Unit 29: Complicity II
Dressler 447-461 (stop before 30.07)
natural and probable consequences doctrine
Accomplice liability requires two distinct mens rea: (1) the accomplice must intend to assist the principal in conduct that constitutes the crime, and (2) the accomplice must possess the mens rea required in the statute as to the result of the offense. For the first intent, a majority of jurisdictions require purpose, although purpose can sometimes be inferred from knowledge (as in Lauria). For the second intent, some courts used to hold that one could not be an accomplice to a crime that required only negligence or recklessness for the mens rea. Today, however, a majority of jurisdictions allow one to be guilty as an accomplice, so long as the requisite negligent or reckless mens rea as to the result is met.
There is not much case law on what mens rea as to the attendant circumstances is required. Dressler suggests that mens rea policies controlling the substantive offense should control accomplice liability, and the mens rea required in the statute as to the attendant circumstances should apply to accomplices as well. For example, an attendant circumstance of statutory rape is the victim’s age, which is strict liability for the principal. Therefore, Dressler would find that the accomplice’s knowledge of the victim’s age would be irrelevant, since knowledge of the victim’s age would also be strict liability for the accomplice.
A majority of jurisdictions today also follow the natural and probable consequences doctrine. An accomplice is not only liable for the offense that she intends to aid and abet, but also for any other crime that is a natural and probable consequence of the crime that the accomplice intends to assist. To determine if the natural and probable consequences apply, courts generally apply four steps: (1) the principal must commit an offense, (2) the accomplice must intend to aid the target offense, (3) the principal must commit other crimes besides the target offense, and (4) the other crimes must be a reasonably foreseeable consequence of the original criminal acts which the accomplice assisted the principal in committing. Ten states reject the natural and probable consequences doctrine, for allowing an accomplice to be convicted of a crime with a lesser degree of mens rea than is required by the principal.
Liability of the Accomplice in Relation to the Principal
Since accomplice liability is derivative in nature, there must be a principal for the accomplice to be guilty. However, the prosecution need not identify a specific person as the principal. In theory, if the jury does not believe an offense occurred at all, and therefore acquits the principal, the accomplice should be acquitted as well. However, juries do not often specify the reason for their verdicts. A reviewing court will not be able to distinguish between an acquittal based on an excuse, lack of mens rea, or mistaken identity, and an acquittal based on no offense occurring. Because courts are hesitant to investigate the reasoning behind a jury’s verdict, accomplices are not often acquitted on the basis of the principal’s acquittal.
If a principal is acquitted on the basis of a justification defense (see Unit 31), then the accomplice should be acquitted as well, since the acts that occurred were not morally wrong or even criminal in the eyes of the law. If the principal is acquitted on the basis of an excuse defense, then the accomplice should not be acquitted on that basis, because a crime still occurred, and the excuse that applies to the principal does not necessarily apply to the accomplice.
If a principal is acquitted because he lacks mens rea, then a crime did not occur in the most common definition of the word, since a crime consists of both an act and a mental component. Some scholars argue that since accomplice liability is derivative, an accomplice should not be liable when the principal lacked mens rea and therefore committed no offense. Other scholars argue that the principal’s lack of mens rea can be viewed as an excuse, and the principal’s act combined with the accomplice’s mens rea constitutes a crime, and therefore the accomplice should be liable.
An accomplice can be convicted of a lesser offense than the principal if the accomplice possesses a lesser mens rea than the principal. An accomplice can be convicted of a greater homicide offense than the principal, since the difference in the degrees of homicide depend solely on mens rea, with the same harm (wrongful death) occurring in each instance of homicide. It is unclear if an accomplice can be convicted of a greater offense than the principal in instances other than homicide.
Some scholars argue that if the difference in degrees of an offense is based solely on mens rea, then the same analysis as homicide should apply. For example, in the English case Regina v. Richards, a woman asked a man to severely beat her husband. The man committed the lesser offense of “unlawful wounding,” which required the intent to cause physical injury. Some scholars (and the court on appeal) argue that the woman as the accomplice should be convicted of the greater offense of “unlawful wounding with the intent to commit grievous bodily harm,” since she wanted the accomplice to commit grievous bodily harm.
Other scholars (including Dressler) advocate that homicide is inherently different than other offenses separated in degrees by mens rea. The social harm of homicide is always wrongful death, no matter the mens rea of the principal. However, with other offenses, the social harm depends on the mens rea of the principal, and therefore an accomplice should not be convicted of a greater offense than the principal. For example, in Regina v. Richards, the crime (and social harm) that occurred was unlawful wounding, not unlawful wounding with the intent to cause grievous bodily harm. The woman as an accomplice should not be convicted of a crime that did not occur.
Questions for Review:
Q1. Zack plans to burn down his house while his wife and children are inside sleeping. Zack asks Ruby for help in burning down the house in exchange for a cut of the insurance proceeds. He assures her that nobody will be inside. Ruby agrees and helps Zack burn down the house, and his wife and children die. Zack is found guilty of first degree murder. What is Ruby’s liability as to the deaths?
Q2. Same facts as above, but instead of finding Zack guilty of first degree murder, the jury finds Zack is excused by reason of insanity. What is Ruby’s liability as to the deaths?
Q3. As a policy matter, do you think the natural and probable consequences doctrine should be followed? Why or why not?