CRIMINAL LAW 1. Ahmed T. Ghandour.

INCHOATE OFFENCES AND COMPLICITY.

WHAT IS COMPLICITY OR ACCOMPLICE LIABILITY?

 Complicity is the act of helping or encouraging another individual to commit a crime. It is also commonly referred to as aiding and abetting. One who is complicit is said to be an accomplice. But, even though an accomplice does not actually commit the crime, his or her actions helped someone in the commission of the crime.  The concept of accomplice liability means an accomplice faces the same degree of guilt and punishment as the individual who committed the crime. Indeed, accomplices can face the same penalties, including prison time. The key consideration is whether the individual intentionally and voluntarily encouraged or assisted in the commission of the crime, or (in some cases) failed to prevent it.

IN A COMMON LAW.  actors were classified as principals and/or accessories.  Principals were persons who were present at the scene of the crime and participated in its commission.  Accessories were persons who were not present during the commission of the crime but who aided, counseled, procured, commanded, encouraged or protected the principals before or after the crime was committed.  Both categories of actors were further subdivided. Principals in the first degree were persons who with the requisite state of mind committed the criminal acts that constituted the criminal offense.  Principals in the second degree, also referred to as aiders and abettors, were persons who were present at the scene of the crime and provided aid or encouragement to the principal in the first degree.

 Accessories were divided into accessories before the fact and accessories after the fact.  An accessory before the fact was a person who aided, encouraged or assisted the principals in the planning and preparation of the crime but was absent when the crime was committed.  An accessory after the fact was a person who knowingly provided assistance to the principals in avoiding arrest and prosecution. It was eventually recognised that the accessory after the fact, by virtue of his involvement only after the felony was completed, was not truly an accomplice in the felony

TYPES OF ASSISTANCE.  To be deemed an accomplice, a person must assist in the commission of the crime by "aiding, counseling, commanding or encouraging" the principal in the commission of the criminal offense.  Assistance can be either physical or psychological.  Physical assistance includes actual help in committing the crime as long as the acts of assistance do not constitute an element of the offense. It also includes such things as procuring weapons to be used to commit the crime, or serving as a lookout during the commission of the crime or providing protection from arrest or prosecution after the crime’s commission.  Psychological assistance includes encouraging the principal to commit the offense through words or gestures or mere presence as long as the principal knows that the accomplice purpose is present to provide assistance.  It is not necessary that the accomplice's acts cause or contribute to the principal's committing the crime. In other words the prosecution need not prove that the accomplice's acts were either a proximate cause or cause in fact of the crime.  The prosecution must show that the defendant provided assistance, and intended to assist the perpetrator. While substantial activity is not required, neither mere presence at the scene of the crime nor even knowledge that a crime is about to be committed count as sufficient for accessorial liability

JOINT PARTICIPATION AND ASSISTANCE.  Two or more persons may act as principals in the first or second degree or as accessories. For example, one person may hold a gun on the clerk of a convenience store while a second person takes the money from the cash register during a robbery. Both actors are principals in the first degree since each does an act that constitutes the crime and each acts with the necessary criminal intent (to steal). Even though neither did all the acts that constitute the crime under the theory of joint participation or acting in concert the law treats them as partners in crime who have joined together for the common purpose of committing the crime of robbery and each is held responsible for the acts of the other in the commission of the object offense.

ELEMENTS OF ACCOMPLICE LIABILITY.  With some variations, depending on the state, a prosecutor must be able to prove the following four elements in order to convict someone for being an accomplice or aiding and abetting:  A crime was committed by another individual;  The defendant "aided, counseled, commanded, or encouraged" the other person in the commission of the crime.  The defendant acted with the requisite mental state in their jurisdiction, for example, knowingly or purposefully, to assist in the crime.

MENS REA - A DEFENDANT'S MENTAL STATE.  Most crimes require what attorneys refer to as "mens rea", which is simply Latin for a "guilty mind". In other words, what a defendant was thinking and what the defendant intended when the crime was committed matters. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime

 To give an example, imagine two drivers who end up hitting and killing a pedestrian. Driver 1 never saw the person until it was too late, tried his or her best to brake, but could do nothing to stop the accident and in fact ended up killing the pedestrian. Driver 1 is still liable, but likely only in civil court for monetary damages.  Driver 2, on the other hand, had been out looking for the pedestrian and upon seeing him, steered towards him, hit the gas pedal and slammed into him, killing him instantly. Driver 2 is probably criminally liable because he intended to kill the pedestrian, or at least he intended to cause serious bodily harm. Even though the pedestrian is killed in both scenarios (the outcome is the same), the intent of both drivers was very different and their punishments will be substantially different as a result.

CARELESS VERSUS CRIMINAL.  Carelessness is generally referred to as "negligence" in legal terminology, and generally results in only civil, not criminal, liability. However, at some point general carelessness turns into something more culpable, and some criminal statutes have heightened negligence standards such as criminal or reckless negligence. For example, it may be simple negligence to leave items out on your sidewalk that cause a neighbor to fall and hurt themselves. It may be more than simple negligence, however, if you left out a chainsaw, some knives and flammable material on your sidewalk, resulting in your neighbor's serious injury.

INTENTIONAL VERSUS UNINTENTIONAL.  Intentional harmful behavior is often criminal, but unintentional harmful behavior comes in two basic forms. The first is "mistake in fact" and the second is "mistake of law".  Mistake in fact means that, although your behavior fit the definition of a crime in an objective sense - you sold illegal drugs for instance - you were unaware that what you were selling was in fact an illegal drug. For example, if you gave someone a bag full of white powder in return for some money and honestly thought it was baking soda, then you are mistaken as to a fact that is critical to the crime. As a result, you likely lack the necessary mens rea or mental intent necessary under a drug law, because you never intended to sell an illegal drug, you intended to sell baking soda (note that almost no one will believe you honestly thought baking soda could be sold for that much money).

 Mistake of law however, will almost never save you from criminal liability. Almost everyone is familiar with the phrase that "ignorance of the law is no excuse", and that's exactly how the law sees it. Perhaps in the above example, you did know that what you were selling was cocaine, but you honestly thought that it was legal to do so. It doesn't matter. It may seem slightly unfair that the person who was essentially dumb enough to believe that the white powder was baking soda gets off, but the well intentioned person who honestly thought it was legal to sell cocaine doesn't get off. The justification for having no tolerance for ignorance of the law is that allowing ignorance of the law as a defense would discourage people from learning the law and seriously undermine the effectiveness of the legal system.

STRICT LIABILITY NO MENS REA REQUIRED.  Many criminal laws require a person to "knowingly" engage in illegal activity. Which part of the offense needs to be done knowingly depends on the crime. For example, a drug trafficking law might require that the person "knowingly" import an illegal drug into the United States. If the defendant had been given a gift to deliver to someone in the U.S., and the defendant honestly did not know that the gift contained an illegal drug, then the necessary mens rea has not been established and no crime was committed.

COMMITTING A CRIME "MALICIOUSLY" OR "WILLFULLY“.  Some criminal laws use the term malicious and willful to describe the necessary conduct. Generally, this adds nothing that isn't already covered by intentionally and knowingly. However, in some murder statutes it is a "heightened" form of intentionally/knowingly, and will result in a higher degree murder charge. The difference being that it is one thing to get mad at someone and kill them in passion, but it's quite another thing to devise an elaborate plan to stalk and kill a victim.  Despite the nearly iron-clad rule that ignorance of the law is no excuse, sometimes "willfully" has been interpreted as knowing that it is illegal and doing it anyways (which requires knowledge of the law that it was illegal in the first place).

COMMITTING A CRIME WITH THE "SPECIFIC INTENT“.  Specific intent crimes are crimes where an act has to be accompanied by a particular intent to do something and are often written as "[performed some physical act] with the intent to". An easy to understand example of this is theft.  Most theft statutes require that you not only take some object (the physical act), but that you take it with the intent to "permanently deprive" the rightful owner of that object. For example, imagine that you took your friends pair of sunglasses for the day, but you did so with the intent to give them back later that afternoon. You had no right to take those glasses, they belong to your friend, but what you did wasn't theft because you never had the intention of permanently keeping the sunglasses.

WHY MOTIVE MATTERS.  Motive is an indirect way to prove that something was done intentionally or knowingly. For example, a defendant in an assault case may claim that he punched the victim by accident and thus didn't have the necessary intent for an assault (i.e., an intent to cause bodily harm). If the prosecution, however, can demonstrate that the defendant and victim had been arguing shortly before the alleged assault, that motive can serve as circumstantial evidence that a defendant really did mean to punch the victim. Alternatively, defendants can use the prosecution's lack of evidence of a motive as a "reasonable doubt" to avoid criminal liability.

EXAMPLES OF COMPLICITY.  The following examples illustrate the many ways an individual may be an accomplice to a criminal act:  Serving as the getaway driver in a bank robbery.  Turning off the alarm system of a jewelry store in which you work, knowing that it will be robbed later that evening.  Loaning a handgun to someone who you know is planning to commit a crime.  Directing a vehicle to a dead-end street where you know an armed carjacker is waiting.

LIABILITY OF ACCOMPLICES FOR UNINTENDED CRIMES.  Questions arise as to the liability of accomplices for unintended crimes committed by a co-actor, such as whether a getaway driver outside of a building should be responsible for a shooting carried out by an accomplice inside. Most jurisdictions hold that accomplice liability applies not only to the contemplated crime but also any other criminal conduct that was reasonably foreseeable.

THE DIFFERENCE BETWEEN COMPLICITY AND CONSPIRACY.  When an individual takes on an active role in the planning of a crime, the crime may instead be one of conspiracy. A conspirator agrees with others to commit a future crime, while an accomplice assists, in some way, in the actual commission of a crime. Furthermore, unlike accomplices to a crime, conspirators can be guilty even if their plan is not completed.  Example: If a group of individuals gets together, agrees to plan and commit a robbery, and takes an overt action to accomplish their plan (e.g. purchasing a car, guns, and tools for the robbery), they could each be charged with the crime of conspiracy to commit robbery, even if the robbery never happens. However, if and when the planned robbery is committed by the individuals, they could be charged with both conspiracy and robbery (as principals or accomplices, depending on their role in the robbery).

CONSPIRATORIAL LIABILITY.  The conspirator could be held liable for crimes that they did not participate in or agree to or aid or abet or even know about. The basis of liability is negligence - the conspirator is responsible for any crime that were a foreseeable consequence of the original conspiratorial agreement.  With the exception of an accessory after the fact in most cases an accomplice is a co-conspirator with the actual perpetrator. For example, the person who agrees to drive the getaway car while his confederates actually rob the bank is principal in the second degree for purposes of accessorial liability and a co-conspirator for purposes of conspiratorial liability. However, many situations could arise where no conspiracy exists but the secondary party is still an accomplice. For example, the person in the crowd who encourages the batterer to "hit him again" is an aider and abettor but not a co-conspirator. As Dressler notes, the difference between the two forms of complicity is that with a conspiracy an agreement is sufficient and no assistance is necessary, whereas with accessorial liability no agreement is required but some form of assistance is necessary for liability

INNOCENT AGENCY.  The doctrine of innocent agency is a means by which the common law attaches criminal liability to a person who does not physically undertake some or all of the offence with which they are charged. A person acts through an innocent agent when they intentionally cause the external elements of the offence to be committed by a person who is themselves innocent by reason of lack of a required fault element, or lack of capacity.  A person who uses an innocent agent is subject to the same liability as if they were the one who committed the actus reus