Criminal Law

XI. Parties to a Crime

Discussing parties to a crime establishes the conditions under which people incur liability for the conduct of another person for the second party’s acts before, during, and after the crime was committed. At times, the acts and criminal intent of one person are assigned to the acts and intent of someone else (Chevigny, 2002). For example, in a plot to kill Wilma, if Fred buys the bullets, Betty is a lookout, and Barney shoots the victim, all are equally culpable for the murder.

The area of law that helps to determine who is a party to a crime is sometimes referred to as the law of parties. It has been simplified in modern times, and the old common law labels of principal in the first degree, principal in the second degree, accessory before the fact, or accessory after the fact are rarely used. The categories have been reduced to just two: the principal and the accessory. Anyone who knowingly and willingly participates in the commission of a crime with others or who aids and abets the commission of a crime is an accomplice (LaFave, 2003).

A person aids a crime when he or she does an act that assists in the commission of a crime. A person abets a crime when he or she has knowledge of the perpetrator’s unlawful purpose to commit a crime, and as the accomplice, has the intent to facilitate the perpetrator’s unlawful purpose and engages in any of the following acts of instigating, encouraging, promoting, counseling, directing actions, or supporting by presence. Some examples of aiding and abetting include driving a getaway car, acting as a lookout, drawing a diagram to assist with a burglary, or loaning a gun with knowledge that it will be used in a murder (Robinson, 1992).

Determining if someone is an accomplice or an accessory can be tricky. Whether a person has accomplice liability or is only an accessory depends upon whether he or she assisted the perpetrator before or during the offense, or merely assisted a principal after the crime was completed. Obviously, a principal is anyone who commits the crime, but it can also include anyone who commits the following: aiding and abetting the crime, advising and encouraging the crime, or forcing another to commit a crime. Conversely, an accessory aids a principal whom he or she knows has committed a felony by assisting the principal in avoiding detection, avoiding arrest, disposing of or destroying evidence, avoiding prosecution, or avoiding punishment (McClain & Kahan, 2002, pp. 400–412).

Since all crimes require an actus reus and an accomplice does not commit the underlying crime, it can be difficult to determine what constitutes the actus reus. The law states that an accomplice, by his or her assistance in the commission of the crime, has committed the actus reus part of the crime. There is no requirement that the accomplice’s affirmative acts be a major part of the crime. All efforts, no matter how small, that aid the perpetrator suffice as the actus reus of the crime. Seemingly insignificant acts that have been deemed sufficient to serve as the actus reus for an accomplice include loaning a screwdriver, buying a sweatshirt, providing a piece of rope or tape, and loaning money for gas (LaFave, 2003, p. 671).

In some instances, an omission can be the basis of criminal liability for an accomplice. For example, if Fred works as a part-time security guard at the rock quarry and he permits Barney to steal valuable equipment from the quarry, his dereliction of duty can be the basis of accomplice liability. If an omission is for the purpose of facilitating a crime, that person is liable if he or she has a legal duty to act or intervene. It is important to note that the law will only attach criminal liability when it is reasonably safe and possible to protect the victim or property. Therefore, a schoolteacher would have a duty to stop a schoolyard fight and a parent might have a duty to stop someone from abusing his or her child if it is reasonably safe and possible to protect the victim. However, in some states, mere knowledge of the crime and failing to take action to stop it is insufficient to finding criminal liability (Dressler, 2001).

Traditionally, an accomplice cannot be found guilty of the crime unless the principal is convicted. Liability flowed through the principal to the accomplice. Today, however, states can get a conviction of the accomplice regardless of the outcome of the principal’s case as long as the prosecutor can prove that a crime was actually committed. The accomplice can be convicted even if the principal is never found, has fled the jurisdiction, or has been acquitted (Garland, 2003).

When an aider and abettor decides that she desires to remove herself from the commission of the target offense (before it has been committed), she must take active steps to undo the aid she has provided in order to avoid liability. The aider and abettor cannot go home and hide and hope that all of her troubles just go away. She must (1) inform the principal that she wishes to withdraw her support, (2) indicate that she no longer wants the crime to be committed, and (3) attempt to make any aid she has provided ineffectual. For example, if the accomplice has loaned her shotgun to a potential bank robber, she must state her intent to withdraw and attempt to do everything within her power to recover the weapon and prevent the crime. If major steps have already been accomplished toward the commission of the robbery, she might also have to inform law enforcement so that the crime can be stopped (Tiffany et al., 2003).

There is a difference between criminal liability based upon a conspiracy theory and accomplice liability. A conspirator agrees to be part of a criminal enterprise that might encompass numerous crimes committed by various members of the conspiracy. Conspirator liability extends to crimes that individual conspirators might not even know about or consent to. A conspirator does not have to do any act to aid in the conspiracy. All that is necessary to establish criminal liability is an agreement to achieve a criminal purpose with at least one conspirator committing an overt act (Frase, 2002).

A conspirator is liable for all acts of his or her coconspirators that are committed during the course of and in furtherance of the conspiracy. If Fred steals a getaway car to be used in a robbery, all conspirators are guilty of car theft, even if they never consented to or agreed with Fred’s act. This liability is based upon agency theory. Each conspirator acts as an agent for every other conspirator. Any act, planned or unplanned, committed by a coconspirator that is a foreseeable consequence of the criminal agreement, creates liability for each conspirator under the extended liability theory, also known as the Pinkerton doctrine (Demleitner et al., 2007).

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