Criminal
Law Class Notes
This
is the final step in the semester. We’ve
been talking about single people committing crimes to this point. Now we look at the extraordinarily common
problem that most crimes involve more than one person. Who else besides the “trigger man” is also
guilty of that offense?
You
must think about this issue and entirely different from Torts. In Torts, you talk about vicarious liability. The employer isn’t really negligent; it’s
just that they hired a certain person who was negligent. What’s good for Torts is good for Torts, but
this is Criminal Law. It’s much
different from Torts. We’re looking for personal
responsibility.
It’s
obvious if you “pull the trigger” that you’re responsible. But who else should be held responsible for
something they did not do? That’s the
question of this chapter.
There
are two kinds of complicity:
1. Accomplice liability
2. Conspiratorial
liability
Accomplice
liability and conspiratorial liability overlap 99%. Most of the time, if you could be held liable
under accomplice liability, then you could also be held liable under
conspiratorial liability and vice versa.
But not always. There are a few
cases where someone is one but not the other.
The
first couple pages of today’s assignment contain material that you need to
digest. We’ll need it starting soon.
The
common law terms were make-or-break distinctions for prosecutors at common law. Virtually no state today follows the odd, technical
common law rules that existed way back when.
But even though that’s true and some of the distinctions between the
terms have disappeared, you will find that courts even today will talk about defendants
using those terms. To understand what
they’re talking about, you need to refer to the original common law
definitions.
For
a very long time, an accessory after the fact is no longer part of this
analysis. That sort of person who is
described as an accessory after the fact today is not deemed to be guilty of
the crime for which they were accessory after the fact. We’ll hold them guilty of “obstruction of
justice” or “misprision of a felony”.
Look
at the section and subsection headings so we know what’s we’re doing.
The
purpose of this case is to get the big picture of what it means to be an
accomplice to a crime. Then we’ll go
from in general to specific and start looking at the actus
Hoselton
and his friends went to a barge. He didn’t
know that his friends were going to steal stuff. He doesn’t really help them. So why is he charged? What’s the theory of the prosecutor? The prosecutor says that he’s a lookout.
The
prosecutor says that he was a principal in the first degree. That must be wrong. They have to claim, at best, that he’s a
principal in the second degree. The
reason they charged him as a principal in the first degree is because the
prosecutor can charge anyone with everything.
What
does it take to be an accomplice to a crime?
Note that there’s no such crime as “accomplice to breaking and entering”. If you’re an accomplice, you’ll be charged
with “breaking and entering”!
You’ll
be liable as an accomplice if:
1. The person
gave helped out in the crime.
2. The person had
the intent to promote or facilitate the commission of the crime.
So
the actus
The
mens rea is: intent to aid and intent that your assistance result in the
commission of the offense.
Whenever
you think about accomplice liability, think about actus
Then
go to the mens rea. Did the defendant
intend to do that act? Did the defendant
also intend that the act result in the commission of an offense?
The
defendant in this case could only meet the actus
But
the prosecution in this case has no evidence!
Common
law versus the Model Penal Code
You
can be found guilty if you did it, or if you’re legally accountable for
the person who did do it. But when are
you legally accountable? There are three
circumstances, but we only need to worry about two of them. MPC § 2.06(2)(c) involves accomplice liability.
What
makes someone an accomplice? You need
the mens rea of purpose, and the actus
It’s
kind of like the common law so far.
We’ll
need § 2.06(4) later.
We
also need § 2.06(7).
What’s
the significance of “lookout by prearrangement”? Why would it matter? It could matter because you’ve given your
friends a psychological boost by promising to help them…that’s
encouragement. If the assistance isn’t
prearranged, they don’t get the benefit of the encouragement.
If
there’s no prearrangement, and thus no encouragement, and the attempt to
aid fails, then at common law, the defendant isn’t an accomplice. Under the Model Penal Code, the attempt makes
him guilty as an accomplice.
Mere
prearrangement can give you both the mens rea and the actus
The
agreement to aid is a mens rea of accomplice liability in the Model Penal Code.
When
is there a legal duty to prevent something from happening? Where do we look at common law to get the
answer? No clue. Oh, you look back at omission
by commission. There are certain
categories where you have to act, but you don’t usually have a legal duty to
keep harm from occurring.
These
are the basics.
This
deals with the mens rea part of accomplice liability. Do you have to have purpose or knowledge?
This
case teaches us two important things!
1. Sometimes you
can infer purpose from knowledge. There
are several ways you can do that. “It’s
not just that they knew, but they actually wanted it to happen.” For example, they might have a stake in the
venture. If the Sacramento Bee charges
prostitutes more to advertise than others, then you can infer that the Bee
wants them to succeed in prostitution.
2. This is dicta:
but the possibility is suggested that for really serious crimes, maybe
we should be able to punish people simply on the basis of knowledge and
not purpose.
The
common law is deeply divided. Many jurisdictions
say only purpose will do. Some jurisdictions
are willing to punish on the basis of mere knowledge, at least for serious
crimes. The Model Penal Code requires
purpose.
Sometimes
you can infer purpose from knowledge, but you need something extra in order to
draw the inference.
This
is a controversial issue. Some would
say, “How dare we prosecute the accomplice who is otherwise law-abiding and not
making any special profit?” Others would
say, “We want to require people and businesses to have some level of morality
and not participate in bad acts they’re aware of.”
In
reality, this doesn’t happen too often.
The more common situation is that the merchant believes he’s selling to a
gang member, for example. This suggests recklessness. But no one has argued that we should punish
for recklessly assisting in a crime.