Also known as: after-the-fact
Written by attorneys · grounded in primary & secondary sources — see below
A phrase denoting conduct or an occurrence that takes place subsequent to a legally significant event such as the commission of a felony. In criminal law it identifies a person who provides assistance to a known felon for the purpose of helping the felon avoid arrest, prosecution, or conviction.
Arthur Abrams commits a bank robbery. Audrey Ashton learns of the crime the next day and agrees to store the stolen cash in her garage to help Arthur avoid detection by police. Because Audrey provided assistance after learning of the completed felony, she qualifies as an accessory after the fact under the common-law classification of felony participants.
After Anita Ali robs a jewelry store, Arthur Abrams picks her up two hours later and drives her across the state line knowing she is fleeing arrest. Arthur's post-crime assistance to help Anita avoid prosecution makes him an accessory after the fact.
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Police arrest a pedestrian for refusing to produce identification without reasonable suspicion. The pedestrian later contests the arrest in a prosecution for failure to identify. Because the constitutional challenge occurs only after the fact in individual prosecutions, it cannot prevent the initial liberty intrusion for many similarly situated persons.
A corporation litigates its right to air a political advertisement during a presidential primary. Two years after the fact the court finally resolves whether the speech was permitted. By then the opportunity to persuade primary voters has already passed, rendering the ruling ineffective for the original election cycle.
A defendant claims ineffective assistance of counsel at trial. A reviewing court must determine after the fact whether competent counsel would have altered the outcome. The absence of a developed record of what the competent lawyer would have done complicates the prejudice inquiry.
A legislature imposes a higher sentence on an accessory after the fact than on the principal who committed the underlying felony. Because the accessory's culpability is measured after the fact by reference to the completed crime, courts recognize that the accessory should not receive a greater penalty than the principal.
The prosecution must show that a felony was committed, that the defendant knew the felony had been committed, and that the defendant provided assistance to the principal to help avoid arrest, prosecution, or conviction. The assistance must occur after the felony is complete.
No. An accessory after the fact provides assistance only after learning that the felony has already been committed. Presence at the scene is required for a principal in the second degree, not for an accessory after the fact.
At common law a court generally could not convict an accessory unless the principal had already been convicted. In a joint trial the jury could convict both if it first found the principal guilty.
…have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel.[^maj-6] In view of all…