. The agent passed the money to the police.

Charges dismissed because a defendant who intends to aid and abet a crime that subsequently never takes place cannot be convicted as an accomplice to that crime.

Question 10

Assistance

Answer 10

Physical conduct, psychological influence, or assistance by omission if there is a duty to act

No causation requirement.

Question 11

Ineffectual Assistance

Answer 11

Under CL, defendant must in fact assist the commission of the offense. No liability for ineffectual assistance.

NOT true under MPC

Question 12

Mere Presence

Answer 12

Presence, even with determination not to interfere or passive acquiescence, or presence with the secret intention to aid is not enough.

Presence plus minimal encouragement may be enough.

Question 13

Scope and Sentencing

Answer 13

An accomplice is liable for the underlying crime to the same extent as the principal.

Under MPC and in most jurisdictions, an accomplice can be liable even if the principal has been acquitted, has been granted immunity, or has not been tried.

Question 14

Natural and Probable Consequences

Answer 14

An accomplice will be liable for any criminal act in which the ordinary course of things was the natural & probable consequence of the crime that he advised or commanded, even if he did not intend that consequence or share the principal’s intent.

This requires that the additional offenses be (1) natural and probable consequences of the crime aided and (2) committed in furtherance of the crime aided.

Only some jdx, not MPC. Courts have refused to apply this to premeditated first-degree murder by the principal
If this does not apply, you must assess the complicity for the extra crime in the standard way

Question 15

Innocent Instrumentality

Answer 15

A person who affects a criminal act through an innocent or unwitting agent is a principal in the first degree.

This is NOT accomplice liability

Question 16

Unwitting or Innocent Agents

Answer 16

o Animals
o A person who is coerced to do the crime
o A minor (though the age and capacity is relevant)
o Someone who is legally insane

Question 17

Bailey

Answer 17

Bailey summoned the police to Murdock’s home knowing that Murdock was drunk, armed, and highly agitated. Aware that Murdock was legally blind, Bailey clearly intended that Murdock would mistake the police for Bailey and that harmful or possibly lethal consequences would result. The police had no knowledge of Murdock’s plans and acted as Bailey’s innocent or unwitting agents. Therefore, Bailey is liable as a principal in the first degree for Murdock’s murder.

Question 18

Principal’s Necessity Defense

Answer 18

If the principal successfully raises necessity or self-defense, the accomplice should receive an acquittal because he cannot derive liability.

Question 19

Principal’s Excuse

Answer 19

Principal’s excuse defense (insanity, duress) will not bar accomplice liability. Excuse admits moral wrongdoing, but the principal has a personal excusing circumstance.

Question 20

Legislative Exemption

Answer 20

A person may not be prosecuted as an accomplice in the commission of a crime if they are a member of the class of persons whom the statute prohibiting that conduct was intended to protect.

Question 21

Abandonment

Answer 21

A person who provides assistance to another to promote or facilitate a crime, but then abandons it can avoid accountability for the subsequent criminal acts of the principal. If they…

(1) communicate withdrawal to the principal
(2) undo or nullify assistance provided before the crime become inevitable

some jdx have warning law enforcement in time to prevent the crime

Question 22

Abandonment exceptions

Answer 22

If the accomplice has provided intangible advice or encouragement, some jurisdictions require that he expressly communicate to the principal that he is repudiating any past assistance and will no longer aid or encourage the crime.

Some jurisdictions no not acknowledge a withdrawal defense if the accomplice withdraws because of fear of apprehension, unforeseen obstacles that make the crime more difficult, or a belief that the circumstances are unfavorable for commission.

Question 23

MPC Approach

Answer 23

MPC 2.06(1): Guilty if actor commits offense (direct) OR the offense is committed by someone for whom the actor is legally accountable.

MPC 2.06(2): How to be legally accountable for someone: (1) Innocent Instrumentality, (2) Law makes one accountable, (3) Accomplice.

MPC 2.06(3): What is an accomplice? A person is an accomplice IF, with the purpose of promoting or facilitating the commission of the offense, they:

a. Solicit the other person to commit the offense OR
b. Aid, agree to aid, or attempt to aid such other person in planning or committing OR
c. Having a legal duty to prevent the offense, fail to make a proper effort to do so.
4. MPC 2.06(3)(b): A person may also be an accomplice if their conduct is declared by law to establish complicity.

Question 24

MPC Accomplice Definition 2.06(3)

Answer 24

A person is an accomplice IF, with the purpose of promoting or facilitating the commission of the offense, they:

(a) Solicit the other person to commit the offense OR
(b) Aid, agree to aid, or attempt to aid such other person in planning or committing OR
(c) Having a legal duty to prevent the offense, fail to make a proper effort to do so.

A person may also be an accomplice if their conduct is declared by law to establish complicity.

Question 25

MPC Attempt to Aid 5.01(3)

Answer 25

MPC 5.01(3): A person who engages in conduct designed to aid another to commit a crime that would establish complicity under 2.06 if the crime were committed by such other person is guilty of attempt though the crime is not committed or attempted by the other person.

Question 26

MPC Attempt to Aid Analysis

Answer 26

1) Start with 5.01(3)

2) Does the conduct satisfy the definition of accomplice in 2.06(3)?
A person is an accomplice if, with the purpose of facilitating or committing an offense, he…attempts to aid another person in committing it.

3) Does the conduct satisfy the attempt criteria under 5.01(1)?
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be.

Question 27

V.T.

Answer 27

Tape from stolen camcorder that shows boys on the phone discussing his plans to pawn the camcorder. V.T. is shown in the footage but he neither speaks nor gestures during the phone call.

Passive behavior such as mere presence-even continuous presence-absent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as encouragement.

Presence is only equated to aiding and abetting when it designedly encourages the perpetrator, facilitates the unlawful deed as when the accused acts as a lookout or when it stimulates others to render assistance to the criminal act

Question 28

Natural and Probable Consequences Analysis

Answer 28

1) Did the primary party commit the target offense?
2) If yes, was the secondary party an accomplice to the target offense?
3) If yes, then did the primary part commit another crime beyond the target offense?
4) If yes, then was that crime a reasonably foreseeable consequence of the target offense encouraged or facilitated by the accomplice?
(Look to specific circumstances surrounding the offense)

Question 29

Helmenstein

Answer 29

Helmenstein and several friends were driving in a car when one of them suggested that they break into a store in a nearby town. As they left, the entire group agreed on a story to tell authorities in case they were caught, making all of them accomplices or principals.

At trial, other members of the group testified against Helmenstein but there was no other evidence. Corroboration: because the court holds Zahn to be accomplice, all testimony is from commissioners of the crime and can’t convict anyone.