Criminal Law Class Notes 12/2/03


Four cases to cover today!




Dressler goes into the bank and he’s waiting for the teller.  I’m robbing the bank!  He’s so surprised that I’m robbing the bank that he says: “Geez, I wonder if Shecket realizes there’s a camera in here!” or “I wonder if he notices the guard over there?”  In response, I finish the robbery faster than I would have.  But for Dressler’s having said it, I would have been caught.  I’m guilty of robbery, but is Dressler guilty as an accomplice?  He was at the scene and he assisted me: he was present and he assisted me, but he has no mens rea and thus gets off the hook.


What if, on the other hand, Dressler wants me to get away with it and decides to help me, and in his mind he really means it, but doesn’t act in any way?  If he is present and has the mens rea but doesn’t assist, he gets off the hook again.


State v. Vaillancourt


What’s the argument by the prosecutor for indicting the defendant?  What exists in the case that justifies treating him as an accomplice?


What’s different between the facts here and the hypotheticals?  Vaillancourt was talking to the primary offender.  Also, the defendant came to the house with the primary defendant.  That suggests that they didn’t just happen to be there at the same time, but actually came there together.  That makes a somewhat stronger argument that they are more than just physically proximate to each other.


The crucial word in the indictment was “accompaniment”.  The majority and minority both read a great deal into that word.  What does it mean to accompany someone?


Mere physical presence at the scene of the crime cannot, by that mere fact alone, make someone an accomplice.  You have to assist, and you have to have a mens rea.  However, presence can frequently get us closer to the point where we can say that someone has assisted.


So what’s the extra something you have to have in order to be an accomplice?


Wilcox v. Jeffery


Check out the problem on this case.  Regarding the rapes…what is the liability, if any, of the cheering customers, non-cheering customers, and the bartender?


Let’s talk about the bartender first.  Can we get him as an accomplice in the rapes?  For our current purposes, we’re focusing on actus reus only.  Does the bartender have a legal duty to act to prevent the rape?  This person may be the only employee there.  The bartender would seem to be responsible to protect his customers.  Remember from torts the distinction between invitees and licensees?  Well, it seems here that since this is a business and the victim was a customer, he owes a legal duty to her.


But the law is hesitant to punish omitters, because, among other reasons, it is difficult to determine mens rea from a failure to act than an act.  It’s a lot easier to infer a mens rea when you fire a gun than when you fail to do something.  What if the bartender froze up and couldn’t act?  There are many ways to interpret non-action. 


What about the non-cheering customers?  Can we get them for the rape?  Do they have a duty to prevent the crime?  Based on what we’ve learned, no.  If they have a duty to stop a crime, all of us have a duty to stop any crime that occurs in our presence.  That may be a moral duty, but it’s not a legal duty under the criminal law.  Think of Jeffrey Strohmeyer.  He didn’t have a legal duty to stop his friend from raping a girl.


What about the cheering customers?  Could you get them for encouragement?  What if the rapists were deaf?  Would that make a difference?  Does this make any sense?


How do we explain Wilcox?  How can Wilcox be deemed an accomplice while none of the other thousands of people at the auditorium are found to be accomplices?  If Wilcox had booed, apparently he would have been off the hook.


There’s another problem here.  Let’s assume that Wilcox is the only person who encouraged Hawkins and specifically encouraged him to break the law.  But hadn’t the crime already happened?  The crime started when Hawkins entered the country without the appropriate documentation.  Wilcox didn’t assist in getting him into the country illegally.  But by the time of the concert, it would seem that the crime has already occurred.  Dressler assumes that this isn’t being discussed because this crime is viewed as a continuing crime.  That is, every second Hawkins is in the country illegally, a crime continues and therefore anyone who helps at any time is an accomplice.


If we had deaf rapists, wouldn’t that make the cheering customers equal to the non-cheering customers when it comes to the actus reus?  Sure.


Let’s say we’re all at the OSU-Wisconsin game and we all cheer Robert Reynolds as he chokes Jim Sorgi in such a manner that it’s clearly beyond the scope of the game and actually constitutes a crime.  Are the fans who are cheering accomplices?  Criminal law is all about individual liability.  Would it be appropriate for an attorney representing one of the cheering fans to say to a prosecutor: “You need to prove beyond a reasonable doubt that Robert Reynolds heard my client’s cheering in particular”?  Would that be a legitimate argument?


The policy argument is that if the prosecutor is forced to use that standard of proof, they won’t be able to nap anybody.  We shouldn’t let people off just because they’re in a big mob that all does the same thing at the same time.


If I can’t prosecute because I can’t separate out the 85,000 people, it may be that the correct answer ought to be “tough” because that’s what the burden of proof and presumption of innocence is all about.  But what is the message we learn from Wilcox and Helmenstein about how much assistance is needed to be an accomplice?  Very little indeed.


The defense is not able to argue successfully that “this crime would still have occurred even if my client hadn’t applauded”.  The law does not require a “but-for” causal connection between the assistance and the crime.  It’s enough that you’ve assisted, even in some extremely trivial way.  But, you must, in fact, have assisted.  If I don’t actually assist, I’m not an accomplice.


State v. Helmenstein


How do you make someone an accomplice in this case?  This case raises a limited and obscure issue: the statute in North Dakota cannot be had on the testimony of an accomplice unless that testimony is corroborated by a non-accomplice.  The accomplice has an ulterior reason to testify against his fellow accomplices.  In multi-party crimes, the prosecution will go after the little guy and try to get them to cheese them out.  Then the accomplice has the incentive to say, “Just tell me what to say, and I’ll say it.”  Accomplices have their own reasons to lie or make it look like the other guy did more than him.  Many jurisdictions say there must be something to confirm the testimony of an accomplice.


There’s a whole bunch of people who might or might not be accomplices.


What did Janice Zahn do that makes her an accomplice?  She agreed to the burglary.  She’s an accomplice and also a co-conspirator.  There is both accomplice liability and conspiracy liability.  Both would get a person within this special rule.


Kenneth Cahoon admitted that he actually took part in the burglary.  He was a co-perpetrator.


Carol Weiss asked for bananas.  The court says that this makes her an accomplice.  They infer that she was encouraging the burglary.  It is obvious that asking for the bananas didn’t cause the burglary.


It doesn’t take much to be an accomplice!


What about Glen Zahn?  How does the court make him an accomplice?  It’s very, very thin.


Prosecutors love accomplice liability.


People v. Genoa


What was Genoa prosecuted for, and why did the court throw out the conviction?  A Michigan police officer tried to get Genoa involved in a purported scheme to buy cocaine.  The cop says: “Give me $10,000, I’ll buy and sell the cocaine and give you a profit.”  Genoa got the money and gave it to the cop.  He gets arrested and charged with “attempted possession with intent to deliver cocaine”.  But Genoa never wanted to possess cocaine.  What’s up?  The prosecutor’s theory is that Genoa was an accomplice to the crime of possession with intent to deliver, or more properly, he was an accomplice to the crime of attempted possession with intent to deliver.


Let’s avoid the impossibility doctrine!  Why does Genoa get off the hook?  The crime never really took place, and at common law you need to derive your liability from some underlying crime; that’s what accomplice liability is all about.  Since the cop committed no crime, there is no crime to be an accomplice to.  If the social harm of the crime or of the attempt hasn’t happened, there’s nothing to get the accomplice for.  There must be something over there we can connect our accomplice to.


What would be the result in Genoa under the Model Penal Code?  I think Genoa would be guilty.  § 5.01(3) shows this clearly:


(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.


Has the Model Penal Code rejected the derivative liability concept?  How can Genoa be guilty of a crime that was never occurred or attempted?  How can we explain the result without getting rid of derivative liability?  In common law terminology, Genoa is an accessory before the fact, which would suggest we’re getting rid of derivative liability.


But maybe Genoa is the principle in the first degree.  What is Genoa attempting to do?  He’s guilty of the crime of attempting to aid in the possession with intent to deliver cocaine.  The Model Penal Code says that Genoa would be guilty as the perpetrator.  Usually when we think of attempt we’re talking about the perpetrator.  But why not make it a crime to attempt to be an accomplice?  From the Model Penal Code’s subjectivist point of view, Genoa is just as culpable and dangerous as someone who succeeded.  From the objectivist way of looking at it, there is no social harm and Genoa should be let off.


The Model Penal Code says: Genoa tried to be an accomplice.  So under the Model Penal Code, we ask: would this person have been an accomplice under § 2.06 had a crime been committed?  If the answer is yes, then you can be guilty not as an accomplice but as the perpetrator of the attempt.  Genoa becomes the principal in the first degree of the attempt.


Can we do § 5.01(3) with solicitation and not just aid?  In § 2.06, solicitation is in a different subcategory from aiding.  § 5.01(3) seems to deal only with aid and not solicitation.  Is this a glitch?  Is this inconsistent?  Well, you could still be guilty of solicitation to commit a crime, which is usually as serious as the completed crime anyway.  So, no problem really.  Doesn’t really matter.


Back to Class Notes