Parties to Crime & Vicarious Liability the sometimes surprising reach of the criminal law

Liability for someone else’s crimes We can be held responsible for the misdeeds of another in two ways Complicity – we are responsible for the actions of another, or by Vicarious liability – when the relationship between two people makes one responsible for the other

Basic Terms Complicity – imposing liability on accomplices and accessories for something someone else did Accomplices – participating before or during a crime Accessories – participating after the underlying crime has taken place

Rationales for Extending Liability Two justifications for extending liability Agency Theory – when we participate in a criminal act, we should be held responsible, we willingly chose to join in, after all Forfeited Identity Theory – when we play along, we give up (forfeit) our identity and become responsible for the activity of others

Accomplices v Accessories Aiding a criminal after the crime has been committed provides a big advantage to accessories They are typically charged with a misdemeanor Accomplices, however, are punished as if they had committed the crime themselves, even for felonies and capitol offenses

Accomplice v Conspiritor Distinguish from co-conspirators Conspiracy involves an agreement to commit another crime – it’s a lesser, separate, crime than, say, murder An accomplice to murder is charged with murder itself You could be charged with both, of course – the Pinkerton Rule

What’s the Actus Rea? We require some sort of voluntary act (actus rea), what would that be to establish accomplice liability? Providing a gun Serving as a lookout Driving a get away car Leading victim to killer Preventing warnings Even words – encouragement – can suffice

Is just being there enough? Nope, there must be more. Mere presence rule – being at the scene, even running away, isn’t enough for responsibility The law realized that even innocent people run away from a crime, for valid reasons However, if someone has a legal duty to act, you can be held liable, if you were just there without doing anything

What’s the mens rea? It’s easy when the accomplice seeks to gain from the crime. But in other situations, it’s not so clear. What if we act knowingly, but without any intent to gain from the crime? Some say knowingly is enough but others, including famous Judge Learned Hand, say it isn’t – U.S. v Peoni – need much more for criminal liability

Accessories Participating after the crime was committed In the common law they were as guilty as an accomplice Modern laws recognize a big difference between the two Known as “obstructing justice”, “interfering with prosecution”, etc.

Common elements re Accessories Most accessory statutes have four elements: 1) Personal assistance to the person who committed the crime, (actus rea) 2) knowledge that a felony had been committed, (mens rea) 3) intent to hinder prosecution (mens rea), 4) someone else did the dirty deed.

Vicarious Liability Criminal liability for the acts of another. No need for either mens rea or actus rea. They are transferred from the perpetrator. You are liable due to your relationship eith the perpetrator. Most arise from business relationships: employer-employee, corporation-manager, etc.

Corporate Liability Long history in the common law. Initially set-up to encourage investment by reducing risk. Controlled by federal law. Despite the desire for self-regulation, the 2008 sub-prime lending crisis provided another reminder that it’s just not enough.

Respondeat Superior A concept from tort (civil) law that, in some circumstances, an employer (master) can be held responsible for the actions of its employee (servant) From the Latin – “ let the master answer”. Recognizes that punishing the employee is not enough to effectively deter the behavior – the employer will just hire someone else to do it.

U.S. v. Arthur Anderson Huge, powerful accounting firm failed to properly audit energy transporter to energy speculator Enron Worse yet, AA purposefully destroyed hundreds of documents detailing Enron’s misdeeds. After Enron’s spectacular collapse, the feds criminally charged AA and won at trial. AA devastated.

State v Zeta Chi Fraternity Little guys can get stung too. University of New Hampshire frat throws wild “rush” party. Strippers hired; revelers encouraged to shower women with $$ - the more the happier everyone would be. Lots of fun follows. Also, underage guys find booze.

Zeta Chi aftermath Frat charged with Illegal Sale of Alcohol & Prostitution Court holds that corp can be held for actions of its agents acting within the scope of their actual or apparent authority Enough evidence to support both charges Turning to mens rea, corp held responsible for the cumulative knowledge (recklessness) of its agents

Holding Individuals Responsible for the Act of Another Can the state hold the owner of a convenience store if one of his employees sells booze to a minor? Even without any knowledge? Waukesha v Boehnen Yes – strict liability crimes fall within the proper exercise of legislative power – especially for alcohol related offenses.

To the contrary … Can parents be found liable if their kids improperly operate snowmobiles? State v Akers New Hampshire Supremes hold that it’s unconstitutional to hold someone criminally responsible solely for a status – being parents. Differs from employer-employee relationship. Parent-child relationship is special.