Section 2.1


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown, Ph.D.


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Complicity

Often, more than one criminal plays a role in the commission of a crime.  When an actor is liable for someone else’s action or conduct, it is called complicity. When the participation and criminal conduct varies among the defendants, an issue arises as to who is responsible for which crime and to what degree.

Common Law Rules

Under the old common law rules, there were four distinct parties to crime:

  1. Principals in the first degree: These were persons who actually committed the crime.
  2. Principals in the second degree: These were persons present when the crime is committed, such as lookouts.
  3. Accessories before the fact: These were people who were not present when the crime was committed, but who helped before the crime was committed (e.g., providing weapons).
  4. Accessories after the fact: These were people who helped after the crime was committed, such as harboring a fugitive.

The most familiar participant was the “principal in the first degree,” most commonly thought of as the perpetrator. This actor both had the mental state for the crime and directly satisfied the act requirement, either personally or through another person who the principal exploited.  Most people would intuitively believe that this actor is the most deserving of punishment. The second common law classification is the “principal in the second degree.” That designation signifies some level of mitigation, as this actor need not be physically present for guilt to attach. Constructive presence is sufficient. additionally, the principal in the second degree does not commit the actus reus of the offense but is guilty because of the assistance provided in the commission of the offense. Often, the assistance may consist of being a lookout, getaway driver, and so forth. The potential forms of assistance are seemingly inexhaustible.

The next two types of actors vary from the principal in terms of their location or the timing of their assistance. The “accessory before the fact” by definition is not present, either constructively or actually, at the time of the commission of the crime. Rather, this actor has in some manner encouraged the principal in the first degree to commit the offense. Often this actor is thought of as somewhat less blameworthy because of the spatial-temporal separation from the offense.  It must be remembered that an accessory before the fact could be the mastermind for the crime. Thus, as a matter of law in most states, aiding the criminal enterprise in this capacity no longer diminishes the culpability of such actors.

Finally, in the “accessory after the fact” we have an actor who simply tried to shield the main actors from detection. Oddly, the old common law rules derivatively attach liability to this actor for the original crime, despite the actor’s involvement only after the crime has taken place.  Fortunately, nearly all jurisdictions now treat such conduct as a separate offense, one less serious than the original one crime.

Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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