Section 2.1: Complicity

Fundamentals of Criminal Law by Adam J. McKee

Often, multiple actors play a role in the commission of a crime. When one individual is liable for another person’s action or conduct, it is known as complicity. Variability in participation and criminal conduct among defendants can lead to complexities regarding responsibility for the crime and the degree of that responsibility.

Common-Law Rules on Complicity

Under the traditional common-law rules, there were four unique categories of parties involved in a crime:

  • Principals in the First Degree: These are individuals who actually commit the crime.
  • Principals in the Second Degree: These individuals may be present when the crime occurs and often serve roles like lookouts.
  • Accessories Before the Fact: These are individuals who help in preparation for the crime but are not present during its commission.
  • Accessories After the Fact: These people assist after the crime has been committed, such as by harboring a fugitive.

Principals in the First Degree

In the realm of criminal law, the term “principal in the first degree” is often synonymous with the main perpetrator of the crime, and is arguably the most recognized category of criminal participant. This individual not only harbors the necessary mental state, also known as mens rea, but also performs the physical act constituting the crime, referred to as actus reus. This dual satisfaction of mental intent and physical action places the principal in the first degree at the center of criminal culpability.

The act requirement can be fulfilled in two ways: either the principal personally executes the criminal act, or, intriguingly, directs another individual to carry it out on their behalf. In cases where an accomplice is involved, the principal in the first degree is still deemed the central actor since they are the driving force behind the criminal endeavor. Their significant role usually places them as the primary target for prosecution and they are often perceived as the most deserving of punitive measures. This underscores the legal and ethical gravity of being categorized as a principal in the first degree; it not only enhances the likelihood of conviction but also often results in the most severe penalties under the law.

Principals in the Second Degree

The category of “principal in the second degree” represents a nuanced layer within the fabric of criminal law, offering a slightly mitigated form of culpability when compared to principals in the first degree. Unlike the latter, physical presence at the crime scene is not a mandatory requirement for establishing guilt for principals in the second degree. Instead, the concept of “constructive presence” is sufficient, meaning that they could be aiding the crime from a distance, perhaps through communication devices or other indirect means.

While they don’t execute the criminal act (actus reus), themselves, they provide critical support in the commission of the offense. Roles can vary and might include serving as a lookout to alert the principal in the first degree of approaching danger or acting as a getaway driver to facilitate a speedy escape post-crime. In these capacities, although they don’t personally engage in the core criminal act, their actions are indispensable to the crime’s successful execution. Their involvement generally goes beyond mere passive association; it constitutes active facilitation or encouragement of the crime.

Consequently, the law often treats them as nearly equally culpable as the principal in the first degree, even if societal perception might consider them slightly less blameworthy. Their indispensable role in the orchestration and success of the criminal act underscores their legal significance and ensures that they, too, face serious legal repercussions.

Accessories Before the Fact

The category of “accessories before the fact” introduces a fascinating layer of complexity to the landscape of criminal liability. Unlike principals in either the first or second degree, these individuals are characteristically absent from the actual crime scene. Their contribution takes place before the criminal act occurs, thus distinguishing them spatially and temporally from the principal actors. Despite not being physically present during the crime’s execution, they have played a role in encouraging or planning its commission, which can be as simple as providing moral support or as complex as delivering the tools needed for the crime.

There’s a tendency to view accessories before the fact as less culpable due to their physical absence when the crime is committed. However, this perspective can be misleading. In many instances, these individuals may be the strategic masterminds who conceive and plan the criminal act. Their absence from the scene of the crime should not negate the potential enormity of their intellectual or logistical contribution. In fact, in some jurisdictions, the law has evolved to recognize the significant influence of these individuals by assigning them a level of culpability that approximates that of the principal actors. It’s essential to understand that their lack of physical presence is not always indicative of a diminished role in the crime. They can be the architects of the criminal scheme, laying the groundwork that makes the crime not only possible but also more likely to succeed. As such, they too can face serious legal consequences, emphasizing the gravity of their roles in the eyes of the law.

Accessories After the Fact

The “accessory after the fact” stands apart from other categories in the criminal law landscape, primarily because their involvement starts after the criminal act has been committed. These individuals may not have participated in the planning or execution of the crime, but they play a role in its aftermath by actively aiding the principal offenders to evade capture or prosecution. Their actions can range from providing a safe haven for the perpetrator, destroying evidence, or even misleading investigators to protect the criminal actors.

Under traditional common-law rules, the accessory after the fact faced derivative liability for the original crime, as if their post-crime involvement was an extension of the initial criminal act. This perspective often resulted in severe legal repercussions, but the contemporary legal approach in most jurisdictions has evolved. Recognizing the temporal and qualitative difference in their participation, modern laws usually treat their actions as a separate offense that is generally considered less grave than the original crime. The accessory after the fact is often seen as less culpable because their involvement does not facilitate the commission of the crime itself; rather, it aids in the aftermath.

However, the “lesser offense” classification should not undermine the importance of their role. Shielding criminals can contribute to prolonged investigations, wasted resources, and potentially more crimes committed by the main perpetrators who remain at large. Thus, while they may face lighter penalties compared to principal actors, the law still deems their actions significant enough to warrant criminal liability, underlining the crucial need for justice and accountability at all stages of criminal activity.

Modification History

File Created:  07/12/2018

Last Modified:  09/12/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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