Accomplice Liability

Question 1

Under the common law who are the parties to a crime?

Answer 1

At common law, parties to a crime included:
• Principals in the first degree: persons who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so
• Principals in the second degree: persons who aided, advised, or encouraged the principal and were present at the crime
• Accessories before the fact: persons who assisted or encouraged but were not present
• Accessories after the fact: persons who, with knowledge that the other committed a felony, assisted them to escape arrest or punishment
At common law, conviction of the principal was required for conviction of an accessory, but most jurisdictions have abandoned this requirement.

Question 2

Under the modern statutes who are parties to a crime?

Answer 2

Most jurisdictions have abolished the distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All such “parties to the crime” can be found guilty of the principal offense. For convenience, however, think of the one who actually engages in the act (either personally or through an innocent agent) or omission as the principal and the other parties as accomplices.
• The principal is one who, with the requisite mental state, actually engages in the act or omission that causes the criminal result.
• An accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged.
Note: An accessory after the fact (one who assists another knowing that they have committed a felony in order to help
them escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.

Question 3

What is the mental state required to be a accomplice?

Answer 3

In order to be convicted of a substantive crime as an accomplice, the accomplice must have (1) the intent to assist the principal in the commission of a crime; and (2) the intent that the principal commit the substantive offense. When the substantive offense has recklessness or negligence as its mens rea, most jurisdictions would hold that the intent element is satisfied if the accomplice (1) intended to facilitate the commission of the crime; and (2) acted with recklessness or negligence (whichever is required by the particular crime).

Question 4

What is provision of material?

Answer 4

In the absence of a statute, most courts would hold that mere knowledge that a crime will result is not enough for accomplice liability, at least where the aid given is in the form of the sale of ordinary goods at ordinary prices (for example, a gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist). However, procuring an illegal item or selling at a higher price because of the buyer’s purpose (for example, charging the arsonist $100 for the gallon of gas) may constitute a sufficient “stake in the venture” to constitute intent.

Question 5

What is the scope of liability?

Answer 5

An accomplice is responsible for the crimes they did or counseled and for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were probable or foreseeable.

Question 6

What are the exclusions from liability?

Answer 6

a. Members of the Protected Class
Members of the class protected by a statute are excluded from accomplice liability.
b. Necessary Parties Not Provided For
A party necessary to the commission of a crime, by statutory definition, who is not provided for in the statute is excluded from accomplice liability.
c. Withdrawal
A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
• If the person encouraged the crime, the person must repudiate the encouragement.
• If the person aided by providing assistance to the principal (such as giving materials), the person must do everything possible to attempt to neutralize the assistance (such as attempting to retrieve the materials).
• Notifying the police or taking other action to prevent the crime is also sufficient. A mere withdrawal from involvement without taking any additional action is not sufficient.