Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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The modern statutes are a bit confusing because the old common law language is still used in many instances. The criminal actor is referred to as the principal, although all accomplices have an equal criminal responsibility under the current law in most jurisdictions (e.g., 18 U.S.C. § 2). Accomplice liability is often described using the term derivative; the accomplice does not actually have to commit the actus reus to be responsible for it. The legal logic of accomplice liability is based on the idea that an individual who willingly participates in furthering criminal conduct should be accountable for it to the same extent as the criminal actor.
Generally, a person can be held criminally liable under the Model Penal Code for the conduct of another person under three circumstances:
- A specific statute makes the first person liable for the actions of the second
- The person is an accomplice of another
- The person causes a person with a defense available to commit the crime
Most states have reduced the number of distinct categories. Arkansas has chosen to eliminate nearly all of these distinctions under a single “Accomplices” statute. The exception is the fourth element (accessories after the fact), which has been classified along the lines of a crime against the administration of justice. This category of persons can be described as criminal protectors.
Under Arkansas law, a person is considered an accomplice if, with the purpose of promoting or facilitating a crime, he or she does any of the following:
- Solicits, advises, encourages, or coerces the other person to commit the crime
- Aids, agrees to aid, or attempts to aid the other person in planning or committing the crime
- Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so
For crimes that require a specific result, the above three acts apply to promoting or facilitating the result.
The Model Penal Code permits the infliction of attempt liability for behaviors at earlier stages in the succession of events leading up to the crime than was permitted under the common law doctrine. Model Penal Code § 5.01(1)(c) requires that the actor have completed “a substantial step in a course of conduct planned to culminate in his commission of the crime.” The section then explains that conduct is a “substantial step” if it is “strongly corroborative of the actor’s criminal purpose.”
Term of Art: Corroborative
In evidence law, corroborative evidence is evidence that supports a proposition already supported by earlier evidence, therefore confirming the original assertion. The language “strongly corroborative of the actor’s criminal purpose” can be taken to mean that the “substantial step” strongly supports the assertion that the actor indeed has a criminal purpose.
To understand the traditional doctrine of accomplice liability, it is perhaps best to consider that the defendant must possess two separate types of criminal intent. First, the accomplice must have a culpable mental state with respect to the substantive offense. In other words, accomplice liability borrows part of its mens rea from the underlying crime. Under federal law, however, the accomplice does not necessarily need to have the same intent as the principal if they have a “community of unlawful intent.” Let’s take the mental element of aiding and abetting murder for example. For accomplice liability to attach, the person accused of aiding the killer must share the killers intent to kill, or at least have some knowledge that the killer’s intent was to kill.
The second aspect of the accomplice criminal intent is his mental state toward the actions in aid of the crime. The aiding and abetting statute itself uses words that refer to this intent, and Judge Hand incorporated this reading of the statute into his formulation of the test. The statute governing accomplice liability requires a culpable mental state sufficient for the commission of the offense. That is, the accomplice must have the criminal intent that the crime be committed. A defendant who helps others to commit a crime is not an accomplice to the crime when he or she has no knowledge that the activities constitute a crime.
There is no difference in the liability of an accomplice and the person who actually commits the criminal act. When two or more persons help each other commit a crime, each is legally an accomplice and liable for the conduct of all. There is no statutory requirement that an accomplice be present at the scene of the crime. Mere presence and knowledge that a crime is being committed is not enough to establish a person as an accomplice, regardless of whether the person informs law enforcement.
The Model Penal Code generally bases accountability on one’s personal association with a criminal venture. So long as someone has in some way participated in a crime with the intent to further the target crime, she is liable as if she had perpetrated the offense personally.
Working together to commit a crime may be shown by circumstantial evidence, without any direct proof of a prior agreement. A defendant can be found guilty of the offense not only by his or her own actions but also by that of accomplices. To prove liability as an accomplice, you only need to show that the defendant encouraged or aided in the commission of the crime.
Modification History File Created: 07/12/2018 Last Modified: 07/12/2018
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