Criminal Law Class Notes 11/21/03


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.


State v. Hoselton


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 reus and mens rea of being an accomplice.


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 reus is: you’ve acted, you’ve encouraged, or you’ve made an omission when you should have done something.


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 reus first: how did the defendant aid?


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 reus if we was a lookout.  Being a lookout sort of includes the intent to aid in the commission of a crime.


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 reus of solicitation, aiding, or failing to carry out a legal duty.


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 reus at common law.


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.


People v. Lauria


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.


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