Procedural Consequences at Common Law

Procedural Consequences at Common Law

The four labels settled who was guilty of the felony, and the earlier sections showed that three of them led to conviction for the felony itself. At common law the labels also governed how a prosecution had to be brought, because the distinctions among the categories of parties carried significant procedural consequences.¹ The classification produced many procedural difficulties, but a principal in either degree or an accessory before the fact could still be convicted and punished for the felony once the prosecution overcame them.² The labels therefore shaped the route to conviction, and the destination, once the route was completed, was the felony.

The rules along that route are best understood as technical devices that mostly favored the accused. Felonies carried the gravest punishments, and technical procedure gave courts a way to narrow who could actually be convicted. The rules grew out of the distinction between principals and accessories before the fact, and they were not altogether logical. They operated to the advantage of the accused and the detriment of the prosecution, and they tended to shield accessories from punishment even when the evidence of their assistance was overwhelming.³ Part of the explanation follows from the structure already described. An accessory's guilt is derivative, depending on someone else's commission of the felony, so any procedure for trying an accessory had to decide how that case related to the principal's case. The common law resolved that question in ways that protected the accessory.

The contrast that runs through the technical rules is between the accessory and the principal in the second degree. A principal in the second degree could be tried and convicted before the principal in the first degree, or even after the first-degree principal had been tried and acquitted, and could be convicted of a higher or a lower crime than the first-degree principal. The accessory took a different path, since an accessory could not, without consent, be tried before the principal and could not be convicted of a higher crime than the principal.⁴ The usual error is to extend the accessory's protections to a helper who was present at the scene, when the prosecution faced none of those limits against a principal in the second degree. The next subsection takes up the principal-first rule, and the one after it covers the remaining technicalities of degree, venue, and pleading.

The Principal-First Rule

At common law a court could not convict an accessory unless a court had already convicted the principal.⁶ The label for this requirement is the principal-first rule, and the principal it refers to is the principal in the first degree, the person who actually committed the felony.⁷ The rule follows from how an accessory's guilt is built. An accessory is guilty of a felony that someone else committed, so the accessory's case depends on proof that the felony occurred, and the common law treated the principal's conviction as the way to establish that fact. Until a court had found that the principal committed the felony, there was no established crime to which the accessory could be tied. The effects appear most clearly in how separate and joint trials were conducted.

In separate trials the rule controlled the order of proceedings. An accessory could not be tried before the principal without the accessory's own consent.⁸ Even when the accessory consented and was convicted, the court had to postpone judgment until the principal's trial, because a later acquittal of the principal would annul the accessory's conviction.⁹ A joint trial was the one setting in which the accessory could be convicted without a prior conviction of the principal, and there the rule became a fixed order of decision inside a single proceeding. The principal and accessory could be tried together unless the accessory was entitled to a severance, and the jury had to inquire into the principal's guilt first. If it found the principal not guilty, it had to acquit the accessory, and only after finding the principal guilty could it consider whether the accessory was guilty.¹⁰

The dependence reaches well beyond trial order. Because the accessory's conviction rested on the principal's, anything that kept the principal from being convicted also freed the accessory, whatever the strength of the evidence against the accessory. The events that produced that result were these:

• If the principal escaped, was never identified, or otherwise never came to trial, there was no conviction to build on, and the accessory could not be tried.¹¹
• If the principal died or was pardoned before conviction, the accessory went free even though the accessory's guilt might be well known and easy to prove.¹²
• If the principal was acquitted, the acquittal barred any later trial of the accessory.¹³
• If both were convicted but the principal's conviction was later reversed, the accessory's conviction could not stand.¹⁴

These results were severe for the prosecution, and the rule that produced them has two sources. The first is the derivative structure already described: a rule that ties the accessory to the principal's conviction leaves no room to convict the accessory alone. The second is historical. Originally every principal and accessory was a felon and so was punishable with death.¹⁵ In State v. Ward the Maryland Court of Appeals described the technical rules that grew up around the classification as not altogether logical, operating to the advantage of the accused and the detriment of the prosecution by shielding accessories from punishment despite overwhelming evidence of their assistance.¹⁶ The cost fell hardest on the accessory before the fact, who is frequently the planner of the whole operation, because the person with the greatest responsibility went free whenever the person who carried out the plan escaped, died, or was acquitted, and that result is a principal reason most jurisdictions reject the rule today.¹⁷

The rule attached to the accessory label, and the principal in the second degree did not carry it. A second-degree principal could be tried and convicted before the first-degree principal, or even after the first-degree principal had been tried and acquitted.¹⁸ The common law had moved the person present at the scene out of the accessorial group and into the principals at a relatively early time, which is why the procedural protection stayed with accessories alone.¹⁹ Presence at the scene, actual or constructive, was therefore the fact that decided which procedural rules applied to a helper.²⁰ A frequent mistake is to extend the bar to a principal in the second degree, whose trial never waited on the verdict against the perpetrator.

The same dependence reached the accessory after the fact. Because the original view treated a person who helped a felon avoid justice as an accomplice in the felony, the accessory after the fact could not be tried until the principal had been found guilty, and so was immune if the principal was acquitted or was never prosecuted because of death or escape.²¹ Most jurisdictions now require only that the fact of the completed felony be proved at the trial of the accessory after the fact.²²

Most modern jurisdictions have dropped the principal-first rule for accessories generally, and only a handful of states retain it.²³ Maryland's statute, for example, allows an accessory before the fact to be charged, tried, convicted, and sentenced whether or not the principal was charged, acquitted, or convicted of a lesser or different crime.²⁴ Even where the rule is gone, the prosecution must still prove that some principal committed the crime, since there can be no accessory without a felony.²⁵ The remaining technical rules, which concern degree, venue, and pleading, are taken up next.

Degree, Venue, and Pleading Rules

The principal-first rule was the most consequential protection the common law gave accessories, but three further technicalities pulled in the same direction. One limited the grade of crime of which a party could be convicted, one limited the place where a party could be prosecuted, and one required the charge to match the status the proof established. Each pressed hardest on accessories, and all three rest on a single purpose that is easiest to see once the rules themselves are laid out.

The grade-of-crime rule comes first. An accessory could not be convicted of a higher crime than the principal.²⁸ The ceiling follows from the derivative character of an accessory's guilt. The accessory answers for a felony that someone else committed, so the felony the principal is found to have committed marks the most the accessory can be held for. A principal in the second degree stands differently, because that party is guilty through aid given in the presence of the crime, and the common law allowed a second-degree principal to be convicted of a higher crime or a lower crime than the principal in the first degree.²⁹ The person at the scene is treated as a participant in the act itself, so the jury weighs that participant's own culpability and is not bound by the verdict against the perpetrator.

The venue rule fixed the place of prosecution. A party to a crime had to be tried in the jurisdiction where the aid occurred, so an accessory could be prosecuted only where the accessorial acts took place.³⁰ The rule bit when the accessory's acts and the felony fell in different counties. Ancient law did not allow the indictment of an accessory whose actions occurred in one county while the underlying felony took place in another, so the county that had the felony and the principal before it could not reach the accessory.³¹ Where the accessory helped in the same county in which the felony occurred, the two places coincided and the limit created no gap. That limitation was later changed by statute in some places, and statutes now address venue directly.³² Maryland's statute on accessories before the fact, for example, covers crimes committed in the state and permits trial in a county where an act of accessoryship was committed.³³

The pleading rule required the charge to match the proof. A person charged as one type of party could not be convicted as another, so a defendant charged as an accessory could not be convicted as a principal, and a defendant charged as a principal could not be convicted as an accessory.³⁴ The rule turns the choice of label into a wager on a fact, and the fact is presence at the scene, which separates the categories. A prosecutor who charges a principal in the second degree is betting that the proof will show presence, actual or constructive, and a prosecutor who charges an accessory before the fact is betting on absence. In the Maryland case involving the respondent Sowell, witnesses described him as the mastermind of an armed robbery of a recycling company's office. He had planned it, kept a map of the premises, and set the hour, and shortly before the robbery he drove up to the men waiting in parked cars, told them to go ahead, and drove away to run his route and meet them later to split the money.³⁵ The State had tried him only as a principal in the second degree, which requires presence. The court held that this conduct made him an accessory before the fact but not a person actually or constructively present, and it reversed his convictions.³⁶ The court accepted that the evidence tended to show he planned the crimes from beginning to end, yet the label in the charge decided the case, because proof of absence could not sustain a charge that required presence. Modern statutes removed this trap in most states by allowing the prosecutor to charge the substantive crime the principal committed, a change taken up in the next section.³⁷

These three rules, together with the principal-first rule, share a purpose. At early common law every felony was punishable by death, which gave judges a reason to look for ways to narrow the number of convictions, and the rule that a person charged as one type of party could not be convicted as another was one device used to reduce executions.³⁸ The venue limit reduced convictions in the same way, since it kept an accessory beyond the reach of the county where the felony was tried.³⁹ Each rule gave the secondary participant, above all the accessory, one more way out, and together they operated to the advantage of the accused and the detriment of the prosecution.⁴⁰

The same purpose explains where the rules did not apply. In treason, all four categories were treated as principals, and in misdemeanors, all parties except the accessory after the fact were treated as principals, while the accessory after the fact was not punishable at all.⁴¹ Where everyone who helped before or during the offense is a principal, there is no accessory to protect, so the degree ceiling, the venue limit, and the charge-matching rule have nothing to attach to. A misdemeanor also carried a light penalty, which left little reason to build a shield around its participants. The accessory's protections therefore belonged to felony prosecutions, where the stakes were gravest.