6. Module 10 - Part 1 - Accomplice Liability

What is Accomplice Liability?

A theory of liability, NOT a crime itself.

With Accomplice Liability, what is the Defendant guilty of?

The accomplice is guilty of the principal’s offense. (e.g. robbery, not aiding robbery).

How is Conspiracy different than Accomplice Liability?

Conspiracy is a separate crime punished in addition to the target offense.

Can you be found liable under both Conspiracy and Accomplice, or just one of them?

Yes. Analyze them separately.

Who is the “Principal in the first degree?” What is it called now in modern law?

It is now called the Principal.

The person who actually commits the crime or offense personally or through an innocent agent

(e.g. D tells agent, “Take that couch. It’s mine.” Agent takes it but doesn’t possess the culpable mens rea. D is still the principal).

Who is the “Principal in the second degree?”

A person who aids, counsels, commands, or encourages while actually or constructively present (e.g. a lookout who’s watching out for police to warn the perpetrator of danger)

Who is the “Accessory before the fact?”

Someone who aids, counsels, commands, or encourages the perpetrator, usually before the crime, but is not actually or constructively present when it is committed (e.g., supplies the gun or plans the heist, then stays home).

Who is the “Accessory after the fact?”

Someone who knowingly helps the felon avoid arrest or punishment (e.g. Friend supplies Defendant with food to seclude him from police)

Silence is not enough. (e.g. Friend knows Defendant robbed the bank, but doesn’t report him to police).

Under Common Law, what Mens Rea is required for Accomplice Liability?

1. purpose or knowledge as to the act of assistance; and

2. purpose or knowledge that it would bring about the crime.

3. The accomplice must personally have the mental state the crime requires. Each accomplice’s mental state is assessed individually.

Defendant plans to rob a bank and asks his friend to be the lookout for 30% of the money. The friend agrees and stands outside, ready to text if police come. The state’s robbery statute requires “purposely” as its mens rea.

Is his friend an accomplice? Explain.

Mens Rea Analysis

1) Purpose or knowledge as to assistance: he intends to act as lookout and knows it helps.

2) Purpose or knowledge that it brings about the crime: he knows his lookout role makes the robbery safer to complete.

3) The statute’s mental state (“purposely”): robbery succeeding is his conscious objective, as shown by his 30% cut.

Yes, he is an accomplice and guilty of robbery.

State v. Hoselton:

While friends broke into a storage unit on a docked barge where they fished, 18-year-old Hoselton stood at the end with an obstructed view. Asked if he was a lookout, he said, “You could say that. I just didn’t want to go down in there.” He knew of no plan, got nothing, and walked off.

Is his statement legally sufficient to prove he shared the criminal intent of the principals?

Not enough.

Accomplice/Principal in the 2nd Degree/Aider/Abettor (Hoselton): Rule to find liability

The prosecution must prove that:

Crime:

1. someone actually committed the crime itself,

Act:

2. the accomplice associated himself with the venture

3. the accomplice’s actions were aimed to make the crime go through successfully. Accomplice’s actions don’t count if the help has no effect at all (e.g. bank door won't budge hypo).

Mental State:

4. the accomplice participated in it as something he wished to bring about

5. the accomplice had the mental state the crime requires

Accomplice/Principal in the 2nd Degree/Aider/Abettor: Rule to find liability for mens rea component under MPC

1. purpose to promote or facilitate the conduct; and

2. For result based crimes: the culpability the offense requires for the result, such as recklessness

3. Attendant circumstances (e.g., a victim’s age): courts are split. Some mirror the statute (if the crime is strict liability as to age, so is the accomplice). Others require the accomplice to know the circumstance.

Example: A urges B, “Floor it, beat that guy!” during a drag race on a crowded city street. B loses control and kills a pedestrian. B is charged with reckless homicide (recklessly causing death).

• Conduct: A purposely encouraged the racing.

• Result: the crime requires recklessness as to death, and A consciously ignored the obvious risk of killing someone on a crowded street.
  
  1. What is A?
  2. What is A if B were charged with intentional murder?

1. A is an accomplice to reckless homicide, even though he never wanted anyone to die.

2. A would need purpose that the pedestrian die. A didn’t want that, so he’s not an accomplice to murder.

Riley and Portalla fired into a crowd at a bonfire near Fairbanks, seriously wounding two; no one could tell whose bullets hit. The underlying statute (first-degree assault) requires “recklessness.” Is Riley convicted?

Yes, Riley can be convicted of first-degree assault for acting recklessly by firing into a crowd, even if it is unclear whose bullets caused the injuries.

What is the Actus Reus required by Accomplice Law?

1. an affirmative act (or omission under a legal duty) that solicits, commands, encourages, or aids.

2. The threshold is very low (a nod, a thumbs up, “good job”).

Under the MPC, what is enough Actus Reus for Accomplice liability?

An attempt to aid counts (D is robbing a bank. D’s friend shouts, “Go go! You’re so close!” D is wearing earplugs, so D never heard his friend’s aid).

Is causation between the accomplice’s affirmative act and the main perpetrator’s criminal conduct required?

No causation required; trivial aid suffices

What Actus Reus is NOT enough for Accomplice liability?

Mere presence, even continuous, with knowledge, or with an unspoken willingness to help, is not enough.

What is Professor Maurer’s test for figuring out whether the accomplice’s actus reus is enough to constitute liability under Accomplice law?

For the principal, did the accomplice’s act make the crime

1. easier?

2. safer?

3. less likely to be interrupted?

Yes to any —> likely enough.

No to all —> likely not.

State v. V.T:

Defendant and his two friends stayed overnight at a relative’s apartment. The next morning, the relative discovered two guns missing.

Two days later, a camcorder was also discovered missing and was traced to a pawn shop.

A videotape inside the camcorder featured Defendant and his friends. One of the videos featured D’s friend called his friend in D’s presence to discuss giving the camcorder to a pawnshop. D never spoke or gestured during the footage.

Is D an accomplice for theft of the camcorder?

No. Presence, knowledge, and friendship are not encouragement.

Wilcox v. Jeffery:

A saxophonist was barred from working in the United Kingdom, but performed in a London concert.

Willcox, the editor of a magazine, knowingly bought a ticket, watched without protest, and published a glowing review.

Did Wilcox aid and abet the saxophonist?

Yes. Paid presence plus profit was encouragement.

Professor: this is absurdly broad.

State v. Helmenstein:

A group of drunk young people were riding around in Hemlenstein’s car. One of them suggested breaking into the Hannover store. Carol expressed a desire for bananas.

The group drove to Hannover and three of them broke into the store. Carol didn’t.

Is Carol an accomplice?

Yes.

What MUST happen for someone to be liable as an accomplice?

The crime must actually occur. You cannot attempt to aid a crime no one commits.

Defendant gives $10,000 to a man he believes is a drug dealer (actually an undercover agent) to buy a kilogram of cocaine for resale, in exchange for repayment plus $3,500 profit and a client list.

Is Defendant an accomplice?

No. Accomplice liability requires that someone actually commit the crime. Because the agent never did, there was no crime for Genoa to have aided.

When is an Accomplice liable for a principal's secondary crime?

Natural and Probable Consequences

an accomplice is liable for a principal’s secondary crime(s) that are reasonably foreseeable, even if unintended.

Steps:

1. Principal D committed the target crime

2. The Defendant was the principal’s accomplice

3. Principal committed another crime

4. The secondary crime was reasonably foreseeable

State v. Linscott:

Linscott and three others agreed to rob reputed drug dealer Norman Grenier. Linscott broke the window with his body, and Fuller shot Grenier through it with a shotgun. The judge found Linscott did not intend to kill and probably would not have joined had he known

Was the murder a reasonably foreseeable consequence of the robbery even though Linscott did not intend to kill Grenier?

Yes.

Ed tells Vera (V) that unless she pays him $20,000, he will publish embarrassing photos of her. Vera (V) withdraws the cash, drives to the agreed spot, and hands it to Ed (D). Ed is charged with extortion, and the prosecutor also charges Vera as an accomplice.

Can Vera be held liable as an accomplice?

No. Victims can't be held liable as accomplices.

What are the limits to Accomplice Liability?

No liability for:

1. the victim

2. conduct inevitably incident to the crime (e.g. an illegal drug dealer needs a drug buyer. The buyer is not liable).

3. one who terminates before the crime by depriving aid of effect and trying to prevent the crime (e.g. giving timely notice to police)

Dan agrees to help Pete rob a bank Friday. Dan gives Pete the alarm code and promises to be the lookout.

On Thursday, Dan calls the bank manager anonymously and gets the alarm code changed, then tells Pete, “I’m out. Don’t count on me.”

On Thursday, Dan calls the police and tells them about Friday’s plan. Police stake out the bank.

On Friday morning, Dan goes to Pete’s house, hides Pete’s car keys, and begs him not to go. Even if Pete still finds a way to go, Dan made a proper effort to stop the crime.

Result?

Dan terminated aid before the crime.

His help (the code) is now useless, he notified the police, and Pete knows he has no lookout, so the encouragement is gone too.

In re Meagan R:

Oscar broke into Rodriguez’s home with the assistance of 14-year-old Meagan to have sexual intercourse. The statutory rape statute classifies minors as victims.

Is Megan an accomplice to Oscar for statutory rape?

No. Under the legislative exemption, the protected class cannot be an accomplice or conspirator.

How can an Accomplice Withdraw successfully?

An accomplice must:

1. terminate their complicity prior to the commission of the offense

2. make an affirmative act that wholly deprives their prior complicity (e.g. communicating withdrawal to the principals)

State v. Formella:

Formella agreed to be a lookout while classmates stole math exams. He then felt it was wrong, was told by janitors to leave, and waited in the parking lot.

Did Formella successfully withdraw?

No, Formella did not successfully withdraw because he failed to communicate his withdrawal to the principals or take any affirmative action to prevent the crime.

Is a getaway driver hit by a car en route to the crime scene an accomplice?

Yes. Attempted aid, no voluntary termination

D’s lookout calls the police mid-heist. Did he withdraw?

No, too late

1. D is planning on blowing up an office. D2 sells him the explosives knowing it will be used to blow up the office building. What is D2?

2. What if D2 remains silent after D blows up the office?

1. Accessory before the fact

2. NOT an accessory after the fact.