Parties to Crime
and Various
Liability
Joel Samaha
 Understand
the different parties to crime and
appreciate the difference between complicity
and vicarious liability.
 Appreciate that participants before and during
the commission of crimes are guilty of the
crime itself.
 Understand how participants after the
commission of crimes are guilty of a separate,
less serious offense.
 Understand the difference between accomplice
liability and conspiracy.



Know that mere presence or
inaction isn’t enough to
establish accomplice actus
reus; the defendant had to
take some positive act to aid
the commission of the offense.
Appreciate that courts are
divided over whether
knowledge is sufficient to
prove accomplice mens rea.
Understand that the core idea
of accessory liability is that it’s
not as blameworthy to help
someone else escape
prosecution and punishment
as it is to participate in the
crime itself.



Know the definition of
vicarious liability.
Understand that vicarious
liability can apply either to
enterprises or to individuals.
Know that vicarious liability
has to be created by statute

Complicity
• When a person is liable for someone else’s conduct
• Issue is the role they play in the other person’s crimes
(Parties to crime)
• Complicity applies criminal liability to accomplices and
accessories because they participate in the crime in
some way

Vicarious liability
• When a relationship between two parties makes one
party criminally liable for the other party’s conduct
• Transfer of actus reus and mens rea of one party to the
other party because of a relationship
 Employer-employee, parent-child, corporation-manager, etc.
COMMON LAW
MODERN APPROACH
• Principal in the first degree
• Grew out of the transition
from all capital offenses, to
few capital offenses. Need
for complicated set of rules
regulating when and if
accomplices/accessories
diminished as the
punishment became less
severe
 Person who actually
committed the crime
• Principal in the second
degree
 Person present when the
crime was committed and who
helped commit it
• Accessories before the fact
 Person not present when the
crime was committed but who
helped before the crime was
committed
• Accessories after the fact
 Person who helped after the
crime was committed

Parties to Crime-modern
• Accomplices – participants
before and during the
crime
• Accessories – participants
after crimes are committed
 Prosecuted
for the crime itself not a lesser
form
 Not the same thing as conspirators
• Conspirators are people who agree to commit
some other crime, lesser offense and the crime
doesn’t even have to be completed for
conspiracy to exist
• Accomplices are people who participate in the
crime together
• Accomplices can be guilty of both the
completed crime and of the lesser crime of
conspiracy to complete the crime
 Pinkerton rule – conspiracy is separate (does not
merge) into the completed crime

Accomplice Actus Reus
• Take some positive act in aid of the commission of the offense
• Statutes vary as to wording of actus reus
 Aid, abet, assist, counsel, procure, hire, induce
 Words can qualify if they encourage and approve the
commission of a crime
• Mere presence rule
 Mere presence at scene of crime isn’t enough to satisfy
accomplice actus reus
 U.S. v. Bailey
• Exception to the mere presence rule -- when persons have a
legal duty to act, presence alone can suffice for actus reus
 State v. Walden –mom looks on while man beats her son and
does nothing, jury convicted
 Actions
taken after the crime was
committed are not part of accomplice
actus reus (but juries can use
participation after the crime to prove
defendant’s participated before or
during the crime)
Review the article below then discuss whether or not the other
two individuals are accomplices or accessories to this offense.
http://www.suntelegraph.com/cms/news/stor
y-612329.html
 Mens
Rea
• Purposely helping another commit a crime
• Knowingly helping someone who is going to
commit a crime but not for the purpose of
benefitting from the crime (not as clear)
 Backun v. U.S.—defendant knowingly sold stolen silver
to Zucker but not for the purpose of sharing in Z’s profit
 “Guilt depends, not on having a stake in the outcome of crime
but on aiding and assisting the perpetrators. . .”
 U.S. v. Peoni—P sold counterfeit money to D, D was
caught trying to pass the fake money elsewhere.
 Different result. Learned Hand decision that Peoni’s
knowledge that D possessed counterfeit money was not enough
to sustain criminal liability.
 Mens
rea (cont.)
• Cases go back and forth as to whether the aider
and abettor has to purposely assist the other
person commit the crime
• Sometimes even reckless/negligence will suffice
 Did the participant predict that aiding and abetting
one crime might reasonably lead to another? (if so,
guilty on both)
 Common
Law
• Accessories after the fact were punished like
accomplices
 Modern
• Treated differently, they are not as bad as
someone who commits the crime or helps
another commit crime.
• Separate offense (no conviction for the
underlying offense)
 Misdemeanors usually
 Sometimes different names: obstructing justice,
hindering prosecution, aiding in escape, etc.
 Elements
• Accessory personally aided the person who
committed the crime (actus reus)
• Accessory knew the felony was committed
(mens rea)
• Accessory aided the person who committed the
crime for the purpose of hindering the
prosecution of that person (mens rea)
• Someone besides the accessory actually
committed the felony (attendant circumstance)
 Facts: Ulvinen, the defendant, was convicted of 1st
degree murder of her dauther-in-law, Carol. Ulvinen
didn’t murder Carol but was aware her son did murder his
wife and was present when he dismembered her body.
 Issue: Was Ulvinen an accomplice in Carol’s murder?
 Holding: Court held that actions after the crime don’t
transform behavior before and during the crime into
instigation, encouragement.
 Facts: Chism, the defendant, assisted Lloyd in transporting Gloria,
who had been stabbed multiple times by Lloyd, to Willow Points near
Cross Lake. Chism and another individual, not Lloyd, removed her
from the vehicle and placed her in some high grass on the side of the
roadway. Chism then left Lloyd, at his request, and a short time later
went to the police station, gave a statement, and took officers to the
place he had left Gloria with Lloyd. Gloria’s body was found a few
feet from the spot Chism led them too.
 Issue: Did Chism assist Lloyd after the fact?

Holding:
Court examined the elements of the statute and the
facts presented to the jury and upheld that a reasonable trier of fact
could find beyond a reasonable doubt that Chism assisted Lloyd and
desired that Lloyd avoid trial, conviction, or punishment.
 Actus
reus and mens rea of one party is
imputed to another party
 Most vicarious liability involves a
business relationship
 Vicarious liability can flow from
individuals to corporations and other
business entities and from individuals to
individuals


History
Corporate Criminal Law
• Creature of federal law
 Contracts clause of the Constitution
 Commerce clause of the Constitution
• Corporations affect interstate commerce

Historically, strong belief in corporate self-regulation
based on “shingle theory”
• Corporations will behave because it is in their own best
interests
• Market place will really control corporations
• Little or no room for governmental oversight and control
 SEC/government in the background in case everything went
awry
 Weakness
of self-regulation
• Depends on self-restraint
• Depends on ethical corporate governance
 Need
for government to be proactive not
reactive
 Need for government to be in position to
prevent misconduct (hasn’t been the
case)
Corporate liability via vicarious liability comes
through doctrine of respondeat superior
 Corporations, legal fiction as person, can be
sued and enter into contracts - 1909

• New York Central and Hudson River Railroad
Company
• Corporate employees’ acts are imputed to the
corporation
• “…the act of the agent, while exercising the authority
delegated to him to make rates for transportation,
may be controlled, in the interest of public policy, by
imputing his act to his employer and imposing
penalties upon the corporation for which he is
acting.”
 Power of Congress to
 New York Central…
regulate corporations
• “There can be no question of the power of
Congress to regulate interstate commerce, to
prevent favoritism, and to secure equal rights to
all engaged in interstate trade. It would be a
distinct step backward to hold that Congress
cannot control those who are conducing this
interstate commerce by holding them
responsible for the intent and purposes of the
agents to whom they have delegated the power
to act in the premises.”
 Individuals
agents
are vicariously liable for their
• Employers, for example, are liable for acts of
their employees
 State
vicarious liability rests on state
statute
 Unless a state statute specifically
imposes vicarious liability, the courts
won’t impose it (policy reasons
surrounding blameworthiness of criminal
behavior as person blame)
Several contractors are employed by a major
construction company to build a residential high-rise
in a busy, downtown neighborhood. While one of the
contractors operates a bulldozer, another directs
traffic on the street away from the bulldozer. A
disgruntled motorist who is tired of waiting for the
bulldozer, leaves his vehicle, and confronts the person
directing traffic. The person directing traffic assaults
the motorist. Is the employer vicariously liable for the
employee’s behavior?
 Facts: Tomaino, the defendant, owned an adult video store.
An employee of the store sold a video to a minor (age 17) when
the minor presented his father’s driver’s license and credit
card. A second employee also sold the same minor a video
purchased with cash and no ID after the minor informed the
employee he was 37 and had used a credit card in the past to
purchase a video.
 Issue: Was the owner liable for the clerk renting “pornos” to
a minor?
 Holding: The court found that although liability can be
based on ownership of a business, it found that the statute in
question required personal action by a defendant, and did not
provide for vicarious premise oriented liability

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Holding parents responsible for the acts of children
can be based on vicarious liability deriving from the
parent child relationship. These cases/ statutes are
rare (and generally against public policy –requiring
personal blameworthiness for criminal liability)
Failure to exercise control laws are not vicarious
liability laws (they are based upon the parents actus
reus (omission) and mens rea (negligence or
recklessness generally)
Contributing to delinquency of a minor is also not
vicarious liability (based on parent’s actus reus and
mens rea)
Use the link below to review the Parental
Responsibility laws in your state.
Compare it to the laws in a neighboring state.
Are the similar?
Discuss your thoughts regarding Parental
Responsibility laws.
http://www.mwl-law.com/CM/Resources/ParentalResponsibility-Chart.pdf
 Facts: Minor sons were found guilty of driving
snowmobiles in violation of operating on a public
highway.
 Issue: Are parents liable for the children’ illegal
snowmobile driving?
 Holding: Holding parents liable simply because they
are parents violates due process