CHAPTER 14

Complicity

OVERVIEW

A leading actor or actress often has a supporting cast who assist in one way or another in the leading player’s performance. Likewise, criminals are often assisted by others in the commission of crime.

Complicity is a broad doctrine that imposes criminal responsibility on individuals for a crime committed by someone else, usually because these secondary actors have intentionally helped or encouraged the primary actor to commit the crime. Complicity can also impose responsibility based on other criminal law doctrines such as conspiracy.

In this chapter we will focus on a form of complicity called accessorial or accomplice liability. In general, individuals who help another person to commit a crime are accessories or accomplices to that crime and are also responsible for its commission. Frequently, statutes and case law will use terms like “aid, abet, encourage, assist, advise, solicit, or procure” to describe the various kinds of conduct that can generate accomplice liability. (Note that complicity, including accomplice liability, is usually not a separate crime with its own punishment. It is simply one way of committing a crime.) Throughout this chapter we will call individuals who help another to commit a crime through such activities “accomplices.”

There are two ways of helping someone else commit a crime:

1. Physical Aid. The defendant can physically help another person commit a crime. For example, he might obtain the gun used by the primary actor in the bank robbery. Or he may actually be present at the crime and help with its commission, perhaps by acting as a lookout or by driving the getaway car.

2. Psychological Aid. The defendant can encourage or reinforce the primary actor’s decision to commit a crime. For example, she may urge a fellow gang member to shoot a rival gang member who has shown her disrespect.

Note two interesting aspects of accomplice liability. First, it is a form of group criminality. It will necessarily involve at least two individuals—a primary actor (P) and a secondary actor, the accomplice (A), who is helping or encouraging P. Second, although the accomplice is held accountable because of his own voluntary act and mens rea, his guilt is based on the commission of a crime by P. Thus, A‘s guilt is derivative: A‘s liability is dependent on P‘s committing a crime or a criminal act.[1] The accomplice will usually be guilty of the same crime committed by the primary actor. Conversely, if P does not commit a crime, the accomplice cannot be convicted at common law because of the absence of a “guilty principal.” (As we shall see, the Model Penal Code does not require a guilty principal.)