Accomplice Mens Rea and Actus Reus

As with all other crimes, the prosecution must prove that the defendant committed an actus reus and had the requisite mens rea in order to obtain a conviction for acting as an accomplice. In order to obtain a conviction of a defendant for being a principal or an accessory before the fact, the prosecution must prove that the defendant committed an act that either encouraged or actually helped the criminal, that he had the requisite intent of encouraging or helping the criminal, and that the criminal who was encouraged or assisted by the defendant actually committed the crime. See United States v. Peoni, 100 F.2d 401 (2d Cir. 1938).

In order to demonstrate that the defendant committed the requisite actus reus, the prosecution must show that the defendant either directly or indirectly encouraged or facilitated the commission of the crime. A person has facilitated a commission of the crime if he provides the criminal with the means that the criminal uses to commit the crime. For example:

EXAMPLE (1): Enraged that Betty has married her ex-husband, Wilma hatches a plot to kill Betty. Wilma tells Barney of her plan, and Barney agrees to help. Wilma arms herself with a baseball bat and hides behind some bushes in front of Betty’s house. Barney then lures Betty out of her house. Once Betty emerges, Wilma attacks Betty and kills her with the baseball bat. In this situation, Barney has committed an act necessary for accomplice liability to attach because he has assisted in the commission of the crime.

EXAMPLE (2): Enraged that Betty has married her ex-husband, Wilma hatches a plan to kill Betty. Wilma tells Barney of her plans, and Barney agrees to lend Wilma his nine millimeter Beretta handgun. Wilma takes the gun and hides behind some bushes in front of Betty’s house. When Betty emerges, Wilma shoots and kills Betty. In this situation, Barney has facilitated the commission of the crime, because he has provided Wilma with the weapon she used to kill Betty.

Please note that a defendant can be convicted as an accomplice even if his assistance in the commission of the crime was not necessary. In other words, in the above example, Barney can be convicted as an accomplice even if Wilma did not need him to lure Betty out of her house or lend her his gun. Additionally, the defendant can be convicted as an accomplice even if the criminal himself is unaware that the accomplice is helping him. For example:

Enraged that Betty has married her ex-husband, Wilma hatches a plot to kill Betty. Barney finds out about Wilma’s plan and decides to help. Without telling Wilma, Barney goes to Betty’s house and hides in some bushes. When Barney sees Wilma approaching, he comes out from behind the bushes, walks up to Betty’s door and rings the bell. In order to lure Betty out of the house, Barney tells Betty that the lights in her car are on and   that she had better come out and shut them off before her battery dies. As Betty emerges from her house, Wilma opens fire and kills her. In this situation, even though Wilma did not know that Barney was trying to help her by luring Betty out of the house, Barney can be convicted as an accomplice. See State v. Lord, 84 P.2d 80 (N.M. 1938).

Inciting a crime (also a basis for accomplice liability) essentially means giving the criminal verbal encouragement. Encouragement, even if it is not accompanied by any actual physical assistance, is enough to warrant criminal liability as an accomplice. See Hicks v. United States, 150 U.S. 442 (1893). However, no accomplice liability will attach if the criminal himself is not aware of the encouragement that the accomplice has given him. In other words, a person who encourages the commission of a crime can only be convicted as an accomplice if the criminal is actually aware of the encouragement being provided to him. Please note that simply being at the scene of the crime at the time it is being committed is not considered encouragement that warrants criminal liability. However, if the accomplice and the criminal agree that the accomplice will go to the scene of the crime just in case the criminal needs his help, showing up at the scene of the crime can be considered adequate encouragement. See Evans v. State, 643 So. 2d 1204 (Fla. 1994).

In determining the mens rea necessary for accomplice liability, two issues must be dealt with: First, whether or not the accomplice must have the mens rea to commit the actual crime that is being committed by the principal, and second, whether the accomplice must also intend for his or her actions to actually help or encourage the principal in the completion of the crime.

As far as the first issue is concerned, the general rule is that the accomplice must have the mens rea necessary to actually commit the crime by direct action. In other words, the accomplice must have the same mens rea that is required on the part of the actual perpetrator of the crime. For example:

Marge and Homer devise a plan to rob the First National Bank of Springfield. Homer actually goes into the bank and carries out the robbery while Marge drives the getaway car. Both Homer’s and Marge’s intent is to forcibly take money from the bank, thus depriving the bank permanently of that money. In this situation, Marge has the requisite mens rea, because the mens rea that she has is the same that is required on Homer's part, the actual perpetrator of the crime. If, however, Marge had only pretended to go along with the plan, all the while intending to drive Homer straight to the police station after he committed the robbery, she could not be convicted as an accomplice to the robbery because she lacked the required mens rea.

As far as whether or not a person must intend for his actions to either assist or encourage the commission of a crime, there is a split among jurisdictions. Some jurisdictions require the prosecutor to prove that the accomplice acted with the desire that his or her actions either assist in or encourage the commission of the crime. Other jurisdictions only require the prosecutor to show that the accomplice knew that his actions would either assist or encourage the commission of a crime. The difference is that, in jurisdictions that require the prosecution to prove only that the accomplice acted while knowing that his actions would aid or encourage the commission of a crime, the accomplice can be convicted even if he did not actually want his actions to aid or encourage the commission of a crime. In these jurisdictions, even if the accomplice was dead-set against his actions being used to encourage or aid in the commission of a crime and even if he did not intend for his actions to aid or encourage the commission of the crime, so long as he knew that his actions would aid or encourage the commission of a crime, he can be convicted as an accomplice. In the other jurisdictions this could not happen because the prosecution must prove that the accomplice acted with the actual desire to aid or encourage the commission of a crime.

As we said before, at common law, a person could be convicted as an accomplice only if the actual perpetrator of the crime was convicted. See Patton v. State, 136 S.W. 459 (Tex. 1911). Under modern statutes, however, an accomplice can be convicted even if the perpetrator of the crime is not. However, the prosecution must prove the perpetrator’s guilt during the trial of the accomplice in order to obtain a conviction against the accomplice. See Miller v. People, 55 P.2d 320 (Colo. 1936). For example:

Homer is tried for the robbery of the First National Bank of Springfield, and Marge is tried together with Homer as an accomplice to the crime. In this situation, in order to win a conviction against Marge as an accomplice, the prosecution must prove Homer’s guilt. In other words, if the jury comes back with a not-guilty verdict for Homer, they must also come back with a not-guilty verdict for Marge. However, if the prosecution proves Homer’s guilt but Homer is acquitted on a technicality, Marge can be convicted as an accomplice even though Homer has been acquitted.

Please note that even if the crime is never completed, there may be other crimes such as attempt or conspiracy that the principal and the accomplice can be convicted of.