Criminal Law Outline - Accomplice

  1. Accomplice Liability Generally
    1. Different than conspiracy because…
      1. Accomplice = agree that you will help commit
      2. Conspiracy = agree that someone will commit
    1. Common Law
      1. Actors
        1. Principal in the first degree - actually commits the crime
        2. Principal in the second degree - one who is guilty of felony by aiding or encouraging the commission in the presence of the commission
        3. Accessory before the fact - guilty of felony by having counseled or encouraged before the fact.
          1. Most states have abolished this distinction; this group can be tried without regard to the principal's prosecution.
        1. Accessory after the fact - renders assistance to a felon to hinder his detection, arrest, trial, or punishment.
          1. Most states don't treat this group as parties to the crime of the principal. They are subject to a separate and lesser offense such as "hindering apprehension or prosecution"
  1. Elements of Accomplice Liability
    1. Mens Rea Requirement
      1. Dual-Intent Inquiry:
        1. Purpose to promote or facilitate the commission of the offense (just the conduct!)
        2. Intent to aid, agree, or agree to aid the primary party (Knowledge(?)might be sufficient)
      1. Knowing vs. Intentional Assistance
        1. Argument for Intent Requirement
          1. Accomplice liability mostly deals with the fact that a party intends a forbidden result through his conduct. Abet carries with it the implication of intent.
          2. Liability in agency law rests on the notion of agreed purpose. Intent is necessary because D needs to intend to further the acts of the principal.
          3. Using intent as the measure is the only way we are justified in punishing the accomplice as if they were the perpetrator.
          4. Making the circle of criminality wider by holding Ds with knowledge liable might be bad for business.
        1. Argument for Knowledge Requirement
          1. If the harm that is sought to be avoided is exceedingly high, it makes sense to lower the mens rea requirement.
          2. D doesn't need to have a stake in the outcome as long as he assists their actions as if D had a stake in it.
      1. Intent Not Always Required…
        1. Result Element Crimes
          1. Inquiry becomes…
            1. Intends to promote or facilitate the conduct.
            2. Intends to aid, agree, or agree to aid the primary party (Knowledge might be sufficient).
            3. Acts with the kind of culpability, if any, with respect to the result that is sufficient for the commission of the offense.
          1. Ex. Riley v. State
            1. D and friend fire into crowd. Wound people, can't tell which gun caused the injuries. Charged with 1st degree assault (R crime).
            2. Held that D intended to promote the conduct, intended to aid, and acted with the kind of culpability required with respect to the result element.
          1. Ex. Taxi driver is told to drive as fast as necessary to get to airport on time.
            1. Hits Carl unintentionally while speeding, Carl dies.
              1. Crime would be manslaughter (reckless).
              2. Under MPC, passenger needs to intend to promote the other person's conduct, and be R as to result (death of Carl).
              3. Passenger intended driver to speed and was reckless as to the death, probably liable.
            1. Runs through a red light, hits Carl, Carl dies.
              1. D would argue that she intended driver to speed, not run red lights. Thus, did not intend to promote the conduct that resulted in death.
              2. P would argue that D intended for driver to break traffic laws to get to airport faster. So, D did intend to promote the conduct and was reckless towards the result.
            1. Becomes a question of how you define the relevant risk.
          1. Ex. Boyfriend of rape victim finds rapist. Tells friend to guard him and gives friend a knife. Rapist tries to run, friend holds out knife, stabs, kills rapist. Accomplice to negligent homicide?
            1. Boyfriend had to intend to promote that the friend have the knife and be negligent as to the result. Probably yes. Might also be good on reckless crime.
        1. Natural and Probable Consequences Doctrine (not MPC, only some jurisdictions)
          1. Four-step inquiry to see if accomplice should be liable for an additional, uncontemplated crime…
            1. Did the primary party commit the target offense (or at least an inchoate version of the target offense)?
            2. If so, was the secondary party an accomplice in the commission of the target offense?
            3. Is so, did the primary party commit other another crime(s) beyond the target offense?
            4. If so, were the latter crime(s), although not necessarily contemplated at the outset, reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor?
          1. Some states and MPC reject because it allows an accomplice to be liable for a specific intent crime when the accomplice lacks this required intent.
      1. Intent to Facilitate Apply to Attendant Circumstances?
        1. Little case law on point, MPC leaves it to the discretion of the court.
        2. Ex. If intent does apply to attendant circumstances, D who encourages friend to have sex with girl who D does not know is underage cannot be guilty of statutory rape through accomplice liability. since D must have intent as to the attendant circumstances (age).


  1. Actus Reus Requirement
    1. Act can be solicitation, encouragement, or active assistance (or attempted assistance).
      1. Solicits a person to commit
      2. Aids or agrees or attempts to aid such other person in planning or committing
    1. Ex. State v. Vaillancourt
      1. Principal and D walked around side of house and tried to break into basement window. D stood and watched, talked intermittently. Indictment only alleged accomplice based upon activity of accompanying to location and watching.
      2. Held that knowledge and mere presence at the scene of the crime cannot support a conviction for accomplice liability since they are not adequate affirmative acts for the actus reus requirement. (If indictment had alleged encouragement, would have been valid)
    1. Act can be failure to prevent the commission if a legal duty to do so exists.
    2. Presence as Acceptable Actus Reus
      1. Can be sufficient if it encourages the principal.
      2. Can be sufficient even if D does nothing but would have done something if the need arose (emboldening principle).
      3. An undisclosed intention to render aid to the principal does not suffice (need some sort of act demonstrating). Mere presence + flight has also been held to be insufficient.
      4. Ex. Francis, riding with wife and kids and friend George, pick up hitchhiker with wife's permission.
        1. George pulls knife and robs hitchhiker. Francis says and does nothing. Liable as accomplice to robbery?
        2. Probably not since he did not have the requisite intent (unless there was a previous agreement). Duty to do something? Possibly.
    1. Some states say that a conviction may not be had upon the testimony of an accomplice unless his testimony is corroborated by such other evidence as tends to connect D with the commission of the offense.
      1. Corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
      2. Ex. State v. Helmenstein
        1. Youths drove around and agreed to rob a store. Testimony of store owner only established that a robbery had occurred.
        2. Held that conviction for robbery could not stand since all testimony was from accomplices and there was no corroborating evidence.
    1. Causation between aid and result
      1. Most courts hold that no causation is required between aid and result.
        1. It is sufficient if the accomplice's acts facilitated a result that would have transpired without it. It is enough if the aid merely rendered easier.
        2. But-for causation not needed.
      1. Causation assures that guilt and punishment are based on personal involvement and the stigma of criminal conviction are apportioned in relation to the degree each person has disturbed society's equilibrium. Is accomplice law unjustified in ignoring causation?
    1. Act of attempting to aid
      1. In MPC, attempting to aid is a valid actus reus for accomplice liability.
      2. At common law, attempt to aid is not sufficient. Accomplice only if intentionally aids, no matter how minimally, the principal; however, actor must in fact assist.


  1. Inchoate Crimes in General
    1. The elements of conspiracy and attempt sometimes involve taking into account what makes the crime a federal crime (like the stealing money from the federal government).
      1. Don't want to turn every assault or robbery into a federal crime on the theory that it COULD have been a federal officer, COULD have had federal money on him, etc.
    1. Chart





Accomplice (A&A)


NO, but conceptually YES, because you can attempt an inchoate offense (such as possession)

YES, covered by solicitation.

A asks B; B refuses.

(1) YES, ACCOMPLICE if principle commits crime per 2.06(3)(a)(ii).

(2) YES, ATTEMPT if principle does not commit crime per MPC 5.01(3).


Yes, but it would just be a conspiracy

NO, but see RICO conspiracy

YES, but it just means you are an ACCOMPLICE

Accomplice (A&A)

Yes, under 5.01(3)

YES, but D must help agreement, not crime.







Attendant circumstances


Attempt § 5.01

(1)(a). Purposefully engages in conduct (EE) – mistake scenario

(1)(b). Purposefully causes result or believes result will ensue (EE) – result

(1)(c). Purposely do or omit to do anything that counts as substantial step - incomplete attempt

(1) Same culpability as target crime


(UCL: Must perform these acts with the specific intention of committing the target crime)


  1. Same culpability toward attendant circumstances as target offense
  1. “Strongly corroborates criminal purpose”

Conspiracy § 5.03


(1)(a), (b) Agree to aid (requires intent to agree)

Agreement is both act and MR



(1) Purpose to promote result / offense

(can’t conspire to commit murder w/out purpose to commit murder)

  1. Circ elements require only kind of culpability otherwise required for complete crime
  1. Overt act required for any crime other than a felony of the first or second degree, unless an overt act is done by someone with whom he conspired

Accomplice § 2.06

(3)(a)(ii) Agree to aid Purposefully aid (or at least Knowingly aid)



(3)(a) Purpose to promote offense

Exception to purpose:

(4) MR for result (accomplice in conduct causing result is accomplice in result w/ ok MR)


  1. Some courts require purpose wrt circumstances
  2. Some courts require same MR required by substantive crime (E&E, 379) – 11/22
  1. Any effort at aiding (even ineffective or unknown) § 2.06(3)(a)(ii) “aids or attempts to aid”
  2. Enough to prove purpose to aid? (EE 385) 11/22