2 Subst. Crim. L. § 13.2 (2D Ed.)

For Educational Use Only

§ 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim. L. § 13.2 (2d ed.)

2 Subst. Crim. L. § 13.2 (2d ed.)

Substantive Criminal Law Current through the 2011 Update Wayne R. LaFaveao Part Two. General Principles Chapter 13. Parties; Liability for Conduct of Another

§ 13.2. Accomplice liability-Acts and mental state

In the commission of each criminal offense there may be several persons or groups which play distinct roles before, during and after the offense. Collectively these persons or groups are termed the parties to the crime. The common law classification of parties to a felony consisted of four categories: (1) principal in the first degree; (2) principal in the second degree; (3) accessory before the fact; and (4) accessory after the fact.

A much more modem approach to the entire subject of parties to crime is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. Such is the view taken in the Model Penal Code, which provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make proper effort to prevent it. A similar approach has been taken in many of the recent recodifications. Under this approach, "a person guilty by accountability is guilty of the substantive crime itself' and punishable accordingly.

. . . [C]onsistent with the modem approach,2 the word "accomplice" is used herein to describe all persons who are accountable for crimes committed by another,3 without regard to whether they were or were not actually or constructively present at the time the crimes were committed.

As we have seen, in the process of determining whether a person has committed a crime it is useful to give separate consideration to whether that person engaged in the requisite acts4 (or omissionss) and to whether he had the requisite mental state.6 This same approach is used herein in determining the limits of accomplice liability. It may generally be said that one is liable as an accomplice to the crime of another if he (a) gave assistance or encouragement or failed to perform a legal duty to prevent it (b) with the intent thereby to promote or facilitate commission of the crime.7 There is a split of authority as to whether some lesser mental state will suffice for accomplice liability, such as mere knowledge that one is aiding a crime or knowledge that one is aiding reckless or negligent conduct which may produce a criminal result.

(a) Acts or Omissions. Several terms have been employed by courts and legislatures in describing the kinds of acts which will suffice for accomplice liability. The most common are "aid," "abet," "advise," "assist," "cause," "command," "counsel," "encourage," "hire," "induce," and "procure."& Although there is very little difference between the meaning of several of these words, the following comments must be read with the caveat that the results in some cases may depend upon the precise combination of terms included within the applicable accessory statute.9

Such terms as "advise," "command," "counsel," "encourage," "induce," and "procure" suggest that one may become an accomplice without actually rendering physical aid to the endeavor.IO This is the case.ll One may become an accomplice by acting to induce another through threats or promises, 12 by words or gestures of encouragement, 13 or by providing others with

§ 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim. L. § 13.2 (2d ed.)

the plan for the crime.14 The encouragement may come long before the time the crime was committed,IS and may be communicated to the principal through an intermediary.I6 It is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid ifneeded,I7 although in such a case it is necessary that the principal actually be aware of the accomplice's intentions.I8 An undisclosed intention to render aid if needed will not suffice, for it cannot encourage the principal in his commission of the crime.I9 Quite clearly, mere presence at the scene of the crime is not enough,20 nor is mental approval of the actor's conduct.21 ...

Because this is so, courts have experienced considerable difficulty in cases where the defendant was present at the time of the crime and the circumstances of his presence suggest that he might be there pursuant to a prior agreement to give aid if needed. Depending upon the facts, the circumstantial evidence may be sufficient to permit the jury to find that such an agreement did exist ....

Somewhat easier, as a class, are those cases in which the liability of the accomplice is based upon the fact that he actually did "aid," "abet," or "assist" in the commission of the crime.3o The assistance may be rendered in a variety of ways. The accomplice may furnish guns,31 money,32 supplies33 or instrumentalities34 to be used in committing the crime, or he may act as a lookout35 or man the getaway car36 while the crime is committed. He might signal the approach of the victim,37 send the victim to the actor,38 prevent a warning from reaching the victim,39 prevent escape by the victim,40 or facilitate the crime by getting the victim41 or possible witness42 away from the scene. The aid may be supplied through an intermediary,43 and it is not necessary that the principal actor be aware of the assistance that was given.44

[I]t is generally true that liability will not flow merely from a failure to intervene.45 But, under the general principle that an omission in violation of a legal duty will suffice,46 one may become an accomplice by not preventing a crime which he has a duty to prevent.47 Thus, a conductor on a train might become an accomplice in the knowing transportation of liquor on his train for his failure to take steps to prevent the offense.48 Or, even in the absence of positive encouragement, the owner of a car who sat beside the driver might become an accomplice to the driver's crime of driving at a dangerous speed.49 Or, a parent might become an accomplice to a crime because of the parent's failure to intervene to prevent the crime from being committed on the parent's offspring.so

To what extent is it necessary that the aid or encouragement have played a part in the commission of the crime? For example, if A prevented the delivery to B of a warning that C was seeking to kill him and B is thereafter killed by C, must it be shown that the murder would not have been accomplished but for A's aid? No, said one court confronted with these facts:

The assistance given ... need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely renders it easier for the principal actor to accomplish the end intended by him and the aider and abetter, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had, he who furnished such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. As where one counsels murder he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counseLS!

What, then, of attempted aid? For instance, in the example given above, what if A had been unsuccessful in his efforts to stop the delivery of the warning to B but B was killed nonetheless? At least where the attempted aid is known to the actor, it may make no difference that the aid was unsuccessful or was not utilized, as it may qualify as an encouragement. On this basis it is correct to conclude that an accessory who provides instrumentalities to a burglar for use in a particular burglary should not escape liability as an accomplice merely because the burglar found and used other instrumentalities at the crime scene.52 On the other hand, where preconcert is lacking and there was only an attempt to aid, it might be argued that this is analogous to the uncommunicated intent to give aid if needed, so that there would be no liability. The Model Penal Code, however, covers all attempts to aid53 on the ground that "attempted complicity ought to be criminal, and to distinguish it from effective

§ 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim. L. § 13.2 (2d ed.) complicity appears unnecessary where the crime has been committed."54 Several modem codes have adopted this innovation.ss

Finally, it must be stressed that to be an accomplice to another's crime, the requisite act or omission must occur "either before the fact or during the fact," 55.! as otherwise the purported accomplice is only an accessory after the fact.55.2 ...

(b) Mental State Generally. Considerable confusion exists as to what the accomplice's mental state must be in order to hold him accountable for an offense committed by another. In part, this may be attributable to some uncertainty as to whether the law should be concerned with the mental state relating to his own acts of assistance or encouragement,56 to his awareness of the principal's mental state, to the fault requirements for the substantive offense involved, or some combination of the above. This uncertainty is reflected in the considerable variation in the language used by courts and legislatures on this point. . ..

Generally, it may be said that accomplice liability exists when the accomplice intentionally encourages or assists, in the sense that his purpose is to encourage or assist another in the commission of a crime as to which the accomplice has the requisite mental state.64 Beyond this, the situation is much less certain. There is some authority to the effect that one may become an accomplice by giving encouragement or assistance with knowledge that it will promote or facilitate a crime, although liability has seldom been imposed on this basis. Also, there is considerable diversity in the cases on the subject of whether accomplice liability may rest upon knowing aid to reckless or negligent conduct if that conduct produces a criminal result. It does seem clear, however, that liability without fault does not obtain in this area.

(c) Intentional Assistance or Encouragement. Under the usual requirement that the accomplice must intentionally assist or encourage, it is not sufficient that he intentionally engaged in acts which, as it turned out, did give assistance or encouragement to the principal.65 Rather, the accomplice must intend that his acts have the effect of assisting or encouraging another. For example, assume that A shoots and kills B while C was standing by shouting and gesturing. Is it sufficient, for purposes of accomplice liability to the crime of murder, to show that A took C' s words and actions to be a manifestation of encouragement, if in fact C was attempting to dissuade A from killing B? Quite obviously not.66 Thus, even if knowledge of the actor's intent (as opposed to sharing that intent) is otherwise sufficient, the accomplice must have intended to give the aid or encouragement.67

In other instances, it may be clear that the alleged accomplice intended to give aid or encouragement to another, but he will still not be liable as an accomplice. For example, assume that A and B go to C's house, that A removes the screen so as to permit B to enter, that B enters through the window and comes back out with several items of C's personal property, which A then helps B carry away from the scene. Is A an accomplice with B in the crimes of burglary and larceny if B misled A into believing that Chad given B permission to borrow the property taken? Clearly not,68 for these facts show that A was unaware that he was aiding criminal conduct. (This is not to suggest, however, that an accomplice can escape liability by showing he did not intend to aid a crime in the sense that he was unaware that the criminal law covered the conduct of the person he aided. Such is not the case,69 for here as well the general principle that ignorance of the law is no excuse prevails.70)

(d) Knowing Assistance or Encouragement.84 In many cases the facts will make it clear that the accessory actually intended to promote the criminal venture, in the sense that he was personally interested in its success. Such is the case, for example, when one supplies guns for use in a bank robbery on the understanding that he will receive part of proceeds of the illegal venture,ss or when one induces a public official to take unlawful fees so that he may also be paid for the benefit to be granted in exchange.86 The accomplice's interest, of course, need not be fmancial;87 there may be many reasons why he shares in the hope for success.88

But there are many other instances in which the alleged accomplice's actions will qualify only as knowing assistance, in that he is lending assistance or encouragement to a criminal scheme toward which he is indifferent. A lessor rents with knowledge that the premises will be used to establish a bordello. A vendor sells with knowledge that the subject of the sale will be used in commission of a crime. A doctor counsels against an abortion during the third trimester but, at the patient's insistence, refers her to a competent abortionist. A utility provides telephone or telegraph service, knowing it is used for bookmaking. An employee puts through

§ 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim. L. § 13.2 (2d ed.)

a shipment in the course of his employment though he knows the shipment is illegal. A farm boy clears the ground for setting up a still, knowing that the venture is illicit.89 Should such knowing assistance or encouragement suffice as a basis for accomplice liability?90 The earlier decisions generally held that aid with knowledge was enough,9I and it has been forcefully argued that such a view is consistent with the preventive objectives of the criminal law. As stated in Backun v. United States:92 The seller may not ignore the purpose for which the purchase is made if he is advised of that purpose, or wash his hands of the aid that he has given the perpetrator of a felony by the plea that he has merely made a sale of merchandise. One who sells a gun to another knowing that he is buying it to commit a murder, would hardly escape conviction as an accessory to the murder by showing that he received full price for the gun. Under this approach, even "wilful blindness"93 would suffice as a mental state for accomplice liability.94 The leading case to the contrary is United States v. Peoni,95 where the court took the position that the traditional definitions of accomplice liability96 "have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed. All the words used-even the most colorless, 'abet'-carry an implication of purposive attitude towards it." Other courts have tended to accept the Peoni limitation on accomplice liability,97 although dictum to the contrary still persists.98

Various compromises between the views expressed in Backun and Peoni have been suggested. One is that knowing aid should be deemed sufficient when the criminal scheme is serious in nature.99 Some of the decided cases may be reconciled on this basis; this would explain, for example, why liability has been imposed for knowing aid to a group planning the overthrow of the government!OO or to one planning to burglarize a bank,! OJ but not for knowing aid to such crimes as gambling,I02 prostitution,I03 and unlawful sale of liquor.I04 Taking into account the seriousness of the crime aided makes some sense, for it may be argued that in such a case the "inconvenience to legitimate trade of requiring a merchant to concern himself with the affairs of his customers" IOSis a lesser consideration than the prevention of major crimes.

A somewhat different solution is to deal with knowing assistance or encouragement as a distinct criminal offense rather than as a basis for accomplice liability for the crime aided. This would have the advantage of providing means whereby such persons, clearly less culpable than those directly participating in the crime, could be subjected to lesser and different penalties, just has long been the case for the accessory after the fact. This is the solution adopted in a few of the modem codes by adding "criminal facilitation" to the usual list of anticipatory crimes. III

(e) Assistance or Encouragement to Reckless or Negligent Conduct. Assume that A, the owner of a car, permits B, who A knows is intoxicated, to operate his car on the public highways, and that as a consequence B is involved in an accident which causes the death of C. Under principles of accomplice liability, may A be viewed as an accomplice to B's criminal-negligence involuntary manslaughter?II2 In considering this question, it is useful to take account once again of the teaching of United States v. Peoniii3 that the traditional defmitions of accomplice liabilityii4 "have nothing whatever to do with the probability that the forbidden result would follow upon the accessory's conduct; and that they all demand that he in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed."

As we have seen, the Peoni rule is today generally accepted to mean that one does not become an accomplice by an intentional act of assistance or encouragement merely because he knows that such act will facilitate a crime. If this is so, then does it not follow that one also does not become an accomplice by an intentional act of assistance or encouragement merely because he knows that such act might facilitate a crime? That is, in the example given above, how can A be an accomplice as to C' s death when A did not give the aid or encouragement with an intent that such a result ensue?

The cases in this area are generally in a state of confusioniiS .... However, it has been held with some frequency that accomplice liability exists under the circumstances stated. The most common case has been like the example given above in that a car owner has permitted a person known to be intoxicated to operate his vehicle,II8 but the same result has been reached on quite different facts.II9 Although the rationale of these decisions is seldom made explicit, the assumption apparently is that giving assistance or encouragement to one it is known will thereby engage in conduct dangerous to life

§ 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim. L. § 13.2 (2d ed.)

should suffice for accomplice liability as to crimes defined in terms of recklessness or negligence. This conclusion, permitted under some accomplice liability statutes,I20 it might be argued, is not inconsistent with the Peoni rule holding knowing facilitation insufficient, for Peoni has been applied so as to avoid holding one as an accomplice upon a lesser mental state than would be required for conviction of the principal in the first degree.

This theory of accomplice liability has been rejected by some courts,121 and it would seem inapplicable under many of the modem accomplice statutes requiring an actual intent to assist the commission of a crime,l22 although the courts in some of these states have in effect decided to judicially amend their statutes to add on what their legislatures decided to leave out.I22.1 But even if this has not occurred, this is not to say, however, to return to the example of A permitting intoxicated B to drive his car, that A will necessarily escape liability. A could well be found guilty of criminal-negligence involuntary manslaughter without being declared an accomplice of B.

To understand how this might be so, it is important to reconsider why and when accomplice liability is needed. It is required to establish liability as to one who did not himself engage in the conduct required for commission of the crime ... [However,] if A gives his car to intoxicated Band Bruns down and kills C, it is not necessary to find that A is an accomplice to B's crime; if A's own conduct in turning over the car to one known to be intoxicated is itself criminally negligent and if that conduct is found to be the legal cause of the death, then A is guilty of manslaughter on that basis.I25 Indeed, this approach is to be much preferred over the accomplice liability theory, for the latter is not limited by the legal cause requirementi26 and thus could easily be extended to all forms of assistance or encouragement to negligent or reckless conduct.I27

(t) Liability Without Fault. Under the general principles applicable to accomplice liability, there is no such thing as liability without fault. Thus, it is not enough that the alleged accomplice's acts in fact assisted or encouraged the person who committed the crime.I28 One does not become an accomplice to a murder merely because the murderer misinterpreted his words and gestures as encouragement.I29 ·

The above comments, it must be emphasized, refer only to accomplice liability as it exists under common law and statutes, where mental fault is an absolute requirement.I35 One who is not truly an accomplice may nonetheless be held responsible for the conduct of another by virtue of special statutory provisions,I36 and such legislation may indeed impose that variety of liability without fault which is referred to as vicarious liability.I37

Footnotes aO David C. Baum Professor Of Law Emeritus And Professor Emeritus In The Center For Advanced Study, The University Of Illinois.

The person who uses an innocent or irresponsible agent is considered to be a principal in the first degree, and thus that situation is not considered herein. See§ 13.1(a). Likewise, the accessory after the fact is not considered herein, as under the modem view he is not truly an accomplice in the crime. See§ 13.6(a).

2 The term "accomplice" is used in Model Penal Code § 2.06. It "is employed as the broadest and least technical [term] available to denote criminal complicity. Unlike 'accessory' it has no special meanings under either common law or modem legislation." Model Penal Code§ 2.06, Comment at 306 (1985).

3 Except for those special cases in which vicarious liability without fault is imposed. See § 13.4.

4 See§ 6.1.

5 See§ 6.2.

6 See§§ 5.1 to 5.4.

7 Assuming the requisite mental state, a single act of assistance or encouragement can be a basis for accomplice liability with respect to more than one crime and, for that matter, with respect to more than one principal. See, e.g., Watts v. Bonneville, 879 F.2d 685