Becoming an Accomplice

Becoming an Accomplice

Subsection (2)(c) makes a person accountable for another's conduct when he is an accomplice of the one who acted, but that gateway does not say who qualifies. Subsection (3) supplies the answer, and it works as a template: one required state of mind, followed by three alternative forms of conduct, any one of which will do.¹ The state of mind is stated once and comes first, as "the purpose of promoting or facilitating the commission of the offense."² With that purpose in place, the person must also solicit another to commit the offense, or aid, agree to aid, or attempt to aid another in planning or committing it, or, having a legal duty to prevent the offense, fail to make proper effort to do so.³

The order of the template tracks where the doctrine's weight falls. The conduct alternatives ask for very little: a request, a promise of help that is never used, an attempt that fails to assist, or silence by a person already obliged to act. None of these has to be dangerous or effective, so conduct alone cannot separate someone who joined a crime from someone whose act happened to be useful to it. That separating work falls to purpose, which asks whether the person wanted the offense to occur. This is sometimes described as a dual intent: the intent to do the acts that amount to assistance, and the intent that the assistance result in the offense charged.⁴ Later sections refine how that intent operates when an offense turns on a particular result, but at this stage the point is that without it the list of conduct describes no one in particular.

On an exam stem, the trap is treating assistance alone as complicity, since the stem will often describe a helpful act at length and say little about why it was done. The first question is what the person was trying to accomplish; the conduct list comes second. A separate path appears in subsection (3)(b), under which a person is also an accomplice when his conduct is expressly declared by law to establish his complicity.⁵ That path applies only where a statute names the conduct, so the ordinary analysis runs through (3)(a). The sections below take the purpose requirement first, because it decides the cases the conduct list cannot, and then each of the three forms of conduct in turn.

The Purpose Requirement

The mental state that opens § 2.06(3)(a) is stated once and governs every form of conduct that follows it: the actor must have acted "with the purpose of promoting or facilitating the commission of the offense."⁷ The phrase asks what the person consciously set out to bring about, and the answer has to be the offense. The Code's official commentary identifies what that aim must attach to: the actor must have as a conscious objective the bringing about of conduct that the Code has declared criminal.⁸ The accomplice must therefore aim at the particular conduct that forms the basis of the charge, and courts in states that adopted the Code's wording generally read the phrase that way.⁹

The requirement carries so much weight because the conduct side of (3)(a) asks for so little. A request, an agreement to help that is never used, an attempt to aid that fails, or silence by a person who already had a duty to act can each be slight, and a helpful act looks the same whether a partner performed it or a stranger who had no idea how it would be used. Conduct therefore cannot sort partners from bystanders, and the sorting has to be done by the actor's state of mind. The purpose requirement does that work by asking whether the person wanted the conduct to happen.

The standard illustration holds the conduct constant and varies only the aim. A shouts to V, whom P is about to shoot, "Take off your hat and die like a man." If A speaks the words intending to encourage P to shoot, and P takes them as encouragement and fires, A acted with the purpose of promoting P's conduct and satisfies the mental-state element.¹⁰ If A speaks the identical words with no such intent, and P still hears them as encouragement, the words may have had the effect of encouraging the shooting, but A lacked the purpose to promote P's conduct and is not an accomplice.¹¹ Nothing about the words or their effect separates the two versions. A's aim alone decides the result.

The harder case arises when the defendant does more than fail to want the crime and is fully aware that it will happen. The Code treats knowledge that another will engage in the conduct as an insufficient basis for accomplice responsibility.¹²

The two versions differ only in what the shopkeeper wanted, and that difference decides whether (3)(a) is met.¹³ On an exam stem, knowledge that another will commit a crime is the fact most often mistaken for purpose, because the stem will recite what the defendant knew in detail and say little about what the defendant wanted. The reason for refusing to equate the two is practical. A merchant who sells goods available elsewhere, or an employee who processes a shipment to keep a job, will often know or suspect what a customer or employer intends without sharing it. If knowledge were enough, every such person would have to investigate and refuse, or risk conviction of the other's offense itself.

The line between knowing and wanting was drawn most sharply in two federal appellate decisions. In United States v. Peoni, the defendant sold counterfeit money to Regno, who resold it to Dorsey, and Peoni was charged as an accessory to Dorsey's possession. Although Peoni had reason to expect the resale, the prosecution could not show that he wanted it to happen, and Judge Learned Hand reversed, requiring that the defendant participate in the venture "as something that he wishes to bring about."¹⁴ In Backun v. United States, by contrast, a seller who knowingly sold stolen silverware to a buyer who then carried it to another state was convicted under a knowledge test, even though the seller did not specifically desire the interstate trip.¹⁵ Under Peoni the prosecution must show that the defendant wished the crime to occur, while under Backun it is enough that the defendant knew and supplied the aid anyway. Most jurisdictions follow Hand, and the Code states its requirement in the same purposive terms.¹⁶

The Code did not reach that result by overlooking the alternative. A proposal during its preparation would have made a person an accomplice if, knowing that another was committing or intended to commit a crime, he knowingly and substantially facilitated it. That design aimed to spare the vendor who supplies goods readily available on the open market and the minor employee who minds his own business to keep his job, while still reaching those who knew they were giving substantial aid. The proposal was not adopted, perhaps because of its vagueness, and § 2.06(3)(a) therefore limits accomplice liability to those who have the purpose of promoting or facilitating the offense.¹⁷ Some modern codes deal with the knowing helper through a separate, lesser offense of criminal facilitation instead, which permits lighter punishment than the person who wanted the crime to occur would receive.¹⁸

Federal aiding-and-abetting law shows that the debate is still alive. In Rosemond v. United States the Court said that a person aids and abets a crime when, in addition to taking the required act, he intends to facilitate the offense, and that the intent must reach the specific and entire crime charged, a formulation that echoes Hand's.¹⁹ The Court also said that the intent requirement is met when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense, so that a participant in a drug sale who knows a confederate will carry a gun intends an armed drug sale.²⁰ The dissenters objected that the majority refers interchangeably to intent and knowledge tests, while adding that the difference between acting purposefully and acting knowingly is slight when purpose is properly understood.²¹ That blending belongs to federal case law. The Code's text says purpose, and an answer under the Code should apply it as written: awareness of the plan, without the aim of promoting the conduct, does not satisfy (3)(a).²²

Knowledge still matters in practice, because purpose is a state of mind and is usually proved by inference from what the defendant did. Aid rendered with knowledge of a criminal plan often implies purpose since it may have no other motivation, and the cases where the inference fails, such as the supplier, the lessor, or the employee, are the ones where the requirement does its work.²³ A court has found intent to encourage a marijuana sale on facts like those of a housemate who told a hesitating buyer that the marijuana was good and well worth the price.²⁴ Two limits on the scope of purpose deserve a brief flag. The Code's text does not say whether the accomplice must also have purpose toward the attendant circumstances of the offense, and courts that demand it may require more of the accomplice than of the principal.²⁵ Purpose also attaches to conduct, while the mental state required toward a prohibited result is governed separately by § 2.06(4), which a later section of this chapter takes up.²⁶

Soliciting the Offense

Of the three forms of conduct listed in § 2.06(3)(a), soliciting asks the least of a defendant's own hands, because the defendant need not supply a tool, join in a plan, or appear at the scene. A person who acts with the purpose of promoting or facilitating the offense and solicits another to commit it is an accomplice of that other person.²⁸ To solicit is to ask, urge, or command someone to act, and the Code's separate solicitation offense describes similar conduct as commanding, encouraging, or requesting.²⁹ The accomplice gateway then does its ordinary work. Once the person solicited commits the offense, subsection (2)(c) makes the solicitor accountable for that conduct, and subsection (1) makes the solicitor guilty of the offense itself.³⁰

The reason the Code treats a solicitor as an accomplice to the offense, rather than leaving the solicitor with a lesser derivative crime, lies in what the solicitor has done. A person who decides that a crime should happen, picks someone to carry it out, and asks for it has set the offense in motion, and the fact that someone else performs the physical act does not lower the solicitor's culpability. In many cases the solicitor is the person who most wants the result. A rule that reached only the executor would also give anyone with a crime in mind a simple way to avoid the offense, since delegating the act would shed responsibility for it. Treating the solicitor as an accomplice closes that route by allowing conviction of the offense itself whenever the person asked goes through with it.

The solicitation clause therefore depends on what the other person does. Accomplice liability holds one person accountable for conduct that another has engaged in, so it requires that conduct to exist, and a refused request produces none.³³ The structure of (3)(a) confirms the point. Clause (ii) reaches a person who attempts to aid, so help that fails to assist still counts once the offense occurs, whereas clause (i) has no attempt counterpart.³⁴ The failed request is handled elsewhere, because § 5.02 makes the purposeful request itself a separate crime of solicitation, and that is why accomplice liability does not need to stretch to cover requests that go nowhere.³⁵

Two cautions keep the clause within its limits. The purpose element from the preceding section applies to a request just as it applies to aid: a remark made in jest, or an invitation extended with no aim that the offense occur, lacks the purpose of promoting the offense, so the speaker is not an accomplice even if the listener acts on it.³⁶ On an exam stem, the usual error is calling a refused request accomplice liability. The question to ask is whether the person solicited committed the offense. If so, the solicitor is an accomplice to it; if not, the right label is solicitation under § 5.02. Both versions of the warehouse fire share the same request and the same purpose, and the only fact that moves the answer is whether the person asked committed the offense.

Aiding, Agreeing, or Attempting to Aid

Section 2.06(3)(a)(ii) supplies the second form of conduct that can make a purposeful actor an accomplice: the person "aids or agrees or attempts to aid" another "in planning or committing" the offense.³⁸ The three verbs are alternatives, and together they cover help that is given, help that is promised, and help that is tried but never lands. The phrase about planning or committing adds a point about timing, because assistance during preparation counts even when the helper is nowhere near the scene when the offense occurs. A clause this generous can be tolerated because, as the preceding sections explain, the conduct side of (3)(a) asks very little and the purpose requirement does the sorting between partners and bystanders. Two features of the conduct alternative carry most of the analysis, and each has its own reason.

The first feature is that attempted aid counts the same as aid that works. A helper whose assistance fails, goes unused, or never reaches the principal has still satisfied the conduct requirement, provided the offense is later committed and the helper acted with the required purpose.³⁹ The Code departs from the common law here. Where the helper and the principal had no prior understanding and the help never registered, the older approach might have treated the attempt like an undisclosed willingness to help if needed, which would produce no liability. The drafters answered that attempted complicity ought to be criminal and that separating it from effective complicity is unnecessary once the crime has been committed.⁴⁰ The structure of (3)(a) confirms the point: clause (i) has no attempt counterpart, so a refused request leaves the solicitor without accomplice status, while clause (ii) reaches a failed effort to help as long as the principal commits the offense.⁴¹

The reason for treating failed aid as aid is that the helper's culpability sits in what the helper tried to do and why. Someone who tries to promote an offense has committed to it as fully as someone whose help worked, and whether the help lands often depends on facts the helper does not control, such as whether the principals happen to hear a warning. A rule limited to effective aid would therefore make liability turn on luck. Attempted aid is not a free-standing crime, though. Accomplice liability remains derivative, so the helper is accountable only for conduct that actually occurs, and if the principal never commits the offense there is nothing to attribute and the accomplice route is closed.⁴²

The second feature is that the aid need not be a but-for cause of the offense. In State ex rel. Martin v. Tally, a court confronted a defendant who had prevented the delivery of a warning to a man whom another person then killed, and it asked whether the prosecution had to show that the killing would not have happened without that interference. The court said no: it is enough that the aid made the principal's task easier, even if the end would probably have been reached anyway, and aid that deprived the victim of even a single chance he would otherwise have had qualifies.⁴³ The Code's treatment is consistent with that result, since a person who assists with the required mental state is accountable for the principal's conduct whether or not the crime would have occurred without the help.⁴⁴ Requiring proof of necessity would force a jury to reconstruct what would have happened in a world where the aid was never given, an inquiry that can almost never be answered, and it would reward the helper whose contribution happened to be redundant even though the purpose behind it was identical.

The conduct alternative also does not require help with every part of the offense. In Rosemond v. United States the defendant joined a marijuana sale and was charged with aiding a crime that combined drug trafficking with the use of a gun, and the Court held that aid to either component satisfies the conduct requirement, because the division of labor among confederates has no significance.⁴⁷ Nor does it matter which element the helper assisted, since the Court rejected the argument that the aid had to be directed at the element the defendant called the offense's most essential feature.⁴⁸ The decision construes the federal aiding-and-abetting statute and is not a Code holding, but its reasoning fits (3)(a)(ii), which asks whether the person helped in planning or committing the offense and does not divide the offense into elements that must each be assisted.⁴⁹

Because purpose is proved by inference from conduct, decisions about when conduct supports the inference show which facts do the work. In State v. Wilson a housemate who told a hesitating buyer that the marijuana was good and well worth the price was found to have intended to encourage the sale, and in State v. McKeown a Washington appellate court found accomplice liability where the defendant had personally contacted the seller and was then present at the sale. The McKeown court distinguished State v. Gladstone, where nothing permitted an inference that the defendant counseled, encouraged, or otherwise procured the sale.⁵⁰ Those decisions suggest that the facts that matter are the ones associating the person with the venture, such as arranging the purchase or praising the product, and that presence at the scene adds weight to such facts without clearly replacing them.

Each step in that series moved one fact. The second version added an agreement and a honk, which supplied conduct without supplying purpose, and Kevin stayed outside liability. The third changed what Kevin knew and wanted, which supplied purpose and made him an accomplice. The fourth removed the effect of the honk and changed nothing, because the conduct alternative asks whether the person tried to help, not whether the help worked. The series also shows that the two requirements operate independently: purpose without any of the listed conduct leaves a person who merely hopes the friends succeed outside (3)(a), unless a legal duty to prevent the offense supplies the omission alternative, which the next section takes up.⁵³

On an exam stem, the usual error is demanding but-for causation from the aid, or dismissing help that failed, when the Code asks only whether the person tried to help with the right aim.

Omission by a Person with a Duty

Section 2.06(3)(a)(iii) supplies the third form of conduct that can make a purposeful actor an accomplice, and it is the only one of the three that can be satisfied by doing nothing. The clause reaches a person who, "having a legal duty to prevent the commission of the offense, fails to make proper effort so to do."⁵⁵ Solicitation and aid are things a person does. This clause asks instead whether the law required the person to act and whether the person stayed still. Because it sits beneath the opening words of (3)(a), it carries the same purpose requirement as the other two alternatives, so it applies only to a duty-holder who also acts with the purpose of promoting or facilitating the offense.⁵⁶

The duty requirement keeps this clause from swallowing the general rule that liability does not ordinarily flow from a mere failure to intervene.⁵⁷ A rule that treated every bystander who knew of a crime and did nothing as a participant would turn an ordinary failure to rescue into the offense itself, and it would reach people the law has never required to act. The general principle that an omission in violation of a legal duty can stand in for an act supplies the narrow exception. When the law already obliges a person to prevent a harm, that person's silence can be treated as conduct.⁵⁸ Section 2.06 creates no duty of its own. The duty has to come from law outside the accomplice provision, such as the obligations that attach to parenthood or those a statute places on a particular position.

The standard illustrations show how this works in practice. A conductor on a train might become an accomplice in the knowing transportation of liquor on his train by failing to take steps to prevent it. The owner of a car who sat beside the driver might become an accomplice to the driver's dangerous speeding even without any positive encouragement, and a parent might become an accomplice to a crime committed against the parent's own child by failing to intervene.⁵⁹ Each of these people holds a position that gives the law a reason to demand action: the conductor's role on the train, the owner's authority over the car, the parent's responsibility for the child. Remove the position and the same inaction becomes a bystander's, which clause (iii) does not reach.

Duty alone does not make anyone an accomplice, because the purpose requirement still governs. The two requirements sort different things. The duty identifies the people from whom the law could demand action, and the purpose identifies, among them, those who wanted the offense to succeed. Together they reach a person who both could have been required to intervene and hoped the offense would go forward, and they leave out the duty-holder who was merely careless, frightened, or indifferent. The drafters of the Code had proposed a broader test under which knowingly and substantially facilitating a crime would suffice, but the American Law Institute voted that proposal down, and the Code limits accomplice liability to purpose.⁶⁰ A duty-holder who knows the offense is coming therefore stays outside clause (iii) unless the failure to act is meant to promote the offense. The clause also speaks of proper effort and not of success, so a duty-holder who makes a proper effort to prevent the offense and fails has not committed the omission it describes. The same phrase returns in § 2.06(6)(c)(ii), where proper effort to prevent the offense matters for a person who has terminated complicity.⁶¹

On an exam stem, the usual error is treating knowledge plus presence as complicity. The stem describes a person who knew about the offense, could have stopped it, and did not, and the student concludes that the failure to act completes the analysis. Clause (iii) requires a legal duty from outside § 2.06 and the purpose to promote the offense, and a stem that supplies only knowledge and silence leaves both unproved.