Criminal Law for Paralegals: Chapter 7 Introduction

Tab Text Chapter 7

Principals, Accessories, and Attempt

Introduction This chapter addresses the culpability of principals and accessories, and their respective guilt. A person who is present when a crime is committed is a principal, whether they are acting as a lookout or aiding in the commission of the crime in some other manner. Someone who is not present when the crime is committed, but helps in the planning of the crime, is an accessory before the fact. An accessory after the fact is someone who helps to conceal the crime or the perpetrator after a crime has been committed.

A conspiracy occurs when two or more people agree to commit a crime. Conspirators can be punished for both the conspiracy to commit a crime as well as the crime itself. This chapter also discusses those who attempt to

commit a crime, by making preparations to commit a crime and taking an action in furtherance of the crime. All of these categories of perpetrators, principals, accessories, and those who attempt criminal activity, can be prosecuted for their criminal actions.

Lecture Notes

Tab Text Principals and Accessories

Principal A principal is the person who commits the crime or who is present when the crime is committed. While there is a technical distinction between principals in the first degree and principals in the second degree, courts generally do not distinguish their roles at the time of sentencing.

Principal in the First Degree: A person who commits the crime

Principal in the Second Degree: A person who aids in the commission of the crime and is generally physically present or close by at the time of the crime (e.g., a lookout).

Accessory An accessory helps in planning the crime or assists the principal either before or after the crime occurs.

Accessory Before the Fact: A person who helps to organize the crime but is not physically present at the time the crime is committed.

Example: Eliot Gould agrees to provide Brad Pitt and his friends the money they need to rob the MGM Grand’s central repository. He provides money to purchase the equipment the team needs and provides accommodations for them while they are planning the scheme. Joe is an accessory before the fact.

Accessory After the Fact: A person who helps a perpetrator avoid prosecution after the crime.

Example: A girlfriend allows her boyfriend to stay in her home after he commits a robbery, to help him avoid the police who have staked out his home.

Accomplice Some states have abolished the distinction between the principal and the accessory and charge those who aid in the commission of a crime as an accomplice.

Conspiracy A criminal conspiracy occurs when

(1) two or more people enter an agreement (2) to commit a criminal act and (3) committed an “overt act” in furtherance of the crime.

Example: Jesse and Richard plan to rob the MGM Grand Hotel in Las Vegas, Nevada. They intend to pose as security officers conducting a “bank run” in order to collect the daily revenues from the hotel. In furtherance of their plan, Jesse purchases an old model Brinks security vehicle. Jesse also purchases uniforms from a former Brinks security officer, now an undercover officer for the Las Vegas Metro Police Department. The officer arrests Jesse and the two are charged with conspiracy to commit bank robbery.

Wharton’s Rule: When two people are required for a crime to be committed, and only two people are involved in the commission of the crime, they cannot be charged with conspiracy. Examples: Prostitution and gambling vs. Solicitation Solicitation to commit a crime is an offer or request by one person to another to commit a crime. The most common example is prostitution. Criminalizing

solicitation is intended to prevent or reduce the occurrence of criminal activity e.g., if the prostitutes have no customers, theoretically, they would stop their criminal activity.

Paralegal Practice Tip: The key to criminal conspiracy is the agreement. The prosecution must show that the conspirators acted pursuant to their agreement, even if the crime itself has not been committed. For defense purposes, it is important to rebut the prosecution’s claims that an agreement existed.

Attempt Attempting to commit a crime is considered criminal activity if the individual takes a substantial step in furtherance of the crime (e.g., entering a bank with a gun).

Defense Note: If the defendant voluntarily abandons his attempt to commit a crime, then he cannot be successfully be prosecuted for attempt. Abandonment can occur when an individual makes a statement such as “I’m not going to do this” and leaves the scene.

Paralegal Practice Tip: Create a sentencing file for easy reference. Copy the relevant criminal statutes that your office encounters on a daily basis and create a “sentencing chart” listing the possible sentences for the crimes.

Application

Tab Text In the first two scenarios below, the answer to the question, “Has Sue committed attempted armed robbery?” is no. However, in question 3, she has taken a substantial step toward making the crime a reality and could be prosecuted for attempt.

1. While Sue is cashing a check at the bank, she notes the location of the various security cameras. She then notes that the bank only has one security guard who is quite elderly. She hatches a plan to rob the bank. Has she committed attempted armed robbery?

2. (Same facts as the previous question.) Sue takes a revolver with her and parks in the parking lot of the bank. She sits in the car, studying her diagram and going over her plan to rob the bank in her mind. She is waiting there, with the gun in her hand, when a police officer stops by and asks her what she is doing. Has she committed attempted armed robbery?

3. How far would Sue have to go before she could be charged with attempted armed robbery?

4. Review the facts in the Marbles case (Appendix 1). If Marbles had only climbed the back stairs of the movie theater and jimmied open the back, and was then caught before he could actually enter, could he have been charged with any or all of the following: attempted burglary, attempted kidnapping, attempted assault?

Marbles could be charged with attempted burglary. The presence of the other weapons on his person would probably justify a charge of attempted assault. However, the charge of attempted kidnapping is probably not justified under these facts. There is no indication that he has a plan to kidnap anyone.

Chapter Review

Tab Text 1. Explain the difference between a principal in the first degree and a principal in the second degree.

2. Explain the difference between an accessory before the fact and an accessory after the fact. Which person is punished more severely?

3. Why was the classification of accomplice created?

4. What is the definition of conspiracy?

5. What qualifies as an “overt act” in conspiracy law?

6. Your text suggests that members of a conspiracy don’t even have to know one another. On a practical level, how could such a conspiracy be organized if the members didn’t know each other? Explain.

7. Explain Wharton’s Rule.

8. Explain solicitation.

Chapter Review Answers

Tab Text 1. Explain the difference between a principal in the first degree and a principal in the second degree.

The important difference between these two classifications is that a principal in the first degree is the active participant in the crime. This person is present and taking an active role in the illegal activity. A principal in the second degree is someone who takes a less active role or is only constructively present, such as acting as a lookout some distance away from the main action of the crime, or waiting outside the crime scene in a getaway car. Prosecuting these individuals as principals sends a direct and unmistakable message to criminals: Participate in a crime and you will suffer the same sentence as the person who carried it out.

2. Explain the difference between an accessory before the fact and an accessory after the fact. Which person is punished more severely?

An accessory before the fact is someone who offers aid, counseling, or planning to a person who is planning on committing a crime. An accessory after the fact is a person who offers aid or assistance to someone who has already committed a crime and is often a fugitive from the police. Of the two, accessory before the fact is considered more culpable and is punished more severely than an accessory after the fact. After all, the accessory, before the fact helped put the crime into action, whereas the accessory after the fact didn’t have any involvement in the crime, but is, instead, offering assistance after the fact.

3. Why was the classification of accomplice created?

The classification of accomplice was created to address some of the peculiarities and problems with the law of accessories. For one thing, not all people’s actions could be neatly categorized as accessory before the fact, principal in the second degree, and principal in the first degree. To clear up some of the legal complexities, the category of accomplice was created and took the place of the various degrees of accessories and principals.

4. What is the definition of conspiracy?

A criminal conspiracy is defined as:

* An agreement between two or more persons

* To work together to carry out an illegal act, coupled with

* An “overt act” in furtherance of the agreement

5. What qualifies as an “overt act” in conspiracy law?

An overt act is any action in furtherance of the conspiracy; it can be either legal or illegal action, but one that is clearly designed to help the conspiracy achieve its goals.

6. Your text suggests that members of a conspiracy don’t even have to know one another. On a practical level, how could such a conspiracy be organized if the members didn’t know each other? Explain.

A central figure could know the various members of a conspiracy, but have arranged matters so that the members don’t know each other. Such an arrangement would be beneficial to the members since they could not betray the identities of the other members if the police should catch them.

7. Explain Wharton’s Rule.

Wharton’s Rule is also known as the Concert of Action Rule. It is a simple rule that states whenever a crime requires two people to complete it, the number of conspirators must be more than two. Prostitution is the most common example, since it requires not only someone to offer to perform sexual services in exchange for money, but also someone to whom this offer is made. In such a situation, there would have to be three people involved before any could be charged with conspiracy to commit prostitution.

8. Explain solicitation.

To solicit is to request someone else to commit a crime. It is different from coercion or entrapment (discussed in later chapters) in that no force or other inducement is offered to the person. Instead, when a person asks another person to commit a crime, it is solicitation.

Chapter Quiz

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