Complicity

Complicity can actually be a very expansive doctrine, making individuals responsible for crimes committed by others that they did not expressly aid or encourage. As we saw in Chapter 13, the Pinkerton rule in conspiracy makes every co-conspirator responsible for all reasonably foreseeable crimes committed by other members in furtherance of the conspiracy. This is a very broad type of complicity. It does not require any co-conspirator actually to aid or encourage the specific crime committed by a co-conspirator. Likewise, felony murder makes all members of the joint venture responsible for a murder committed by a joint venturer in furtherance of the felony even though they might not have helped commit the murder or encouraged another to commit it.

In this chapter, we will focus on the more narrow type of complicity that requires the individual to actually encourage or help with P‘s crime.

THE RATIONALE OF ACCOMPLICE LIABILITY

As we saw in Chapter 7, the criminal law usually does not look beyond the last responsible human agent in determining causation.[2] Thus, the person who actually pulls the trigger in a homicide is normally responsible for the crime of murder.

Should other individuals who helped with the crime, perhaps by providing the murder weapon or encouraging the shooter to kill the victim, also be held responsible for the murder? If so, why? After all, the shooter has free will; he could always have decided not to pull the trigger. Moreover, A did not engage in the conduct that actually constituted the crime of homicide. Why hold him responsible for what someone else did?

Causation is not the basis of accomplice liability. Though A may influence P to act, the law assumes that P‘s criminal act is volitional and not physically caused by A‘s encouragement or assistance.[3] Indeed, A may have actually played a very minor role in helping P commit the crime, and P may have committed the crime even if A had not encouraged him. Thus, one may be found guilty as an accomplice even though his actions do not satisfy “but for” causation.

Accomplice liability differs from the law’s general approach to human causation. Accomplice liability does look beyond the last responsible human agent and makes others also responsible for P‘s criminal act. This extended reach of accomplice liability is justified because A, by her actions and her state of mind, has chosen to adopt P‘s criminal act as her own. By encouraging or helping another commit a crime, she has extended her will to embrace the actions of another.[4] P‘s criminal act is now also her criminal act. Moreover, in intentionally helping another to commit a crime, she has demonstrated by her own state of mind and by her own action that she is a socially dangerous individual.

In making A also responsible for the crime committed by P, accomplice liability might appear to contradict the general assumption in our criminal system that guilt must be personal. However, accomplice liability still requires proof of mens rea and a voluntary act for A. Thus, A‘s guilt is personal.