Principals and Accessories

Principals and Accessories

The four labels introduced above come out of a two-stage sorting. For felonies, the common law began by dividing guilty parties into principals and accessories, and it then divided each group again: principals became first-degree or second-degree, and accessories became accessories before the fact or accessories after the fact.¹ That double division produced the four categories of felony participants.² The categories are easiest to learn as positions on two scales, because the same two questions generate every one of them.

The first question is what the actor did: committed the offense, helped or encouraged someone else to commit it, or protected the offender once it was over. The second question is where and when the actor stood in relation to the crime: at the scene while it happened, away from the scene beforehand, or somewhere else after the felony was complete. Placing an actor on both scales yields the label. The person who commits the offense is the principal in the first degree, a helper who is at the scene is the principal in the second degree, a helper who is absent from the scene is the accessory before the fact, and a person who helps only after the felony is complete is the accessory after the fact.³ The sections that follow define each label in full. For now, the point is that each label is a different answer to the same pair of questions.

Presence does the most delicate work on the scales. A principal in the second degree and an accessory before the fact may have done the same thing, such as advising, encouraging, or supplying help, and the only difference between them is whether the helper was actually or constructively present when the crime was committed.⁴ That line has a history. On the ancient analysis only the actual perpetrator was a principal, and every other guilty party was an accessory, sorted by time and place into accessories before the fact, at the fact, and after the fact.⁵ At a relatively early point the accessory at the fact was moved out of the accessory group and relabeled a principal in the second degree, which left the felony scheme with two kinds of principals and two kinds of accessories.⁶ Presence therefore marks the old boundary between the helpers the law treated as principals and the helpers it treated as accessories.

A single scheme can contain every status. A boss sends three people to rob a bank: one to take the money, one to stand lookout, and one to drive the getaway car. The boss also arranges for the three to hide afterward at a mountain cabin, where the boss and a companion provide the shelter. The person who takes the money is the principal in the first degree. The lookout and the driver are principals in the second degree, the driver being constructively present because the work done outside the bank aids the crime inside it. The boss counseled the crime from elsewhere and is therefore an accessory before the fact, and the boss and the companion who knowingly shelter the robbers are accessories after the fact.⁷

The whole four-way sorting reaches only felonies. When treason was committed, everyone who would have fallen into any of the four felony categories was classified as a principal. When a misdemeanor was committed, all parties were again principals, so that post-crime aid to a misdemeanant was not criminal at all.⁹ The limit makes sense once you see what the labels were for. Each label carried its own rules about when and how the actor could be tried and convicted, and those rules grew up in a system in which every felony was punishable by death. One of them, the rule that a person charged as one kind of party could not be convicted as another, was a device judges used to reduce executions.¹⁰ A misdemeanor carried no such penalty, so the machinery had little to do there, and every participant simply stood as a principal.

The trap is carrying the accessory labels into a misdemeanor, where the only party status is principal and help given after the offense is not a crime. Whenever a fact pattern involves a party-liability question at common law, the first step is to confirm that the target offense is a felony, because the rest of the sorting depends on it. With the framework and its felony limit in place, the labels can be taken one at a time in the order a crime unfolds.

Principal in the First Degree

Of the four labels, the first-degree principal gives the simplest answer to the two questions that generate every category: this actor committed the offense. The principal in the first degree is the person who personally commits the act or omission that constitutes the criminal offense.¹² Each substantive offense is defined by what an actor must do, and with what mental state, to be guilty, and the first-degree principal is the person whose conduct and state of mind supply those elements.¹³ Nothing further need be shown about aid, encouragement, or proximity to someone else's crime, because the actor's own conduct satisfies the definition of the offense itself. Where the offense can be committed by failing to act, the omission takes the place of the act, so the person who personally fails to do what the law required, with the required mental state, is the first-degree principal.¹⁴ The professional killer who shoots and kills the victim is the standard case.¹⁵ In the bank scheme from the previous section, the one who performed the robbery inside the bank held this status, while the lookout and the driver did not.¹⁶

The status is not limited to one person per crime. When one man beats a victim and another shoots him, both may be first-degree principals to the murder, and two people who forge separate parts of the same instrument are both first-degree principals to the forgery.¹⁷ The only constant is that a crime requires at least one. Presence at the scene deserves a word here, because presence is what separates the second-degree principal from the accessory before the fact, and a reader may assume it matters for the first-degree principal as well. It does not operate as a condition of the status. Someone who leaves poison for another person who later drinks it is constructively present through the instrument left behind, and is a first-degree principal, as is the person whose unwitting agent acts in that person's absence.¹⁸ The label turns on who commits the offense, so most first-degree principals are at the scene, but the status does not depend on it.

The category reaches past the person who acts with bare hands. In State v. Ward the court described the first-degree principal as one who commits the crime by his own hand, by an inanimate agency, or by an innocent human agent.¹⁹ The extension answers a gap that would otherwise open. If liability stopped with the person who physically performs the act, an offender could escape by getting a child, a deceived person, a coerced person, or even a trained animal to do the work. Treating the instrument's act as the offender's own closes that gap. An innocent agent is someone who commits a criminal act but lacks the capacity or the mens rea to commit a crime, and who has been fooled or forced into acting.²⁰ The agent can be a child or a mentally incompetent person, an animal, or an inanimate object such as a computer programmed to destroy files.²¹ The law regards the agent as a mere instrument. The agent's conduct supplies the actus reus, the principal's own mens rea supplies the mental element, and the combination is imposed on the principal.²²

The drug-delivery case shows the mechanism at work. A drug dealer who tells a teenager that a package is medicine, and has the teenager deliver it, has used an innocent agent. The teenager performed the delivery but lacked the mens rea, so the teenager committed a criminal act without committing a crime, and the dealer is the first-degree principal for the delivery.²³ The same reasoning covers a person forced at gunpoint to commit a crime, who is an innocent agent while the coercer is the first-degree principal.²⁴ How duress operates as a defense for the person forced is a separate topic. For present purposes, the forced actor has not acted on a free and blameworthy choice, and the law treats that actor as the instrument. Because the agent supplies only the conduct, the principal's liability is measured by the principal's own mental state. If A, intending B's death, causes a child to take B's life, A is guilty of intent-to-kill murder. If A only negligently causes B to make false statements to C, A has not committed false pretenses, because that offense requires an actual intent to defraud.²⁵ The attribution therefore never expands liability beyond what the principal's own mind supports.

Two points of terminology follow from this, and both are commonly confused. First, when someone uses an innocent agent, the law considers that person a principal in the first degree and not an accomplice, because the agent's act is treated as the principal's own act.²⁶ The structure explains why. Accomplice status attaches to someone who helps another person commit a crime, and the innocent agent has committed no crime to be helped. Exam answers go wrong when they treat the user of an innocent agent as an accomplice. The true offender is the person whose guilty mind was the last blameworthy mental cause of the act, which is the instigator and not the instrument.²⁷ Second, the agent is not a party to any offense at all, neither a first-degree principal nor an accomplice, so the teenager who unknowingly delivered the package stands outside the four categories. That contrasts with the lookout, who is a participant in the robbery but, because the lookout does not personally commit it, is at most a principal in the second degree.²⁸

Principal in the Second Degree

A principal in the second degree is a person who aids, commands, or encourages the principal in the first degree and who is present at the scene of the crime.³⁰ The definition combines a question about conduct with a question about position. The conduct question asks whether the actor helped the perpetrator or urged the perpetrator on, and the position question asks whether the actor was at the scene when the felony was committed. Early law did not rank this actor as a principal at all but called the actor an accessory at the fact, a label that still captures the idea of a helper who assists at the very time the offense is committed.³¹ The standard illustration is a car owner who sits beside the chauffeur while the chauffeur kills someone by driving too fast, because the owner is aiding and abetting at the moment of the offense.³² Of the two questions, position carries most of the weight in this category, since the helper beside the perpetrator and the helper who planned the crime from far away may have contributed exactly the same things.

The aid or encouragement can take several forms. A physical act of assistance qualifies, such as standing lookout for a robber or preventing another person from delivering a warning to the victim, and speaking words of encouragement has also been held sufficient.³³ In Hicks v. United States the prosecution's evidence was that the defendant, on horseback a few feet from the victim and the shooter, said something to the victim just before the shot that the prosecution read as telling him to take his death like a man.³⁴ The Supreme Court reversed because the instruction allowed conviction based on the effect of the words, without requiring that they be used to encourage the shooting, a mental-state requirement addressed separately under accomplice liability.³⁵ The help also does not have to be what made the crime possible. Courts do not demand proof that the crime would have failed without the aid, only that the aid could have been effective.³⁶ In State ex rel. Attorney General v. Tally, a judge sent a telegram to the operator who was holding a warning addressed to the victim of a planned killing, the operator delayed delivering it, and the court held the sender aided the killers because assistance that makes a crime easier or removes one chance of escape is enough.³⁷

Presence is the hinge between this category and the accessory before the fact, and the classification cannot be run without it. A helper who advises, encourages, or supplies aid is a principal in the second degree if actually or constructively present when the felony is committed, and an accessory before the fact if absent.³⁸ In State v. Williamson the Maryland court called presence or absence the key factor separating the two and described a person as constructively present when cooperating with the perpetrator and so situated as to be able to aid, with the perpetrator aware of it, in securing the common purpose.³⁹ The State there argued that a wife was constructively present at her husband's murder because she was physically close enough to help, but the court noted there was no evidence that she acted as a lookout, and it left the question undecided because the evidence already made her an accessory before the fact.⁴⁰ Because the labels depend on where the helper stands at the moment of the offense, one person can hold both: someone who counsels the crime beforehand and then appears at the scene to assist is an accessory before the fact and also a principal in the second degree.⁴¹ A helper who hands over a weapon days earlier and then stays home remains only an accessory before the fact.⁴²

The most common error here treats the planner of a crime as present because the planner was deeply involved. In State v. Sowell the evidence was that the defendant had planned a robbery of his employer's office, down to a map of where the employees would stand, had told the robbers to go ahead as they waited in parked cars, and had then driven off on his regular route so he would seem uninvolved, with a plan to meet them afterward and split the money.⁴³ The Maryland court held that this made him an accessory before the fact but not a principal in the second degree, because nothing showed him waiting as a lookout or in a getaway car, and nothing showed that he could render aid while the robbery was under way.⁴⁴ He had been tried only as a second-degree principal, a status that requires presence, so his convictions were reversed.⁴⁵ Students lose this issue when they treat planning as a substitute for presence. Presence is a fact about where the helper was and what the helper could do while the crime occurred, so no amount of earlier involvement can supply it.

Actual presence is the easy case: a helper who stands inside the bank assisting the robber while the offense is carried out is at the scene and is rendering aid.⁴⁶ The harder question is the helper who is not in the room, and the law answers it with constructive presence, which treats a helper stationed near enough to assist or protect the perpetrators during the crime as present. The reason is practical. If the status demanded physical proximity, an offender could post a helper a block away and escape the label, even though that helper's watch gives the perpetrators the same protection a helper inside would give. The test therefore asks what the helper is doing and where the helper is stationed in relation to the plan, and the number of feet from the perpetrator does not control. Early authority illustrated the idea with a lookout who keeps watch at a convenient distance while another commits a robbery or murder.⁴⁷ The Tally court likewise treated standing guard, preventing interference, and passing along information useful to the perpetrators as enough, however far away, so long as the vigil promises some protection to those carrying out the crime.⁴⁸ The helper's position must still connect to the plan, because a watch that the perpetrators neither arranged nor knew about cannot have encouraged them, which is why the Tally court rested its result on the telegram and not on the vigil.⁴⁹

The lookout and the getaway driver are the standard examples. A lookout who alerts the shooter to the victim's approach and a driver who waits in the getaway car are each treated as constructively present, because each is near enough to assist the first-degree principal if needed.⁵⁰ The driver, though outside the building, aids the crime inside it by being stationed there.⁵¹ In Enmund v. Florida the Florida Supreme Court reasoned that a man who waited in a car by the side of the road, a few hundred feet from the house where two people were robbed and killed, ready to help the robbers escape, was constructively present and therefore a principal in the second degree.⁵² Florida's formulation asks whether the helper, acting on a previous understanding with the perpetrator, was near enough and so situated as to encourage or assist in the felony or in the escape.⁵³ Whether the death penalty could constitutionally be imposed on such a defendant was a separate question that the Supreme Court answered on other grounds.⁵⁴ Set beside Sowell, the two cases show where the line falls. Enmund's few hundred feet did not matter, because he was stationed to help under an understanding with the robbers, while Sowell's planning did not matter, because he had arranged to be elsewhere and could give no help while the robbery was in progress.

Position alone is still not enough, because the category also requires aid or encouragement. Where a defendant is merely at the scene in circumstances that suggest approval, courts usually refuse to impose liability, with exceptions such as a person under a legal duty to act, like a parent who stands idly by while a minor child attacks someone.⁵⁵ The reason lies in what the category punishes. Presence describes where a person is, and liability requires something the person did to help the felony, so a rule that made every onlooker a second-degree principal would convict people for being somewhere rather than for anything they did. The instruction in Hicks reflects this: the trial judge told the jury that presence alone would not make the defendant guilty, though it was a circumstance to weigh, since no one can be guilty as a second-degree principal without being present, actually or constructively.⁵⁶

Whether the shout must also be meant as encouragement is a question about mental state, which accomplice liability addresses separately. For the labels, the conduct element is simply aid or encouragement, and the position element is actual or constructive presence.

The last point concerns what the label costs the defendant. A principal in the second degree is guilty of the felony itself, and the law does not create a separate, lesser crime of helping for such a person. At common law the first-degree and second-degree principals faced the same penalty, and neither had to be convicted before the other.⁵⁷ The split between the two degrees therefore describes roles rather than levels of guilt, and it mattered mainly under unusual statutes that set different penalties for the two.⁵⁸ The category that did receive different treatment is the accessory before the fact, who at common law could not be punished until the principal was convicted and generally faced lighter penalties, which is one reason the presence line studied here carried so much weight.⁵⁹

Accessory Before the Fact

The second-degree principal helps at the scene, and the accessory before the fact is the helper who stays away. This actor aids, abets, or encourages the commission of the felony but is not present, actually or constructively, when it occurs.⁶¹ The category is best learned as the counterpart of the second-degree principal, because the two share the same kind of conduct and differ only in position. A helper who advises, encourages, or supplies aid is a second-degree principal if actually or constructively present at the felony, and an accessory before the fact if absent.⁶² The older formulation makes absence the essential feature of the category, since a procurer who is on the scene is guilty as a principal.⁶³

The label records timing and location. A person who supplies the gun or urges the killing in advance contributes to the crime as surely as one who stands nearby, so the position line separates roles without ranking guilt. At common law the accessory before the fact was convicted of the felony itself, although the classification still carried consequences.⁶⁴ Those consequences were procedural: an accessory before the fact could not be punished unless the principal had first been convicted.⁶⁵ Because rules like that applied to the absent helper alone, sorting the absent helper from the present one decided which rules governed, which is why presence received so much attention in the preceding discussion. The procedural rules and the modern statutes that dropped them come up again later in this chapter.

The standard examples involve help given in advance. A person whose only role is to give the principal a weapon some time before the crime is an accessory before the fact, and so is someone who obtains the murder weapon for the shooter.⁶⁶ Encouragement and planning qualify in the same way. A boss who dispatches robbers to a bank and counsels the plan, while staying away, is an accessory before the fact rather than a principal, because the boss was not there when the crime was committed.⁶⁷ A common error classifies the helper by when the help was given, but the label depends on where the helper stands when the felony occurs. Someone who gives the weapon beforehand and later waits in the getaway car is stationed to assist, and a weapon-supplier who then waits in the getaway car is therefore a second-degree principal.⁶⁸

The category is generous about how the help is delivered. The aid or counsel may come long before the offense, so long as it keeps some relationship to the crime by causing, encouraging, or assisting it, and specific material aid makes the giver an accessory even if the perpetrator never uses it.⁶⁹ The quantity of aid does not matter, it may pass through an intermediary, and the accessory need not be the originator of the plan, since a person who is enlisted to lend aid and then lends it qualifies as well.⁷⁰ Effectiveness is less settled. The help need not be necessary or determinative, though some courts require that it be at least minimally effective, so an encouraging note left on the kitchen table and never read by the perpetrator may not support the charge in those jurisdictions.⁷¹ Each of these points follows from what the category punishes, which is the contribution, however slight, of someone who chose to support the felony before it happened.

Liability attaches to the felony the accessory procured, and the particular method does not control. A person who hires another to poison a victim is an accessory before the fact to the murder even if the hired killer shoots the victim instead, but a person who counseled one crime does not become an accessory when an entirely different offense is committed.⁷² The accessory's culpability rests on supporting a felony of that kind, so a change of means leaves the support intact while a change of crime severs it.

In State v. Williamson the Maryland court treated presence or absence as the key factor separating an accessory before the fact from a second-degree principal. It found sufficient evidence that a wife was an accessory before the fact to her husband's murder, and the record showed no proof that she acted as a lookout.⁷³ Because accessory status was already established, the court did not decide whether she was constructively present, and it observed that the classification mattered even though a conviction as an accessory is a conviction for the crime itself.⁷⁴ In State v. Sowell the planner of a robbery had scouted the setting and signaled the robbers to go ahead before driving away to avoid suspicion. The court said this made him an accessory before the fact but did not make him present, and his convictions fell because he had been tried only as a second-degree principal.⁷⁵ The facts fit one label and the charge named the other, a mismatch that returns when this chapter reaches the procedural rules.

The category also requires help actually given in advance. In State ex rel. Attorney General v. Tally the court found no proof that the defendant had commanded, directed, incited, or encouraged the killers before they left. He therefore could not be an accessory before the fact in the sense of prior instigation, and the court had to ask instead whether he was a principal in the second degree.⁷⁶

One refinement is worth knowing, though it does not change the definition. An old exception denied that there could be an accessory before the fact to sudden, unpremeditated offenses such as manslaughter. In State v. Ward the Maryland court, asked whether there can be an accessory before the fact to second-degree murder, found little help in the common law, noted that the exception has been rejected in later authority, and pointed to a statute providing punishment for accessories to second-degree murder.⁷⁷ The reasoning is straightforward: a person can instigate or equip another to act in the heat of the moment, so the principal's lack of premeditation does not erase the helper's contribution.

Accessory After the Fact

The three categories studied so far all describe people who took part in the felony itself, whether by committing it, by helping while it happened, or by helping in advance. The accessory after the fact is the helper who arrives once the felony is over. This person, knowing that a felony has been committed, provides assistance to the principal in order to help the principal avoid arrest, prosecution, or conviction.⁷⁹ The Maryland court in State v. Ward gave the same definition in slightly different words, describing the actor as one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder detection, arrest, trial, or punishment.⁸⁰ Each phrase of those definitions does work, and the rest of this section takes them in turn.

Timing is what separates this actor from the other three. The accessory after the fact played no role in the preparation or commission of the crime and instead assisted the felon in eluding capture or destroying evidence.⁸¹ That difference shaped how the law came to treat the category. Because the involvement began only after the felony was finished, it was later recognized that the accessory after the fact was not truly an accomplice in the felony, and the actor is today understood as someone who obstructs justice.⁸² The reasoning follows from what the helper actually does: the felony would have happened exactly as it did without the help, but the help makes it harder to apprehend and convict the people responsible.⁸³ What this means for the helper's guilt and punishment is taken up in a later section, so the work here is identifying who qualifies.

The first step guards the boundary with the other three categories. Help given before or during a felony is participation in the crime itself, so a helper qualifies as an accessory after the fact only if the felony was already complete when the aid was given.⁸⁵ Completion must actually exist. A helper who mistakenly believes the person aided committed a felony is not an accessory after the fact, and neither is a helper who aids someone who has merely been accused of one, although the felon need not yet have been formally charged.⁸⁶ The rule is applied strictly: a person who helps a killer after the fatal acts but before the victim dies cannot be convicted as an accessory after the fact to murder, because the murder is not yet complete.⁸⁷

The same boundary explains why a getaway driver can land in different categories on different facts. A driver stationed under a prior arrangement with the robbers, as in the earlier discussion of constructive presence, is a principal in the second degree. A driver who waits outside a liquor store with no part in any plan, learns of the robbery only when the robbers run out and shout for a quick start, and then drives off has not encouraged or assisted a crime that was complete when the robbers left the store with the money, and so probably faces at most accessory-after-the-fact liability.⁸⁸

The second step asks what the helper knew when giving the aid. The helper must have known that the person aided committed the felony, and mere suspicion does not satisfy the requirement.⁸⁹ The knowledge must reach both facts: that a completed felony occurred and that the person being helped is the guilty party.⁹⁰ This requirement keeps the status from reaching people who unwittingly help someone who happens to be a felon, because a helper who does not know of the felony cannot have the purpose of frustrating the response to it.

The third and fourth steps turn to the help itself. The aid must go to the felon personally and must be given for the purpose of hindering the felon's apprehension, conviction, or punishment.⁹¹ Each half excludes something. A person who receives and conceals goods known to be stolen has not aided the felon personally, and a person whose assistance reaches the felon out of charity or a similar motive lacks the objective of impeding law enforcement.⁹² Within those limits the qualifying acts are varied: harboring and concealing the felon, helping the felon escape, concealing, destroying, or altering evidence, inducing a witness to stay away or stay silent, testifying falsely at an official inquiry, and giving the police false information to divert suspicion.⁹³ A friend who knows of a robbery and buys plane tickets for the robber while helping to hide the proceeds has therefore given knowing, affirmative help meant to let the robber get away.⁹⁴ In Self v. People the defendant had seen a murder committed, then concealed the weapon and gave officers false evidence meant to throw suspicion away from the killer, and the conviction for being an accessory after the fact to murder was affirmed.⁹⁵

Silence is the point where the requirement of an affirmative act does its most important work. The assistance must be an intentional, positive act, and a mere failure to notify the authorities does not qualify.⁹⁶ The same is true of a failure to report the felony or to arrest the felon.⁹⁷ Even refusing to give information when asked falls short, although supplying a phony alibi or false information about where the felon went would change the answer.⁹⁸ The reason is that the status punishes interference with the machinery of justice, and a person who says nothing has done nothing for the felon's benefit. Treating silence as help would make criminals of everyone who knows of a felony and keeps quiet, a far wider rule than the one the law adopted. The trap on an exam is to treat failing to tell the police as assistance, so the facts to look for are the verbs, such as hid, drove, lied, or destroyed.

Misprision of felony is the separate offense nearest to punishing silence, and it should be kept distinct from this status. At common law it was directed at a person who knew a felony had been committed and kept it from the authorities by not reporting it.⁹⁹ A federal statute, 18 U.S.C. § 4, enacted in 1908, makes misprision a crime, but it has been interpreted to require active concealment, so a person cannot be convicted simply for failing to report.¹⁰⁰ Most jurisdictions no longer treat misprision as an offense at all.¹⁰¹ The two offenses ask different questions. The accessory after the fact must have helped the felon personally in order to hinder justice, while misprision is aimed at keeping the felony itself from the authorities, so a person who merely knows and stays quiet is not an accessory after the fact and, under the federal statute, is not guilty of misprision either.

The status is also reserved for someone who took no part in the felony. A principal in the first or second degree cannot become an accessory after the fact through later acts, so robbers who shelter one another after a robbery do not thereby become accessories to their own crime.¹⁰² By contrast, one who was only an accessory before the fact may also be an accessory after the fact, and a person who was present at the felony without aiding or encouraging it, but later gives aid, is liable only as an accessory after the fact.¹⁰³ Where a boss dispatches robbers to a bank and then shelters them at a mountain cabin, the boss acts in a dual capacity, as accessory before the fact and as accessory after the fact, while the boss's girlfriend who also shelters them is an accessory after the fact only if she knew of the robbery.¹⁰⁴ The girlfriend's position shows the knowledge element in its plainest form, since the same hospitality is innocent without knowledge and criminal with it. Whether these helpers are treated as guilty of the felony or of some lesser offense is the question the later section on felony guilt answers.