Introduction

Common-Law Parties to Crime

Introduction

Crimes are often carried out by more than one person, and the participants rarely stand in the same relation to the offense. One person may break into a dwelling, a second may keep watch outside, and a third may have designed the whole scheme. The law therefore needs a way to reach people who do not personally commit every element of the offense but who still further it.¹ For felonies, the common law built that way out of four categories of participants: principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact.² As State v. Ward summarizes, the scheme began with a broad division of guilty parties into principals and accessories, and each group was then divided again.³

The four-way sorting mattered for two separate reasons. The first concerned guilt: whether the actor answered for the target felony itself or only for a lesser, separate offense. Once procedural obstacles were overcome, a person in any of the first three categories could be convicted of the felony and punished as for the felony. The accessory after the fact was later recognized as having joined in only after the felony was complete, and that actor is now treated as having obstructed justice and receives a different and lesser penalty.⁴ The second reason concerned procedure: how and when the actor could be prosecuted. An accessory could not be tried or convicted before the principal in the first degree had been convicted, and a person charged as one kind of party could not be convicted as another.⁵ These labels also applied only to felonies. In treason every participant was treated as a principal, and in misdemeanors all participants were principals too, so that post-crime aid to a misdemeanant was not criminal at all.⁶

Modern statutes have swept away most of these technicalities, but some still define the scope of complicity in common-law terms, and the accessory after the fact remains a separate and lesser offense, so the vocabulary retains practical value.⁷ This chapter covers the labels and their consequences. The acts and mental state required for accomplice liability belong to a separate reading. The order here runs from definitions, to a method for sorting an actor on a given set of facts, to what each status meant for guilt and for procedure, and finally to the modern departures that keep those technicalities out of present-day prosecutions. The definitions come first, beginning with the line the common law drew between principals and accessories.