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 r·Je:.:t © 2012 Thomson Reuters. No claim to original U.S. Government Works. For Educational Use Only § 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 ~Je:·;t © 2012 Thomson Reuters. No claim to original U.S. Government Works. 2 For Educational Use Only § 13.2. Accomplice liability-Acts and mental state, 2 Subst. Crim.