Discuss the legal and practical differences between a justification and an excuse. 2) What is needed for an insanity plea to be approved by the courts? Give an example of a case that wa

Source: Image courtesy of Jane F. Kardashian, MD.

complicity

Working together with a common criminal purpose and design.

C H A P T E R 7 Parties to Crime Congress can impute to a corporation the commission of certain criminal offenses and

subject it to criminal prosecution therefor.

– New York Central R. Co. v. U.S., cited in Section 2

1. PARTIES TO CRIME

L E A R N I N G O B J E C T I V E S

1. Identify the four parties to crime at early common law. 2. Identify the parties to crime in modern times. 3. Define the criminal act element required for accomplice liability. 4. Define the criminal intent element required for accomplice liability. 5. Define the natural and probable consequences doctrine. 6. Discuss the consequences of accomplice liability. 7. Determine whether an accomplice can be prosecuted when the principal is not prosecuted or

acquitted.

Often more than one criminal defendant plays a role in the commission of a crime. Defendants work- ing together with a common criminal purpose or design are acting with complicity. When the parti- cipation and criminal conduct varies among the defendants, an issue arises as to who is responsible for which crime and to what degree. This chapter analyzes different parties to crime, along with their ac- companying criminal liability. Chapter 8 examines crimes that necessarily involve more than one per- son such as conspiracy and solicitation, as well as another inchoate or incomplete crime, attempt.

principal in the first degree

At early common law, a defendant who committed a crime with the help of other defendants.

principal in the second degree

At early common law, a defendant who was present at the crime scene and helped a principal in the first degree commit a crime.

accessory before the fact

At early common law, a defendant who was not present at the crime scene and helped a principal in the first degree prepare to commit a crime.

accessory after the fact

At early common law, a defendant who helped a principal escape or avoid arrest, prosecution for, or conviction of a crime.

principal

A defendant who commits a crime with the complicity of other defendants.

accomplice

A defendant who helps a principal commit a crime.

1.1 Accomplice Liability At early common law, parties to crime were divided into four categories. A principal in the first de- gree actually committed the crime. A principal in the second degree was present at the scene of the crime and assisted in its commission. An accessory before the fact was not present at the scene of the crime, but helped prepare for its commission. An accessory after the fact helped a party to the crime after its commission by providing comfort, aid, and assistance in escaping or avoiding arrest and prosecution or conviction.

In modern times, most states and the federal government divide parties to crime into two categor- ies: principals[1] and their accomplices, and accessories.[2] The criminal actor is referred to as the principal, although all accomplices have equal criminal responsibility as is discussed in Section 1.

1.2 Accomplice Elements An accomplice under most state and federal statutes is responsible for the same crime as the criminal actor or principal.[3] However, accomplice liability is derivative; the accomplice does not actually have to commit the crime to be responsible for it. The policy supporting accomplice liability is 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. The degree of participation is often difficult to quantify, so stat- utes and cases attempt to segregate blameworthy accomplices based on the criminal act and intent ele- ments, as is discussed in Section 1.

Accomplice Act

In the majority of states and federally, an accomplice must voluntarily act in some manner to assist in the commission of the offense. Some common descriptors of the criminal act element required for ac- complice liability are aid, abet, assist, counsel, command, induce, or procure.[4] Examples of actions that qualify as the accomplice criminal act are helping plan the crime, driving a getaway vehicle after the crime’s commission, and luring a victim to the scene of the crime. The Model Penal Code defines the accomplice criminal act element as “aids…or attempts to aid such other person in planning or committing [the offense]” (Model Penal Code § 2.06(3) (a) (ii)).

In many states, words are enough to constitute the criminal act element required for accomplice li- ability.[5] On the other hand, mere presence at the scene of the crime, even presence at the scene com- bined with flight, is not sufficient to convert a bystander into an accomplice.[6] However, if there is a legal duty to act, a defendant who is present at the scene of a crime without preventing its occurrence could be liable as an accomplice in many jurisdictions.[7] As the Model Penal Code provides, “[a] per- son is an accomplice of another person in the commission of an offense if…having a legal duty to pre- vent the commission of the offense, fails to make proper effect so to do” (Model Penal Code § 2.06(3)(a)(iii)).

Example of a Case Lacking Accomplice Act Review the criminal law issues example in Chapter 1, Section 2. In that example, Clara and Linda go on a shopping spree. Linda insists that they browse an expensive department store. After they enter the lingerie department, Linda surreptitiously places a bra into her purse. Clara watches, horrified, but does not say anything, even though a security guard is standing nearby. As Linda and Clara leave the store, an alarm is activated. Linda and Clara run away with the security guard in pursuit. In this case, Clara has probably not committed the criminal act element required for accomplice liability. Although Clara was present at the scene of the crime and did not alert the security guard, mere presence at the scene is not sufficient to constitute the accomplice criminal act. Clara fled the scene when the alarm went off, but presence at the scene of a crime combined with flight is still not enough to comprise the accomplice criminal act. Thus Clara has probably not committed theft as an accomplice, and only Linda is subject to a criminal prosecution for this offense.

Example of Accomplice Act Phoebe, the parent of a two-year-old named Eliza, watches silently as her live-in boyfriend Ricky beats Eliza. In Phoebe’s state, parents have a duty to come to the aid of their children if their safety is threatened. Ricky severely injures Eliza, and both Phoebe and Ricky are arrested and charged with bat- tery and child endangerment. Phoebe probably has committed the criminal act element required for accomplice liability in many jurisdictions. Phoebe does not personally act to physically harm her child. However, her presence at the scene combined with a legal duty to act could be enough to make her an accomplice. Thus Phoebe has most likely committed battery and child endangerment as an accomplice, and both she and Ricky are subject to a criminal prosecution for these offenses.

174 CRIMINAL LAW

natural and probable consequences doctrine

A doctrine that some jurisdictions follow holding an accomplice criminally responsible for all crimes the principal commits that are foreseeable when the accomplice assists the principal.

Accomplice Intent

The criminal intent element required for accomplice liability varies, depending on the jurisdiction. In many jurisdictions, the accomplice must act with specific intent or purposely when aiding or assisting the principal.[8] Specific intent or purposely means the accomplice desires the principal to commit the crime. The Model Penal Code follows this approach and requires the accomplice to act “with the pur- pose of promoting or facilitating the commission of the offense” (Model Penal Code § 2.06(3) (a)). In other jurisdictions, if the crime is serious and the accomplice acts with general intent or knowingly or has awareness that the principal will commit the crime with his or her assistance, intent to further the crime’s commission could be inferred.[9] In a minority of jurisdictions, only general intent or acting knowingly that the crime will be promoted or facilitated is required, regardless of the crime’s serious- ness.[10]

Example of Accomplice Intent Joullian, a hotel owner, rents a hotel room to Winnifred, a prostitute. In a state that requires an accom- plice to act with specific intent or purposely, Joullian must desire Winnifred to commit prostitution in the rented room to be Winnifred’s accomplice. Evidence that Joullian stands to benefit from Winni- fred’s prostitution, such as evidence that he will receive a portion of the prostitution proceeds, could help prove this intent. If Joullian’s state allows for an inference of specific intent or purposely with seri- ous crimes when an accomplice acts with general intent or knowingly, it is unlikely that prostitution is a felony that would give rise to the inference. If Joullian’s state requires only general intent or know- ingly for accomplice liability regardless of the crime’s seriousness, to be deemed an accomplice Joullian must simply be aware that renting Winnifred the room will promote or facilitate the act of prostitution.

The Natural and Probable Consequences Doctrine Accomplice liability should be imputed only to blameworthy, deserving defendants. However, in some jurisdictions, if the crime the defendant intentionally furthers is related to the crime the principal actu- ally commits, the defendant is deemed an accomplice. As with legal causation, discussed in Chapter 4, foreseeability is the standard. Under the natural and probable consequences doctrine, if the de- fendant assists the principal with the intent to further a specific crime’s commission, and the principal commits a different crime that is foreseeable at the time of the defendant’s assistance, the defendant could be liable as an accomplice.[11] Several jurisdictions have rejected this doctrine as an overly harsh extension of accomplice liability.[12]

Example of the Natural and Probable Consequences Doctrine José shows up drunk and unruly at his friend Abel’s house and tells Abel he wants to “beat the hell” out of his girlfriend Maria. José asks Abel to drive him to Maria’s house, and Abel promptly agrees. Abel drives José to Maria’s house and waits in the car with the engine running. José forces his way into Maria’s house and then beats and thereafter rapes her. If José and Abel are in a jurisdiction that recog- nizes the natural and probable consequences doctrine, the trier of fact could find that Abel is an accom- plice to the battery, burglary, and rape of Maria. Abel appears to have the criminal intent required to be an accomplice to battery because he assisted José in his quest to beat Maria. If burglary and rape were foreseeable when Abel drove a drunk and angry José to Maria’s house, the natural and probable con- sequences doctrine would extend Abel’s accomplice liability to these crimes. If Abel is not in a natural and probable consequences jurisdiction, the trier of fact must separately determine that Abel had the criminal intent required to be an accomplice to battery, burglary, and rape; Abel’s intent will be ascer- tained according to the jurisdiction’s accomplice intent requirement—either specific intent or pur- posely or general intent or knowingly.

CHAPTER 7 PARTIES TO CRIME 175

FIGURE 7.1 Diagram of Accomplice Liability

1.3 Consequences of Accomplice Liability An accomplice is criminally responsible for the crime(s) the principal commits. Although the senten- cing may vary based on a defendant-accomplice’s criminal record or other extenuating circumstances related to sentencing, such as prior strikes, in theory, the accomplice is liable to the same degree as the principal. So if accomplice liability is established in the examples given in Section 1; Phoebe is crimin- ally responsible for battery and child endangerment, Joullian is criminally responsible for prostitution, and Abel is criminally responsible for battery and possibly burglary and rape. The principal should also be criminally responsible for his or her own actions. However, occasionally a situation arises where the principal is not prosecuted or acquitted because of a procedural technicality, evidentiary problems, or a plea bargain, as is discussed in Section 1.

Prosecution of an Accomplice When the Principal Is Not Prosecuted or Is Acquitted

Although accomplice liability is derivative, in many jurisdictions the trier of fact can determine that a defendant is an accomplice even if the criminal actor or principal is not prosecuted or has been tried and acquitted for the offense.[13] Thus a defendant can be liable for a crime even though he or she did not commit it and the defendant who did was spared prosecution or found not guilty. While this situ- ation appears anomalous, if a defendant helps another commit a crime with the intent to further the crime’s commission, punishment for the completed crime is appropriate. As the Model Penal Code states, “[a]n accomplice may be convicted on proof of the commission of the offense and of his compli- city therein, though the person claimed to have committed the offense has not been prosecuted or con- victed or has been convicted of a different offense or degree of offense…or has been acquitted” (Model Penal Code § 2.06(7)).

Example of Prosecution of an Accomplice When the Principal Is Not Prosecuted Review the example in Section 1 with José and Abel. Assume that after José burglarizes, beats, and rapes Maria, local police arrest José and Abel. The police transport José and Abel to the police station and take them to separate rooms for interrogation. The police officer who interrogates José is a rookie and forgets to read José his Miranda rights. Thereafter, the police contact Maria, but she refuses to co- operate with the investigation because she fears reprisal from José. The district attorney decides not to prosecute José because of the tainted interrogation. In this case, Abel could still be prosecuted for bat- tery and possibly rape and burglary as an accomplice in some jurisdictions. Although José is the prin- cipal and actually committed the crimes, it is not necessary for José to suffer the same criminal prosec- ution and punishment as Abel. If the elements required for accomplice liability are present, Abel can be fully responsible for the crimes committed by José, whether or not José is prosecuted for or convicted of these offenses.

176 CRIMINAL LAW

Garrido Sentencing Video

Attorney: Nancy Garrido in Tears during Sentencing

Phillip Garrido, with his wife Nancy’s help, kidnapped Jaycee Dugard, an eleven-year-old girl, and held her cap- tive for eighteen years. During that time, Dugard was repeatedly raped, became pregnant twice, and gave birth to two children. Phillip Garrido pleaded guilty to multiple charges of rape and kidnapping and received a sentence of four hundred years to life in prison. Nancy was prosecuted as an accomplice, pleaded guilty and received a sentence of thirty-six years to life in prison.[14] Nancy Garrido’s attorney discusses her sentencing as an accomplice in this video:

Ghailani Verdict Video

Ghailani Guilty of One Count

Ahmed Ghailani, an alleged terrorist, was transferred from a military prison in Guantanamo Bay and tried as a civilian in a federal district court in New York. Ghailani was indicted for accomplice liability and conspiracy for the deaths of hundreds of citizens killed during Al Qaeda bombings of US embassies in Nairobi, Kenya, and Tanzania. At trial, the prosecution failed to convince the jury that Ghailani had the criminal intent required for accomplice liability. He was acquitted of the murders and attempted murders as an accomplice and convicted of one conspiracy charge. However, he received a sentence of life in prison without the possibility of parole for the conspiracy charge, the same sentence he would have received if convicted of all the murder and attemp- ted murder charges.[15] A news story on the conviction of Ghailani is shown in this video:

View the video online at: http://www.youtube.com/v/YfCFAmILBQo

View the video online at: http://www.youtube.com/v/ZUVRzJHA_tk

CHAPTER 7 PARTIES TO CRIME 177

K E Y T A K E A W A Y S

< The four parties to crime at early common law were principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact. These designations signified the following:

< Principals in the first degree committed the crime.

< Principals in the second degree were present at the crime scene and assisted in the crime’s commission.

< Accessories before the fact were not present at the crime scene, but assisted in preparing for the crime’s commission.

< Accessories after the fact helped a party to the crime avoid detection and escape prosecution or conviction.

< In modern times, the parties to crime are principals and their accomplices, and accessories.

< The criminal act element required for accomplice liability is aiding, abetting, or assisting in the commission of a crime. In many jurisdictions, words are enough to constitute the accomplice criminal act element, while mere presence at the scene without a legal duty to act is not enough.

< The criminal intent element required for accomplice liability is either specific intent or purposely or general intent or knowingly.

< The natural and probable consequences doctrine holds an accomplice criminally responsible if the crime the principal commits is foreseeable when the accomplice assists the principal.

< The consequences of accomplice liability are that the accomplice is criminally responsible for the crimes the principal commits.

< In many jurisdictions, an accomplice can be prosecuted for an offense even if the principal is not prosecuted or is tried and acquitted.

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Justin asks his girlfriend Penelope, a bank teller, to let him know what time the security guard takes his lunch break so that he can successfully rob the bank. Penelope tells Justin the security guard takes his break at 1:00. The next day, which is Penelope’s day off, Justin successfully robs the bank at 1:15. Has Penelope committed robbery? Why or why not?

2. Read State v. Ulvinen, 313 N.W.2d 425 (1981). In Ulvinen, the defendant sat guard and then helped her son clean up and dispose of evidence after he strangled and dismembered his wife. Thereafter, the defendant was convicted of murder as an accomplice. The defendant was asleep when the killing occurred, but before the killing her son told her that he planned to kill the victim. The defendant reacted with passive acquiescence by demurring and expressing disbelief that he would go through with his plans. Did the Supreme Court of Minnesota uphold the defendant’s murder conviction? The case is available at this link: http://scholar.google.com/ scholar_case?case=5558442148317816782&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Joubert v. State, 235 SW 3d 729 (2007). In Joubert, the defendant was convicted and sentenced to death based on his participation in an armed robbery that resulted in the death of a police officer and employee. The jury convicted the defendant after hearing testimony from his accomplice and reviewing a video of the defendant confessing to the offense. The defendant appealed the conviction because in Texas, accomplice testimony must be corroborated by other evidence, and the defendant claimed that the other corroborating evidence was lacking in this case. Did the Court of Criminal Appeals of Texas uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/ scholar_case?case=10119211983865864217&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

178 CRIMINAL LAW

vicarious liability

The transfer of a defendant’s liability based upon a special relationship.

corporate liability

The vicarious liability of a corporation.

2. VICARIOUS LIABILITY

L E A R N I N G O B J E C T I V E S

1. Distinguish between accomplice liability and vicarious liability. 2. Distinguish between corporate criminal vicarious liability and individual criminal vicarious

liability.

Vicarious liability, a concept discussed in Chapter 4, also transfers liability from one defendant to another. However, vicarious liability should not be confused with accomplice liability. Accomplice liab- ility is based on the defendant’s participation in a criminal enterprise and complicity with the criminal actor or principal, but vicarious liability transfers a defendant’s criminal responsibility for the crime to a different defendant because of a special relationship. With vicarious liability, the acting defendant also is criminally responsible for his or her conduct. Similar to the civil law concept of respondeat superior discussed in Chapter 1, vicarious liability in criminal law is common between employers and employ- ees. It is also the basis of corporate liability, which is discussed in Section 2.

2.1 Corporate Liability At early common law, corporations were not criminally prosecutable as separate entities, which was most likely because in England, corporations were owned and operated by the government. In modern times, American corporations are private enterprises whose actions can seriously injure other individu- als and the economy. Thus a corporation can be criminally responsible for conduct apart from its own- ers, agents, or employees.[16] In general, this is a vicarious liability, transferring criminal responsibility for an offense from an agent or employee of the corporation to the corporation itself, based on the em- ployment relationship. Of course, the agent or employee also is responsible for the crime he or she commits.

A corporation is vicariously liable only if an agent or employee commits a crime during the agent or employee’s scope of employment.[17] As the Model Penal Code states, “[a] corporation may be con- victed of the commission of an offense if…the conduct is performed by an agent of the corporation act- ing in behalf of the corporation within the scope of his office or employment” (Model Penal Code § 2.07(1)(a)). The criminal punishment for a corporation is generally payment of a fine.

Example of Corporate Liability

Harry, an employee of Burger King Corporation, shreds corporate documents in his office when Bur- ger King is sued civilly for sexual harassment in a multimillion-dollar class action suit. Under modern theories of corporate liability, both Harry and Burger King could be criminally prosecuted for obstruc- tion of justice. Note that Burger King’s liability is vicarious and depends on its relationship with Harry as an employer and the fact that Harry is acting within the scope of employment. Vicarious liability is distinguishable from accomplice liability, where the accomplice must be complicit with the criminal actor. The owners of Burger King, who are the corporate shareholders, did not actively participate in Harry’s conduct, although they will share in the punishment if the corporation is fined.

CHAPTER 7 PARTIES TO CRIME 179

FIGURE 7.2 Vicarious and Corporate Liability

2.2 Individual Criminal Vicarious Liability Generally speaking, criminal law disfavors criminal vicarious liability, the exception being corporate liability discussed in Section 2. Criminal vicarious liability violates the basic precept that individuals should be criminally accountable for their own conduct, not the conduct of others.[18] Although ac- complice liability appears to hold an accomplice responsible for principals’ conduct, in reality the ac- complice is committing a criminal act supported by criminal intent and is punished accordingly. In ad- dition, other statutes that appear to impose criminal liability vicariously are actually holding individu- als responsible for their own criminal conduct. Some examples are statutes holding parents criminally responsible when their children commit crimes that involve weapons belonging to the parents, and offenses criminalizing contributing to the delinquency of a minor. In both of these examples, the par- ents are held accountable for their conduct, such as allowing children to access their guns or be truant from school. The law is evolving in this area because the incidence of juveniles committing crimes is becoming increasingly prevalent.

K E Y T A K E A W A Y S

< Accomplice liability holds an accomplice accountable when he or she is complicit with the principal; vicarious liability imposes criminal responsibility on a defendant because of a special relationship with the criminal actor.

< In many jurisdictions, corporations are vicariously liable for crimes committed by employees or agents acting within the scope of employment. Individual criminal vicarious liability is frowned on, but the law in this area is evolving as the incidence of juveniles committing crimes increases.

180 CRIMINAL LAW

E X E R C I S E S

Answer the following questions. Check your answers using the answer key at the end of the chapter.

1. Brad, the president and CEO of ABC Corporation, recklessly hits and kills a pedestrian as he is driving home from work. Could ABC Corporation be held vicariously liable for criminal homicide? Why or why not?

2. Read People v. Premier House, Inc., 662 N.Y.S 2d 1006 (1997). In Premier House, the defendant, a housing cooperative that was incorporated, and members of the housing cooperative board of directors were ordered to stand trial for violating a New York law requiring that window guards be installed on apartment buildings. A child died after falling out of one of the windows. The members of the board of directors appealed on the basis that their positions were merely honorary, and they had no personal involvement in the crime. Did the Criminal Court of the City of New York uphold the order as to the members of the board of directors? Why or why not? The case is available at this link: http://scholar.google.com/ scholar_case?case=6854365622778516089&hl=en&as_sdt=2&as_vis=1&oi=scholarr.

3. Read Connecticut General Statute § 53a-8(b), which criminalizes the sale or provision of a firearm to another for the purpose of committing a crime. The statute is available at this link: http://law.justia.com/ connecticut/codes/2005/title53a/sec53a-8.html. Does this statute create accomplice liability or vicarious liability? Read the Connecticut Criminal Jury Instruction 3.1-4 for an explanation of the statute. The jury instruction is available at this link: http://www.jud.ct.gov/ji/criminal/part3/3.1-4.htm.

L A W A N D E T H I C S : L I F E C A R E C E N T E R S O F A M E R I C A , I N C .

Is a Corporation Criminally Accountable When Its Employees Are Not?

Read Commonwealth v. Life Care Centers of America, Inc., 456 Mass. 826 (2010). The case is available at this link: http://scholar.google.com/ scholar_case?case=12168070317136071651&hl=en&as_sdt=2&as_vis=1&oi=scholarr. In Life Care Centers, a res- ident of the Life Care Center nursing home died in 2004 from injuries sustained when she fell down the front stairs while attempting to leave the facility in her wheelchair. The resident could try to leave the facility be- cause she was not wearing a prescribed security bracelet that both set off an alarm and temporarily locked the front doors if a resident approached within a certain distance of those doors. The defendant, Life Care Centers of America, Inc., a corporation that operates the nursing home, was indicted for involuntary man- slaughter and criminal neglect.[19] The criminal intent element required for involuntary manslaughter and criminal neglect in Massachusetts is reckless intent. The evidence indicated that the order requiring the vic-

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