Defenses to Accomplice Liability

There are several defenses that a person could use to defend against a charge of accomplice liability.

Withdrawal

The first defense is withdrawal. In a situation where someone has encouraged or assisted in the commission of a crime, he may be able to avoid a conviction by making an effective and timely withdrawal of his help or encouragement. In order for the withdrawal to be timely, it must occur before the chain of events leading up to the crime has progressed to the point where it is impossible to stop the commission of the crime. See People v. Brown, 186 N.E.2d 321 (Ill. 1962).

Aside from being timely, the withdrawal must also be effective. What that means will depend on what the accomplice did to aid the commission of the crime. If the accomplice only incited or encouraged the commission of the crime, he must communicate a renunciation of the crime to the perpetrator in order for his withdrawal to be considered effective. See Galan v. State, 184 N.E. 40 (Ohio 1932). For example:

Homer has devised a plot to rob the First National Bank of Springfield. However, he is unsure whether or not he should actually commit the crime. Marge launches into a diatribe about how the bank is a symbol of corporate greed and how Homer should teach them a lesson by stealing every penny they have. After hearing Marge’s speech, Homer decides to go through with his plan. However, on the morning of the robbery, Marge has a change of heart and begs Homer not to rob the bank. However, Homer goes through with the plan anyway. In this case, Marge can not be convicted as an accomplice because she communicated a renunciation of the crime to Homer, and, since her initial action only consisted of encouraging Homer, her communicating the renunciation made her withdrawal legally effective.

However, if the accomplice’s initial action involves actually assisting in the commission of the crime, a renunciation by itself will not be enough to effect a withdrawal. Rather, the accomplice must act to render ineffective whatever assistance he or she already gave. See Commonwealth v. Huber, 15 Pa. D.& C.2d 726 (1958). For example:

Homer has devised a plot to rob the First National Bank of Springfield. However, he is unsure whether or not he should actually commit the crime. Marge launches into a diatribe about how the bank is a symbol of corporate greed and how Homer should teach them a lesson by stealing every penny they have. Marge also gives Homer the keys to her car and tells him that he can use the car to drive to and from the bank. On the morning of the robbery, Marge has a change of heart and begs Homer not to go through with the robbery. However, Homer robs the bank anyway. In this situation Marge can be convicted as an accomplice, because even though she had a change of heart and communicated a renunciation of the crime to Homer, her renunciation by itself is not enough to be considered an effective withdrawal. Because Marge actually assisted Homer, she must do what she needs to do to make her assistance ineffective. In other words, in order to avoid accomplice liability, Marge would have to actually prevent Homer from using her car in the robbery.

According to the Model Penal Code, an accomplice can effectively withdraw and avoid criminal liability by doing one of three things:

1. Rendering his prior assistance to the perpetrator completely ineffective;
2. Providing the police with a timely warning of the perpetrator’s plan; or
3. Making a proper effort to prevent the perpetrator from committing the crime.

Please note that the accomplice does not have to successfully prevent the commission of the crime. As long as he makes a proper effort to prevent the commission of the crime, he can avoid criminal liability. Note the difference between withdrawing from a status of accomplice and withdrawing from an attempt or a conspiracy. A withdrawal from an attempt is only effective, as you'll recall, if the crime is actually prevented. Liability for conspiracy cannot be prevented even if there is a successful withdrawal. However, as we have discussed, a withdrawal from a status as an accomplice is somewhat easier than withdrawing from one of the mentioned inchoate offenses.

Inapplicability

The second defense to accomplice liability is inapplicability. In some situations and for some crimes, there simply is no such thing as accomplice liability.

First, if a criminal statute is established to protect persons in a particular category, a person within that category cannot be convicted as an accomplice. For example:

The State Legislature has recently passed a statute making it a criminal offense for any employer to hire an employee under the age of fourteen. In this situation, a twelve year old who willingly goes to work cannot be convicted as an accomplice (the employer, of course, in the principal who can be prosecuted under the statute) in the violation of this statute because the statute is created to protect people in his class. See Gebardi v. United States, 287 U.S. 112 (1932).

Second, the victim of a crime cannot be liable as an accomplice even if he participates willingly in the commission of the crime. For example:

Marge and Homer divorce and Marge wins sole custody of their three children, Bart, Lisa and Maggie. Homer feels that he should have custody over at least one of the kids, so he devises a plan to kidnap Bart and drive him to another state where Marge can’t find them. Bart would much rather live with is father than his mother anyway, and he happily goes along with Homer when Homer comes to get him. In this situation, Homer can still be convicted of kidnapping. However, Bart as the victim of the crime, cannot be convicted as an accomplice even though he willingly went along with Homer’s plan. See United States v. Southard, 700 F.2d 1 (1st Cir. 1983).

Explicit Provisions

Third, if a crime, by its nature, involves more than one person but explicitly provides for the guilt of only one of the participants, the other participants cannot be convicted as accomplices. For example:

The State Legislature has recently passed a law making it a criminal offense to sell homemade liquor. Ignoring the law, Homer brews a batch of homemade beer and sells it to Barney. In this case the crime of selling homemade alcohol, by definition, involves more than one person because you cannot sell anything without another person buying it. However, since the crime only calls for the liability for the seller, Homer can be convicted of breaking the law but Barney cannot be convicted as his accomplice. Barney could be convicted as an accomplice had he helped Homer brew and sell the beer, but he cannot be convicted as an accomplice simply for being the buyer.

Accessory After the Fact

Finally, let us turn our attention to the criminal liability of what the common law calls an accessory after the fact. Under the common law, an accessory after the fact was considered a party to the crime itself. However, there were three prerequisites that had to be met in order for a person to be convicted as an accessory after the fact. First, the perpetrator who the accessory assisted must have actually completed the commission of a felony. Second, the person accused of being an accessory after the fact must have known that the person he was helping had committed the felony. Third, the assistance that the accessory gave must have been given directly to the felon for the purposes of interfering with the enforcement of the law.

In today's day and age, treatment of accessories after the fact has changed somewhat. Some jurisdictions have retained the category of accessory after the fact, although they do not consider the accessory as a principal to the crime itself. Rather, being an accessory after the fact is usually considered a separate offense. However, many modern criminal codes have created a new offense called "obstruction of justice" or "hindering prosecution" which is defined as providing aid to others who may have committed an offense. Under these statutes, the prosecution does not have to prove that the person who the defendant tried to help actually committed a crime. Rather, it is enough that the defendant provided aid to another person who he thought had committed a crime with the purpose of interfering with the enforcement of the law.