ACCOMPLICE LIABILITY SUMMARY

A. MENS REA FOR THE ACCOMPLICE

(1) With regard to the accomplice’s CONTRIBUTION to/PROMOTION
of (e.g., encouragement of/assistance of) CONDUCT of PRINCIPAL
(a) The clear MAJORITY position is that a SPECIFIC INTENT/
PURPOSE IS REQUIRED; MPC 2.06(3) takes that position (“with
the PURPOSE of promoting or facilitating”)
(b) Alternative positions: (i) Knowing that one is
promoting/furthering/facilitating the conduct of the principal is
always sufficient; (ii) Knowing that one is substantially
promoting/futhering/facilitating is sufficient (i.e., one must know
he/she is making such a substantial contribution to the conduct
of the principal), but specific intent/purpose is required if the
promotion/contribution/facilitation is not substantial; or (iii)
Knowing promotion/furtherance/facilitation is sufficient for
major/serious crimes, but intent/purpose is required for minor
crimes
(2) For RESULT elements of crimes – Whatever the crime prescribes is
required and sufficient; both common law and MPC 2.06(4)
(3) For CIRCUMSTANCE elements of crimes – two approaches
(a) Whatever the crime prescribes is necessary and sufficient.
(b) Knowledge is required even if a crime requires less; (note it is
possible a court could deem negligence enough for a strict
liability crime).
(c) Split under common law; MPC takes no position/leaves to
courts to decide whether to take the approach in (a) or (b).
ACCOMPLICE LIABILITY SUMMARY

(4) Natural and Probable/Reasonably Foreseeable

Consequences Doctrine – expansion of accomplice liability
that suspends the usual Mens Rea requirements for
accomplice liability
(a) If the accused intentionally/purposely
promotes one crime
(b) He or she is responsible for other natural
and probable/reasonably foreseeable criminal
acts of the principal
(c) With regard to these other “probable/
foreseeable” criminal acts, the accomplice need not
have the intent or purpose to promote them; nor
does the accomplice have to have the mens rea for
other elements of the “probable/foreseeable”
crimes.
(d) This is a minority view; the majority and the MPC
reject the doctrine.
 ACCOMPLICE LIABILITY SUMMARY
B. ACTUS REUS FOR THE ACCOMPLICE

(1) ENCOURAGEMENT: (a) Common Law: Any ENCOURAGEMENT (commanding;

requesting; counseling; advising), if communicated to principal, is sufficient; (b)
MPC 2.06(3): It is sufficient if the accomplices “solicits” the principal to commit
the offense (soliciting includes commanding; encouraging; requesting) and it does
not matter that the accomplice fails to communicate with the principal if his
conduct was designed to communicate (see MPC 5.02(1),(2)).
(2) AID: Common Law and MPC 2.06(3)(“aids”) are the same: Any amount of AID
(ASSISTANCE/FACILITATION) is sufficient.
(3) AGREEMENT TO AID: Common law and MPC 2.06(3)(“agrees . . . to aid”) are
the same: an agreement to aid is a sufficient act
(4) ATTEMPTS TO AID – only MPC 2.06(3) holds that an “attempt[] to aid” is
sufficient; an unsuccessful attempt to aid is not sufficient at common law
(5) OMISSIONS: Both the common law and the MPC 2.06(3) (“fails to make
proper effort to” prevent commission) hold that omissions can be sufficient if the
accomplice has a legal duty to prevent commission
(6) Neither the common law nor the MPC require that the accomplice’s acts be the
BUT FOR CAUSE of the acts of the principal.
(7) SPECIAL PROVISION OF MPC: Section 5.01(3) - If a person engages in
conduct designed to aid another to commit a crime that would be sufficient for
accomplice liability under MPC 2.06(3) BUT the principal does not commit a crime
or attempt a crime, then the person is himself or herself guilty of an attempt to
commit the crime. This possibility did not exist at common law and still is not
available if a jurisdiction had not enacted a provision like 5.01(3).
 ACCOMPLICE LIABILITY SUMMARY
C. RELATIONSHIP BETWEEN LIABILITY OF ACCOMPLICE AND PRINCIPAL

(1) THE “GUILTY PRINCIPAL” RULE: There can be no accomplice liability without a
guilty principal/the commission of a crime by the principal.
(a) MENS REA AND ACTUS REUS: At a minimum, this means that the
principal must have the mens rea and actus reus for the crime.
(b) JUSTIFICATIONS/EXCUSES: It is arguable whether a defense classified
as a justification or an excuse (a defense that precludes liability for a principal) means
that there is no guilty principal for purposes of accomplice liability. The lack of
culpability reflected in the justification or the excuse could support a conclusion that
there is no guilty principal (and thus no accomplice liability). On the other hand, it is
possible that a justification may be “personal” for the principal—i.e., that a principal’s
justification will not preclude conviction of the accomplice. It seems even more likely
that an principal’s excuse would be deemed “personal” and, therefore, would not prevent
conviction of an accomplice under the “guilty principal” rule.
(c) IMMUNITIES: A principal’s “immunity” type of defense (one not rooted in
a lack of culpability, but based on some policy choice that means the principal is “not
convictable,” does not preclude conviction of an accomplice.
(2) There is a split over whether an accomplice can be liable for a more serious offense
than one committed by the principal; some allow conviction of a more serious offense,
some do not.
(3) An accomplice generally can be liable for a less serious offense than the principal
committed (if, for example, the accomplice has a mens rea for a lesser offense)
(4)The Guilty Principal Rule does NOT mean that a principal must be CONVICTED or
even that accomplice liability is not possible if a principal is ACQUITTED; it means that
the “guilt” of the principal must be proven in the trial of the accomplice.
 ACCOMPLICE LIABILITY SUMMARY

(5) INNOCENT AGENT DOCTRINE: Under both the common law and
MPC (2.06(2), if an individual CAUSES an INNOCENT agent to engage
in conduct, that individual can qualify as the principal in a crime.
(a) The Person who actually performs the conduct must be
“innocent” or “irresponsible” – e.g., child, mentally impaired
person; duped individual—someone not exercising or likely to
exercise volition in these;
(b) The Principal’s acts must be the actual (“but for”) and
proximate cause of the conduct of the innocent agent.

(6) SPECIAL DEFENSES TO ACCOMPLICE LIABILITY FOR OFFENSES

(a) Both the common law and the MPC (2.06(6) hold that a
“victim” of an offense (an individual the offense is designed to
protect) cannot be convicted as an accomplice even though all
requirements of accomplice liability might be provable.
(b) “Withdrawal” is a possible defense at common law and under
the MPC 2.06(6) [Note: You are not responsible for withdrawal
if it is not discussed in class.]
ACCOMPLICE LIABILITY SUMMARY
D. THE ALTERNATIVE TO ACCOMPLICE LIABILITY

(1) Accomplice liability is the ordinary way of holding one person

responsible for another’s criminal acts; the accomplice is liable for the
criminal offense of the principal because of his contribution to that
offense.
(2) When accomplice liability is not possible for some reason (e.g.,
principal is not guilty of offense; accomplice lacks some mens rea
required for accomplice liability, but that mens rea is not necessary to
be a principal), it may be possible to hold the individual liable instead
as a PRINCIPAL.
(3) However, this requires that the alleged principal CAUSE the
acts/conduct of the other person and the novus actus interviens
(voluntary intervening act) principle/doctrine (see more detailed in-
class slides for NAV doctrine at end of this summary) may well
prevent sufficiently direct – i.e., proximate - causation if the other
person’s acts are volitional/voluntary/freely-chosen.
(4) The “innocent agent doctrine” is entirely consistent with this
causation limitation because innocent agents have impaired volition and
thus their acts are not voluntary/freely-chosen.
 The Novus Actus Interviens
(New Intervening Act) Doctrine
(1) The Novus Actus Interviens Doctrine: “The law of
causation . . . ordinarily does not treat human action
produced by an initial actor’s conduct as ‘caused’ by
the initial actor, even when the subsequent human
action is entirely foreseeable. . . . . As it is
sometimes put, there has been a novus actus
interviens---a later action by another person that
displaces the relevance of [the initial actor’s] prior
conduct.” (p. 625; see also note 1, p. 633)(Root
illustrates the principle; as does Kevorkian, p. 620)
 The Novus Actus Interviens Doctrine
(2) Voluntariness Qualification: This novus actus interviens
principle applies “only” when the “subsequent human actions” that
intervene have been “chosen freely,” (p. 625), that is, “when
the subsequent action reflects a voluntary choice” by the
subsequent actor (p. 634). Consequently, the doctrine does not
apply and does not impede “causation” when the intervening
subsequent actions are:
(a) “involuntary” actions (p. 625);
(b) actions taken by the subsequent actor “without
knowledge of the relevant circumstances” (p. 625); or
(c) actions that are “‘constrained’ by compulsion of duty,
by duress, or by a momentary emergency precipitated
by the prior actor.” (p. 626) (see Kern and Matos, p.
634)
As a result, it can be “crucial to determine whether the
subsequent actions were freely chosen by the second actor.” (p.
626)
 The Novus Actus Interviens Doctrine

(3) Another factor that can influence conclusions about whether

subsequent human action will be considered an independent
intervening cause is whether the “[s]ubsequent actions” are
“intended to cause harm” or instead are “reckless” or “negligent”
with regard to the causation of harm (pp. 633-634). While
intervening actions performed with the intent to cause harm
typically DO break the causal chain (see Kevorkian), intervening
actions that recklessly or negligently create risks of harm
sometimes insulate the prior actor from liability (see Root) and
sometimes do not. (See McFadden; Atencio; “drug provider” note
on p. 640).
(4) In sum, the novus actus interviens doctrine might or might not
be applied to voluntary subsequent intervening actions that
recklessly or negligently risk harm. The earlier actor might or
might not be considered the “cause” of the harm---i.e., might or
might not be eligible for liability for a crime as a “principal” who
caused the harm himself or herself.