Courts often refer to aiding and abetting as an alternate theory of liability rather than a separate crime. Under 18 U.S.C. § 2, aiding and abetting liability is available in all federal criminal prosecutions; however, the availability and extent of civil aiding and abetting liability varies from statute to statute. Where available, aiding and abetting liability generally requires three elements: 1) an underlying violation by a principal; 2) knowledge of that violation and/or the intent to facilitate the violation; and 3) assistance to the principal in the violation. As indicated by the Supreme Court, “In order to aid and abet another to commit a crime it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” Nye & Nissen v. United States, 336 U.S. 613, 618 (1949) quoting Judge Learned Hand in U.S. v. Peoni 100 F.2d 401, 402 (2d. Cir. 1938).
In 1982, the United States Supreme Court held that accomplices may not be executed for the capital crimes of other criminals, if there is no evidence that the accomplice knew or even suspected that the primary wrongdoer might commit murder. In Enmund v. Florida, 458 U.S. 782 (1982), the accomplice was sitting in a car outside a house where a robbery was committed, and had no inkling that his partner in crime was going to kill the robbery victim.
Some states, including the state of California, have a system that distinguishes between an accessory, an accomplice, and a principal (or co-principal) in a different way. In this system, the difference between an accessory and an accomplice is not as listed above. An accessory would ONLY be someone who aids and abets the principal (the person who committed the crime OR helped in the planning of the crime) to escape justice after the crime has been committed (there is no more accessory "before" and "after" the fact... what was once "accessory before the fact" is now just "co-principal", and what was once "accessory after the fact" is now just "accessory". An accomplice is NOT a formal legal term in many states... it is "legal slang", and denotes ONLY "an accessory or co-principal that agrees to testify against another principal in a court of law".
Accomplice Liability (unlike conspiracy, no agreement necessary) -- Actual assistance required and principle must know of Accomplice's actions. • Defendant must intend to commit or to assist another in committing (requires specific intent)
• In some situations (the mental state might be that the accessory might think that the principal will commit the crime) • in some states the required mental state is the knowledge the principal’s mental state
Model Penal Code: a person who attempts to aid a person is guilty of being an accessory, regardless of whether the act or the attempted act occurred (§5.01.3) • Detectives are not culpable if they have a different mens rea (e.g. not to permanently deprive one of goods)
Some courts take the position that any active assistance establishes a mens rea
Common law categories • Principles in first degree • Principles in second degree -- one who gives "constructive prence" • Accessories before the fact; An accessory before the fact is one who procure counsels or commands the commission of a felony but who, unlike a principal in the second degree, is not present, actually or constructively, at the commission of the criminal act. • Accessories after the fact is defined as • Knowledge (not just suspicion) that a felony had been committed, and completed, by the assisted person;
Accomplices are liable for the crime itself and all other foreseeable crimes • Even if the principle has an immunity the accomplice can still be tried • accomplice is imputed with the mens rea of the actor (intent to commit or encourage the crime) (former lover looking for girl) • Both parties must have the same intent (relative helped robber rob store to help police catch him) • One is not an accomplice if they do not actively aiding or abetting or counseling the crime • Don't give people accomplice liability just because they are present, but they seem to be consenting
Mens Rea as to Result (in recklessness cases) • An accessory before the fact can be liable for the final act (ship boiler blew up) -- even for negligence • Participation can be an accessory An accomplice must have the same culpable mental state and intentionally aid in the commission (accident killing others while drag racing) • Actus Reus -- Wilcox v. Jeffery—The nature of the illegal act is immaterial (the jazz musician) • Sometimes just encouraging can be enough
Defenses to Accomplices liability • Withdrawal • Where an accessory has only counseled, commanded, or encouraged the crime, he may withdraw by communicating his changed intention to the other parties • If he has already given tangible aid, he must withdraw the aid or try to prevent its use (e.g., by warning the police). • Note that it is not necessary that the crime actually be prevented by his actions; if he withdraws properly, he will not be liable even if the crime takes place.
• Note, however, that the withdrawal must reflect a renunciation of the criminal purpose, not a mere determination that the odds of success are slim, or that one is afraid of getting caught. Also, such withdrawal must take place before the chain of events has become "unstoppable."
Defenses -- ways of knocking out the mens reas • Infancy • Under seven -- no criminal liability • Under fourteen -- rebuttable presumption of criminal liability • Insanity -- four tests == Most states the prosecutor has the burden of persuasion • M'Naughton Rule (traditional): • Two prongs • Defendant is not guilty by reason of insanity if he lacked the ability to know (and the time of his conduct) the wrongfulness of his action • to understand the nature and quality of his action -- requires a disease of the mind • I.e. one thinks that they are squeezing lemons • Accused’s sanity may be tested by his knowledge that his acts were legally wrong.
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