Classifying an Actor

Classifying an Actor

The four definitions are easy to recite and harder to apply, because an exam or a charging document presents a person and a list of things the person did, with no label attached. Getting the label right matters beyond vocabulary: at common law each label carried its own procedural rules, and a person charged as one type of party could not be convicted as another, so a mismatch between the facts and the charge could defeat the prosecution.¹ The sorting itself has a simple structure. Once it is clear who performed the criminal act, the four statuses the common law recognized sit on a timeline, with the felony at the center and the helper's assistance coming before it, during it, or after it.² Presence at the scene then divides the helpers who act before or during the felony into principals and accessories.³

The first question comes first because it is the only one that does not depend on anyone else's crime. Every later status describes a person who helps someone else's felony, so the felon has to be identified before the helpers can be placed. The first question also has a branch that is easy to miss: a person who uses an innocent agent, meaning someone who performs the criminal act but lacks the capacity or the guilty mind and was fooled or forced into acting, is a principal in the first degree and not an accomplice, because the law counts the agent's act as the user's own.⁵ The second question follows because presence is a feature of help and cannot stand alone. A bystander who is at the scene and hopes the crime succeeds, but says and does nothing, has given no assistance and never reaches the presence question.⁶ Only a helper arrives at step three, where presence does the sorting.

Hold one bank robbery constant and watch the label follow each person who touches it. Linda robs the bank and personally commits the offense, so she is the principal in the first degree. Clara delivers the demand note to the teller and brings the cash back to Linda, but Clara believes she is helping with an ordinary errand and has no intention of assisting a crime, so she is an innocent agent who was deceived and is not an accomplice.⁷ Olga puts the cash into a bag for Linda only because Linda threatens her with imminent deadly force. A person forced at gunpoint to commit a criminal act is also an innocent agent, and the person doing the forcing answers as the first-degree principal.⁸ The two helpers show that the physical contribution does not settle the label; the helper's knowledge and freedom of choice do. Olga's position also shows how a defense can take a helper out of party liability altogether, since she cannot be convicted as an accomplice if duress succeeds, although the defense itself is taught elsewhere.⁹

Brad poses the presence question. He intentionally helps Linda while she robs the bank, and because he is at the scene, he is a principal in the second degree.¹⁰ The same help given from a distance produces a different label, so presence is the fact to isolate.

The reason the line falls here is practical. A helper at the scene stands in a position to contribute while the felony unfolds, whereas an absent helper's contribution is finished before the felony starts. A person whose only role was to hand the principal a weapon beforehand is the standard example of the accessory before the fact.¹¹ Absence is therefore what defines that status, and it is the only fact that moved Brad from one label to the other.¹²

Presence is not limited to standing inside the bank. A person is constructively present when cooperating with the perpetrator and so situated as to be able to aid, with a view known to the other, in securing the success of the common purpose.¹³ The getaway driver who waits outside under the robbers' plan is the standard illustration: a second-degree principal even though never inside the bank.¹⁴ In Enmund v. Florida the Florida Supreme Court treated a man sitting in a car by the side of the road, a few hundred feet from the victims' home and waiting to help the robbers escape, as a principal in the second degree who was constructively present.¹⁵ In State v. Sowell, by contrast, a planner who scouted the scene and signaled the robbers to go ahead, then drove away to stay out of sight, was held to be an accessory before the fact and not constructively present, because nothing showed he could render aid while the crimes were committed.¹⁶ What separates the two is where each helper put himself in relation to the plan's execution: the waiting driver stationed himself to carry out an assigned part, while the planner took himself out of range on purpose.

The order of questions also appears in a court's own reasoning. In State ex rel. Attorney General v. Tally the court found no proof that Tally had commanded, directed, or encouraged the killers before they left, so it set aside accessory-before-the-fact status in the sense of prior instigation and asked whether he was a principal in the second degree, constructively present and aiding.¹⁷ The trap at this stage is letting importance in the plan stand in for presence. A mastermind who stays away is an accessory before the fact no matter how much the plan depended on the contribution, because the label follows where the helper was and not how much the helper mattered.¹⁸

Timing is the other variable. The fourth step applies to the actor whose help began only after the felony was complete, and it demands more than the right timing.

The first change in the facts moved the helper from absent to present. This one moves the help from before the felony to after it, and it brings two conditions that the earlier statuses do not have: the helper must know of the completed felony, and the help must be a positive act rather than a failure to notify the authorities.¹⁹ A person who never helped, or who only watched, falls outside all four categories. The fourth step also reaches only an actor who is not already a principal, so robbers who shelter one another after the robbery do not become accessories to their own crime.²⁰

Run in this order, the steps also expose the mismatch that undid the prosecution in Sowell: the facts fit the accessory-before-the-fact label while the charge named the second-degree principal, and a person charged as one kind of party could not be convicted as another.²¹ What each status means for the actor's guilt and punishment is the subject of the sections that follow, and here the task is only to assign the label correctly.