Accomplice Liability Research Paper

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Accomplice liability rests on the premise that someone whom the law interchangeably calls an accomplice, accessory, aider and abettor, secondary party, or helper in the crime or crimes of his perpetrator, doer, or principal is derivatively liable for whatever crime or crimes the principal commits. Punishment for accomplice liability is shared equally among principals and their helpers. Proof of the helper’s liability is heavily mediated by the actions of the principal. If the principal commits a crime, the equal blame goes to the helper as well, provided that the crime that occurs is one the helper knew about and whose success the helper intended when he provided his assistance.

Accomplice liability’s legitimacy rests on its demand that the helper’s contribution be significant enough to justify his punishment, but not so significant, dominant, or manipulative as to wipe out altogether the responsibility of the principal. Someone who helps or tries to help someone else commit a crime exerts somewhere from no, to some, to too much constraint on his principal’s autonomy. Too much influence exerted by the accomplice does not produce a case of accomplice liability; rather, it produces a case of principal liability for the overreaching helper in his agent’s (or would-be principal’s) ‘‘innocent’’ wrongdoing. No influence, or perhaps more accurately, no attempt to influence or support the principal, does not produce a case of accomplice liability because the helper has not done enough to make him sufficiently caught-up or ‘‘causally’’ related to the principal’s crime. Neither is there a case of accomplice liability if the helper and the principal do not put themselves to the same task, either because the helper does not really care whether the principal succeeds in or even attempts a crime, or because the principal commits a crime or crimes that depart from, or are in excess of, the parties’ common scheme. Cases falling in between those cases where the helper does either too much or too little are what one could call ‘‘pure’’ or ‘‘core’’ cases of accomplice liability in which the helper: (1) exerts some (but not too much) influence on the principal; (2) intends that the principal succeed in the jointly intended criminal act; and (3) the principal does in fact at least generally perform as the helper expects him to.

Principal Liability: Too Much Influence Exerted by The Helper

Cases of principal liability on the part of a would-be helper arise when the would-be helper acts in a way that allows us to say that it is as though the helper commits the crime himself. Certainly one can perform an action by getting others to do it. We say, for example, ‘‘Louis XIV built Versailles,’’ even though the actual construction was not done by him. Indeed, we can think of cases where the principal is not a principal at all, but is simply, perhaps metaphorically, a tool, instrument, or means of someone else. Examples of such cases include cases where someone occupying what would otherwise be the position of the helper recruits a lunatic or a child to do the deed or tricks, forces, or even hypnotizes someone occupying what would otherwise be the position of the principal. These cases involve such coercion or manipulation of susceptible parties that the manipulated or coerced party’s act is fishy enough for him to be called ‘‘not responsible’’ or for his act to be judged ‘‘not his own.’’ Thus courts tend to reject the notion that providing a gun to a lunatic (the gunprovider being unaware of the lunatic’s incapacity) to use to assault someone somehow makes the assault the gun-provider’s and not the gunwielding lunatic’s. For one person’s act to be wholly someone else’s, the person to whom we attribute the act must act in a way that shows he sees his act as such; one cannot, after all, use someone else inadvertently. Were, for example, a ringleader to pay a safecracker to steal some jewels from a vault for a share of the profits, it is not as though the ringleader sees himself cracking the safe and stealing the jewels—he sees the safecracker doing it. The only evidence of his seeing himself doing it would be his placing such constraints on the safecracker’s autonomy that it ceases to be the safecracker’s intentional, purposeful, or deliberate act. Thus if the ringleader were to force the safecracker to crack the safe by putting a gun to his head or were he to trick the safecracker into believing that the safe and its contents really are the property of the ringleader, then the ringleader steals the jewels through the safecracker. In such a case, the ringleader would be the principal thief and not a helper at all, and the safecracker, who is seemingly the principal thief, would not be held responsible for his actions; instead, he would be viewed as an innocent means or instrument of the manipulative ringleader.

It is likewise an instance of principal as opposed to accomplice liability where A hands B a package into which A has secretly put a bomb for delivery to a victim A has in mind, or where A places B under duress by threatening B with a greater harm if B does not act on A’s behalf than if B does. There A acts through B by seeing B not as a killer, but as an innocent dupe—a giant fuse, if you will. A sees himself killing the victim by manipulating or forcing B into doing A’s dirty work for him. A harder case to classify is one in which a malicious felon places an innocent person or a police officer in circumstances where it is the innocent’s right or the officer’s duty to apply deadly force to repel the felon’s threat of force, and the innocent or officer kills someone other than the malicious felon. In such cases the felon does not act through the innocent or officer because missing is the malicious felon’s intention to use the killer. The felon’s intention is likely that no such encounter materialize, except in so-called shield cases (where a third party is used by escaping suspects or those under siege as a shield against police gunfire), or in cases where one felon sends an innocent or confederate outside to a certain death in order to facilitate the malicious felon’s escape. With such a bad intention and excessive risk at play, it is easy to see how in those cases we may conclude that the felon acts through the killer to deflect the justified use of deadly force away from the felon and toward another target.

When we are faced with questions of whether a would-be helper has manipulated the would-be principal to the point that the would-be principal’s responsibility is wiped out altogether, the would-be helper/manipulator’s conception of his own liability does not inhibit his conviction as principal. This is because the idea of ‘‘innocent agency’’ or ‘‘perpetration by means’’ is linked only to those cases where the principal intends to pursue an objective through the manipulative use of an agent. In other words, perpetrating harm through another is a narrower category of action than is causing another to do something harmful. Causing another to do something harmful, unlike perpetrating harm through another, is indifferent to whether the originating actor (whom we are considering treating as a manipulator) intends to reduce someone else to his influence or control. In other words, causing can be mechanical whereas using cannot. Accordingly, the ringleader who recruits an insane safecracker—not knowing of the safecracker’s affliction—may in some important sense cause the ensuing theft, but does not commit the theft through the insane thief. Missing there is the ringleader’s intent to use, manipulate, or otherwise act through the safecracker. When, however, the harmful act is orchestrated by a user or manipulator who is counting on the agent’s susceptibility, incapacity, or lack of responsibility, the idea of innocent agency or perpetration-bymeans describes cases where the manipulated agent is a lunatic, a child, someone duped as to material facts, or anyone who cannot choose what is good and right due to coercion or any other constraint on the innocent agent that is known to the dominant party. In such cases it makes no difference whether the harm is committed by lying, stealing, frightening, shooting, stabbing, or nonconsensual intercourse (as in an infamous British case in which a husband misled an intoxicated man into thinking the husband’s wife wanted intercourse with the intoxicated stranger) (R. v. Cogan & Leak, 1976 Q.B. (Eng. C.A.)). Each of these cases instantiates principal, not accomplice, liability on the part of the dominant party.

Core Cases of Accomplice Liability

What Must The Helper Do to Be an Accomplice to The Principal’s Crime?

In what way is it as though helpers who do not coerce or manipulate their principals commit their principal’s crimes? The helper has merely helped. But helping, say, burglary, is not committing burglary. Nor is helping burglary trying to commit burglary, any more than argue is equivalent to ‘‘try to convince’’ or warn is equivalent to ‘‘try to alarm.’’ AngloAmerican law nevertheless treats a helper as a principal so long as the helper intentionally contributes to the principal’s crime. In other words, if the helper pitches in the requisite contribution to the principal’s crime, then the helper is punished identically to the principal since AngloAmerican law long ago ‘‘abrogated’’ or statutorily eliminated the historically recognized distinction between the amount of punishment one deserves for, say, giving a burglar a crow bar and actually performing the breaking and entering oneself (Standefer v. United States, 447 U.S. 10 (1980) pp. 15–20; Smith). Whether a defendant is (1) a perpetrator (or ‘‘principal in the first degree’’) who actually performs the criminal act; (2) a perpetrator (or ‘‘principal in the second degree’’) who provides some assistance at the scene of the crime; or (3) a helper or an accomplice (or ‘‘accessory before the fact’’) whose aid is given in advance (as in the planning stages) or contemporaneous with but away from the scene makes no difference for purposes of punishment. Indeed, only a helper (or ‘‘accessory after the fact’’) whose assistance comes after the crime has taken place—typically in the form of concealment of the crime—receives a more lenient punishment than those criminals who make their contribution before or during the crime.

While this position of ‘‘equivalency’’ of punishment between those who commit crimes and those who help them is uncontroversial in AngloAmerican law, there is some controversy over what sorts of help or contribution count as acts of accomplice liability. We know already that too much influence—too great a contribution—is not a case of accomplice liability at all, but rather a case of principal liability on the part of the would-be helper. So too is it possible that the would-be helper has not done enough for his contribution to count as an instance of accomplice liability. Although there are various formulations of how much the helper must add to the criminal venture, it is clear that encouragement of any sort, whether it be in the form of soliciting or asking the principal or another helper to commit or participate in a crime, cheering on the principal (or another helper), or merely promising the principal (or another helper) to help if necessary is enough to keep the helper on the hook for the principal’s actions.

When accomplice liability is based on encouragement, the doctrine operates identically to the doctrine of conspiracy. The doctrine of conspiracy holds that parties who agree to commit a crime are jointly liable not only for the agreement, but also for the carrying out of the conspiratorial objectives (Pinkerton v. United States, 238 U.S. 640 (1946)). An agreement can be formal or explicit as well as implicit or arrived at through ‘‘nods and winks.’’ Merely imitating another’s behavior, however, falls short of an agreement, even if the imitation is mutual. Thus the Supreme Court has held that a conspiracy to fix prices cannot be proved in the absence of some communicated intention to pursue a specified pricing strategy. Simply pursuing such a strategy—even aware that it is strongly in other competitors’ interests to do the same—is ‘‘consciously parallel’’ behavior, but does not make out a case of conspiracy (Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939)). Many cases of accomplice liability, however, are also cases of conspiracy. Those that are not are cases that originate not with encouragement between parties, but when material aid such as a car, a crowbar, a gun, or poison are supplied, or when the helper serves as a getaway driver or lookout. In these instances—where there is no communication of the helper’s intent to help—there is no conspiracy between the principal and the helper to commit a crime. Accordingly, the helper’s shared responsibility for aiding the principal’s crimes in these instances is based on the law of accomplice liability, as opposed to the laws both of accomplice liability and conspiracy.

When it is aid and not encouragement that the helper adds, it must be ‘‘actual’’ aid that ‘‘mattered’’ or ‘‘made a difference’’ to the principal’s actions (Kadish, pp. 358–359). Only when the helper’s actions could not have been successful in any case is there no accomplice liability. Thus the question ‘‘how much contribution?’’ comes down simply to whether the helper meant to contribute to the principal’s crime, and any action that betrays such an intention will be deemed sufficient to constitute an act of accomplice liability. Thus it has been held that lending a man a smock to keep a battery victim’s blood from staining the batterer’s suit made enough difference to the batterer to justify our treating the smock-lender as a batterer (judgment of 10 May 1883, 8 RGSt 267; cited in Fletcher, pp. 677–678). So too might an angry judge’s interception of a telegram have mattered in a murder, since if the victim had received the telegram, he could have anticipated the gunman behind him on reading the crucial wire: ‘‘Four men on horseback with guns following. Look out’’ (State ex rel. Attorney General v. Tally, 102 Ala. 25, 69, 15 So. 722, 734 (1894)). Even a door opened for a burglar could conceivably make a difference to burglary through the window.

The above are only exceptional examples; but even basic cases of accomplice liability, such as where a helper lends his principal a crowbar for a burglary or drives him to the sites of the crime, are not cases where the helper actually causes the crime, even if the principal has no crow bar of his own or cannot drive a car. It follows that an otherwise superfluous helper whose opening a bank door hastens a robbery by seconds is on the hook as accomplice to the robbery, as flimsy as his contribution may be. Thus the real issue here is not so much whether the helper has ‘‘caused’’ or even ‘‘made a difference’’ to the principal’s crime, but rather, whether the helper has put himself to helping, or has tried to help.

What Must The Helper Know about The Principal’s Intentions?

It is not enough that the helper encourage or aid the principal in the principal’s crime or crimes. In order to be an accomplice in the principal’s crime(s), the helper must in addition know what it is that is being helped, and must intend that the acts of encouragement or aid facilitate the principal’s criminal venture. In other words, there must be some level of attunement between the parties before blame for the principal’s actions can be shared equally by the helper. So, if the helper lends a crow bar to his neighbor unaware that the neighbor intends to use it for a burglary, then the helper is not an accomplice to the burglary, even though he has contributed material aid. Because the aid was provided in ignorance of what use it would be put to, the aid cannot, by itself, make out a case of accomplice liability against the helper. This is precisely the problem the law faces with providers of goods (e.g., retail hunting stores) and services (e.g., lessors of hotel rooms) who naively help along a criminal venture. A helper’s contribution simply cannot count as accomplice liability unless the helper knows what the principal is up to.

Even when the helper does know what the principal is up to, there are two considerable problems to our finding the helper to be an accomplice in what the principal ultimately does: (1) the helper may be indifferent to how or even whether the helper’s contribution operates on the principal; and (2) the principal may depart ‘‘upward’’ from the common scheme by committing excessive crimes not imagined by the helper, or depart ‘‘downward’’ from the common scheme by raising a complete or partial excuse from liability that may (or may not) be open to the helper.

The Helper’s Level of Commitment to The Principal’s Criminal Venture

Often the principal and helper have divergent levels of commitment to the contemplated crime. For example, the lessor of a hotel room that the lessor knows the lessee will use for gambling, drug distribution, or prostitution may well know to what unlawful use the premises will be put. But the lessor still may not, in the words of the celebrated Judge Learned Hand, have a sufficiently ‘‘purposive attitude towards’’ the venture so as to be ‘‘associated’’ with it in a way that demonstrates ‘‘that he wishes to bring [it] about’’ (United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). Instead, the lessor may even prefer to lease the room to a law-abiding lessee (that way the lessor can avoid trouble) but is willing to rent to anyone who can pay the going rate. In such a case, the lessor’s contribution to the crime counts as aid, but unless there is reason for us to believe that the lessor is somehow in on the scheme, the lessor’s aid falls short of the ‘‘purposive attitude’’ toward the principal’s crimes that the law of accomplice liability requires. No doubt a case of accomplice liability is made out if the lessor takes a commission from the lessee’s venture or charges the lessee extra to insure against the risk the lessor incurs by leasing to a criminal who may for obvious reasons be bad for the lessor’s business.

This means that a helper cannot be accidentally liable for or caught up in the principal’s crimes, even when the crime that the principal has committed is one for which accident is not necessarily an excuse. For example, a (principal) driver can be convicted of drunk driving even if it is perfectly reasonable for him to believe he has had too little to drink to have become drunk. To be accomplice to the driver’s drunk driving, however, the helper must do more than merely fail to take cost-justified precautions against doing or saying anything that may make the principal’s drunk driving more likely. Instead, the helper must mean to facilitate drunk driving; he must, in Judge Hand’s terms, demonstrate a purposive attitude toward bringing about the crime in question. So a bartender or social host may in fact be assisting drunk driving by keeping an inaccurate tally of how much their guest or customer has had to drink, they may know that such a result is likely, and nonetheless not have within the letter of the law helped drunk driving—not if such an outcome is not the bartender or social host’s intention.

The Principal’s Departures from The Common Scheme

When The Principal Departs ‘‘Upward’’: The Helper’s Liability for The Principal’s Excess.

Assuming that there is at least a crime toward which the helper has the requisite intention or ‘‘purposive attitude,’’ then what happens if the principal commits other crimes in addition to or instead of the crime or crimes that the helper means to help? In evaluating the helper’s responsibility for the principal’s excessive criminality, the law is understandably unsympathetic to the claims of the too-finicky helper, who complains at trial that the principal deviated, however slightly, from the common scheme. Therefore if the helper asks the principal to take the victim’s gold watch by snatching it from the victim’s wrist, but the principal obtains it by threatening to expose the victim’s criminal record to his golf club, a court would not let the helper off the hook for being an accomplice to the principal’s blackmail. The criminal objective of stealing the watch remains the same—the principal’s deviation only in means fails to demonstrate a lack of attunement between the parties. If, however, the helper lends a crowbar to the principal, believing that the principal intends to enter a house in order to steal a television, the helper will be off the hook for playing a role in, say, arson, if that is what the principal unexpectedly does instead upon entering the house. So long as there is attunement as to ‘‘essential matters’’ or so long as the crime in question is of the same ‘‘type’’ or within the ‘‘contemplation’’ of the range of crimes anticipated by the helper, the principal’s departures will not save the helper from liability for what the principal ultimately does (Northern Ireland v. Maxwell, (1978) 3 All E.R. 1140; Regina v. Bainbridge, (1960) 1 Q.B. 129). Determining just what it was that was contemplated demands thorough knowledge of the enterprise, a matter that is made easier when there is a conspiracy: the more formal the better.

When the principal exceeds the helper’s expectations, still a minority of courts have expanded the liability of the helper for the principal’s excesses (People v. Luparello, 231 Cal. Rptr. 832 (Ct. App. 1987)). It is safe to say that decisions which hold helpers on the hook for their roles in, for example, intentional murder by a principal when the helper asked the principal to commit assault or at most kidnapping, reveal the most extended or outermost limits of a helper’s liability. Yet the overwhelming majority of courts regularly do make this stretch when principals commit intentional or accidental killings—even unforeseeably or contrary to a carefully thoughtout plan—during the course of certain ‘‘inherently dangerous felonies,’’ such as burglary, robbery, arson, rape, kidnapping, and prison escape (Model Penal Code § 210.2(1)(b)). As a result, a getaway driver who means to aid in robbery is liable for the ‘‘murder’’ of a store clerk who dies of a heart attack when confronted by the armed principal robber. Outside of this area of homicide, known as ‘‘felony murder,’’ helpers are typically held liable only for their principals’ actions that are within, or at least adjacent to, their common scheme.

When The Principal Departs ‘‘Downward’’: The Helper’s Relation to The Principal’s Excuses.

So far we have been focusing entirely on helpers’ excuses that have to do with what the helper knows, intends, and does. But often the principal will have an excuse that will allow him to avoid altogether, or at a minimum reduce his responsibility for, what he has done. In such cases, courts have developed strategies for establishing the connection, if any, between the principal’s full or partial excuses and the helper’s liability.

Take for example a version of Shakespeare’s Othello, in which Iago calmly and maliciously drives Othello into a blind rage and incites him to kill his wife Desdemona by making Othello believe (falsely) that Desdemona had been unfaithful to him. Let’s assume that Othello’s rage would make him eligible for the partial excuse of ‘‘provocation’’ or ‘‘extreme emotional disturbance,’’ which precludes a murder conviction and instead makes his crime more accurately described as the less-grave offense of manslaughter. The excuse is only partial because Othello still deserves some punishment; it is not as though Iago acted (completely) through him. Othello was in a rage, but still knew what he was doing—knew that he was retaliating against his wife. While Othello is still partially responsible for what he has done, his rage reduces ‘‘down’’ to manslaughter an otherwise murderous act. Consequently Othello’s punishment will be five or so years rather than the life imprisonment he would have been eligible for had he been thinking more clearly at the time of the killing.

But what is Iago’s relation to Othello’s partial excuse? There are four options open to us here, each of which is expressed in at least some AngloAmerican court opinions: (1) allow Othello’s rage to benefit Iago on the ground that a helper’s liability cannot exceed whatever crime actually takes place. This view is appealing to the extent that it enforces the notion that a helper’s liability is derivative of the principal’s—the helper cannot help a crime that does not take place, whatever the reason may be that it fails. This view is unappealing, however, to the extent that it lets the helper borrow (perhaps unfairly) defenses such as intoxication, mistake, insanity, and duress, which may be utterly personal to the principal; (2) allow Othello’s rage to benefit Iago only if Othello was ‘‘justified’’ in part in killing Desdemona as opposed to merely ‘‘excused.’’ This has the appeal of letting the helper exploit a principal’s actions that, at least in part, ‘‘interfere with the rights of no one.’’ Unfortunately, to give the helper this benefit not only requires taking a position on which defenses are in fact justified as opposed to excused, but also threatens the unwelcome result of allowing a helper to claim he was justified in doing something when the very facts that make the act justified are unknown to him (as in battering someone whom unbeknownst to the batterer the principal had the right to repel in self-defense); (3) deny Iago the benefit of Othello’s rage by ‘‘grafting’’ Othello’s action onto Iago’s intention in order to make out a case of murder on Iago’s part and manslaughter on Othello’s. While this way each party would have to raise his own defenses, the problems are considerable in that this would permit a defendant to be convicted as accomplice to a murder when no murder took place; and (4) conclude that Iago has attempted murder while Othello has committed manslaughter. This position (Model Penal Code § 5.01 (3)) recognizes that the helper’s help has in an important sense failed or misfired (thus the reduced liability) and features the additional benefit of reflecting that accomplice liability is more about what the helper puts himself to than what he actually accomplishes. Whichever of these four strategies a jurisdiction adopts for dealing with problems of a helper’s liability for the actions of a principal who may have a full or partial defense will determine whether the helper is punished even though the principal is not, whether the helper can borrow a principal’s excuses (or his justifications), or a position somewhere in between.

What Crimes Can Be Helped?

Although the abrogation of the distinction between principals and helpers has equalized their punishments, the abrogation will never be able to eliminate altogether the distinction between helping and doing when it comes to identifying whether certain actors are liable at all for whatever it is that has happened. For example, suppose an antiprostitution law that criminalizes ‘‘selling sex.’’ Obviously the prostitute is the seller, but what has the ‘‘John’’ or buyer of sex done? Sold sex? Helped the prostitute sell sex? Nothing criminal at all?

This problematical aspect of the law of accomplice liability comes up frequently in the context of two-party cases requiring the participation of two persons as opposed to the run-of-the-mill offense that requires a perpetrator and a victim. Dangerous games such as Russian roulette or drag racing are examples of such two-or-more-party offenses where the law of accomplices has an uncertain role to play. It is not all that unusual for courts to say that lucky survivors of dangerous games have somehow killed the unlucky players who have died from shooting themselves in the head or by driving their cars off the road into ditches or oncoming traffic.

For example, in People v. Abbott & Moon, 84 A.D.2d 11 (N.Y. App. Div. 1981), Moon was drag racing with Abbott, who killed Patricia Hammond and her two passengers, who had entered the intersection through which Moon was racing at 80–85 and Abbott at over 90 miles per hour at the time of the wreck. Although Moon was driving worse than unsafely, he was lucky enough to avoid ramming into anyone. While Abbott’s liability for the three deaths was obvious, Moon’s conviction of criminally negligent homicide and reckless driving also was upheld on appeal. The court explained that

[w]hile Moon did not personally control Abbott’s vehicle which struck the three victims, it could reasonably be found that he ‘‘intentionally’’ aided Abbott in the unlawful use of the vehicle by participating in a highspeed race, weaving in and out of traffic, and thus shared Abbott’s culpability. . . . Moon associated himself with the high-speed race on a busy highway and took part in it for nearly two minutes over a distance in excess of one mile. Actually his conduct made the race possible. He accepted Abbott’s challenge and shared in the venture. Without Moon’s aid Abbott could not have engaged in the high-speed race which culminated in the tragedy. (p. 15)

For this reading of complicity the New York appellate court cited criminal-law expert Wayne LaFave, who has noted that such a view ‘‘has much to recommend it’’ (LaFave and Scott, p. 673).

Although calling Moon an accomplice in the fatalities that arose out of his excessive risktaking has an elemental appeal (he was, after all, a wrongdoer), it is analytically impossible. Consider again the passage quoted above in which the court observed: ‘‘Actually his [Moon’s] conduct made the race possible.’’ Indeed it did, and this is precisely why each racer is analytically precluded from helping the race. Help can be withheld, or it wouldn’t be helping at all. In other words, because the relation of helping (unlike doing or perpetrating) to the ultimate harm is synthetic or empirical, not analytic or true by definition, the actions of helping and doing are distinct and should be so treated. Thus if the crime analytically, elementally, or definitionally requires two or more parties, then the required parties cannot, merely by participating, possibly ‘‘help’’ an activity to which they are by definition essential. Certainly a buyer does not help a seller in an exchange transaction by paying for goods any more than an unmarried person helps a bigamist by marrying him or her, a betrothed couple help each other get married by marrying, or someone helps someone else kiss by simply kissing them.

Here we are not talking simply about cases of ‘‘joint principality,’’ under which two parties divide the elements of an offense; for example, two parties rob when one commits the assault (the frightening of the person) and the other the larceny (the taking of the property). Since both the force or threat of force and the taking of the property are analytically, elementally, or definitionally necessary to any robbery, neither party is helping robbery; both are committing it. Oppositely, where the help of one party is necessary only as an empirical or synthetic matter—that is, where the helper does not fulfill a statutory definition of crime or one of its elements, but his actions happen to be necessary for the crime on these facts, then he is helping and not doing, no matter how he may characterize his own actions. For example, that a getaway driver may be necessary for a successful robbery must be observed to be known; getaway drivers are not analytically or definitionally necessary to robbery, which occurs whether or not the perpetrators have a car. Consequently, getaway drivers are helpers, not principals or joint principals, regardless of how they may characterize their actions.

Despite considerable confusion in court opinions—see Commonwealth v. Atencio, 189 N.E.2d 627, 630 (Sup. Jud. Ct. of Mass. 1963)— and academic commentary—see Fletcher, pp. 654–655—multiparty game cases, like exchange transactions, do not instantiate helping by one whose participation is analytically a necessary condition of the crime itself. This is not to say that drag racing and Russian roulette foreclose altogether the doctrine of accomplice liability. Spectators cheering on a drag race could be liable for helping the homicide. Well-known (and still controversial) decisions like Wilcox v. Jeffrey, 1 All E.R. 464 (King’s Bench Division 1951), (where a magazine writer, for the purpose of writing about the performance, ‘‘helped’’ Coleman Hawkins play jazz illegally in the United Kingdom) have so held. Cheering spectators are helping drag racing (as Natalie Wood so enthusiastically did in Nicholas Ray’s Rebel Without a Cause) and thus are liable as accomplices in the unlucky racer’s demise. But a lucky drag racer who avoids disaster—who neither bumps, cuts off, nor swerves into another racer, driver, or pedestrian—‘‘helps’’ nothing.

Although American law insists on treating helpers and doers identically, the cheering spectators should have an excuse, albeit a partial one: they were merely helping. Not only is the lucky survivor helping nothing, but neither is he jointly principal in the killing, given that the crime with which such defendants are customarily charged—manslaughter—has two elements: (1) excessive risk-taking and (2) causing death. Manslaughter is not, analytically, a two-or-moreparty offense; nor is it divided into one (one steers, the other accelerates?) as obscene phone calling could be were one person to dial and the other to speak obscenely. Moon was charged with manslaughter, not with drag racing. To use the necessary participation as a means of describing the role as that of helping the unlucky player’s actions papers over the grammatical, even moral, distinction between helping and doing.


  1. Dressler, Joshua. ‘‘Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem.’’ Hastings Law Journal 37 (September 1985): 91.
  2. Fletcher, George. Rethinking Criminal Law. Little Brown, 1978.
  3. Great Britain. ‘‘Assisting and Encouraging Crime.’’ The Law Commission Consultation Paper No. 131. London: Her Majesty’s Stationary Office, 1993.
  4. Kadish, Sanford. ‘‘Complicity, Cause, and Blame: A Study in the Interpretation of Doctrine.’’ California Law Review 73 (March 1985): 323.
  5. LaFave, W., and Scott, A., JR. Criminal Law, 2d ed. St. Paul, Minn.: West, 1986.
  6. Model Penal Code § 2.06. Official Draft. Philadelphia: ALI, 1962.
  7. Robinson, Paul. ‘‘Imputed Criminal Liability.’’ Yale Law Journal 93 (March 1984): 609.
  8. Smith, K. J. M. A Modern Treatise on the Law of Criminal Complicity. New York: Oxford University Press, 1991.
  9. Yeager, Daniel. ‘‘Helping, Doing, and the Grammar of Complicity.’’ Criminal Justice Ethics 15 (winter/spring 1996): 25.
  10. Yeager, Daniel ‘‘Dangerous Games and the Criminal Law.’’ Criminal Justice Ethics 16 (winter/spring 1997): 3.
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