Chapter Seven
Parties to Crime and
Vicarious Liability
Chapter Seven Learning Objectives
• 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 that the core idea of accessory
liability is that it is not as blameworthy to help
someone else escape prosecution and
punishment as it is to participate in the crime
itself.
Learning Objectives
• Understand that vicarious liability has to be
created by statute.
• Understand that vicarious liability can apply
either to enterprises or to individuals.
Complicity and Vicarious Liability
• 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.
Parties to Crime
• 4 parties to crime under Common Law
– Principal in the first degree
• 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 (continued)
• Modern approach
– 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
• Parties to Crime - Modern Approach
– Accomplices – participants before and during the
crime
– Accessories – participants after crimes are committed
Accomplices
• Participants Before and During a Crime are
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
Accomplices (continued)
• 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 (1969)
– Exception to the mere presence rule -- when persons have a legal duty
to act, presence alone can suffice for actus reus
• State v. Walden (1982) –mom looks on while man beats her son
and does nothing, jury convicted
Accomplice (continued)
• 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)
State v. Ulvinen (1981)
• Carol Ulvinen was convicted of first degree murder as
one who “aids, advises, hires, counsels, or conspires
with another…” Carol Ulvinen was asleep when her
son killed his wife in the home they all shared, but
stood by when he dismembered the body, and
subsequently assisted in clean-up and supporting her
son’s story to cover up the crime.
• Carol appealed on the basis that the evidence did not
meet the burden of proof beyond a reasonable
doubt to convict her as an accomplice to murder
• The state supreme court agreed
Summary of case holding
• Court held that actions after the crime don’t
transform behavior before and during the
crime into instigation, encouragement.
• The facts in this case were classic accessory
type liability—aiding someone after the crime
to destroy evidence, hide the crime
Accomplice (continued)
• 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.(1940)—defendant knowingly sold stolen silver
to Zucker but not for the purpose of sharing in Zucker’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 (1938)—Peoni sold counterfeit money to
Dorsey, who was caught trying to pass the fake money
elsewhere.
– Different result. Learned Hand decision that Peoni’s knowledge
that Dorsey possessed counterfeit money was not enough to
sustain criminal liability.
Accomplice (continued)
• Mens rea (cont.)
– Cases go back and forth as to whether the aider
and abettor has a purpose that 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)
Accessory After the Fact
• 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…but not always
• Sometimes different names: obstructing justice, hindering
prosecution, aiding in escape, etc.
Accessory (continued)
• 4 Accessory Elements
1. Accessory personally aided the person who
committed the crime (actus reus)
2. Accessory knew the felony was committed
(mens rea)
3. Accessory aided the person who committed the
crime for the purpose of hindering the
prosecution of that person (mens rea)
4. Someone besides the accessory actually
committed the felony (attendant circumstance)
State v. Chism (1983)
• Brian Chism was convicted of being an
accessory after the fact (murder) following his
uncle’s murder of his ex-wife. ..he had driven
from the scene, moved the body, and
discarded clothing.
• Chism appealed the conviction, arguing that
the evidence was insufficient.
• The court affirmed the conviction.
Summary of case holding
• Court reviewed whether there was sufficient
evidence for the jury to find that Chism was an
accessory after the fact to his uncle Ira Lloyd’s
crime of murder.
• 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
Dunn v. Commonwealth (1997)
• Dunn was convicted of being an accessory
after the fact to grand larceny…he claimed
that he was merely present in the vehicle
while others committed the thefts, and in his
statement he admitted taking the property to
the city in exchange for crack.
• Dunn claimed that the evidence was
insufficient, and proved only that he was a
passenger in a vehicle.
• The court disagreed.
Summary of case holding
• Again, the determination of whether a
person’s actions after a crime constitute
accessory liability involve a close review of the
facts in the case. Here, the court determined
that the evidence was sufficient to prove
Dunn’s was an accessory after the fact to the
prior thefts:
• He knew the others intended to steal (2 Occasions)
• Smoked Crack purchased with proceeds
• Went out with codefendants 3 days after 1st event
Vicarious Liability
• 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
Corporations
• History – Sutherland Identifying “White Collar” Crime 1939
• 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
Corporations (continued)
• 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)
Corporations (continued)
• Corporate liability via vicarious liability comes through
doctrine of respondeat superior or “let the master
answer”
• Corporations, legal fiction as person, can be sued and enter
into contracts – Dartmouth College v. Woodward (1918)
– New York Central and Hudson River Railroad Company v, US
(1909)
– 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.”
Corporations (continued)
• Power of Congress to regulate corporations
• New York Central…
– “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.”
U.S. v. Arthur Anderson, LLP
(2004)
• Arthur Anderson Accounting firm was
convicted of Obstruction of the Securities and
Exchange Commission investigation of the
Collapse of ENRON
• Despite actions indicating intent (shredding
documents, withholding records, ), the firm
appealed claiming reversible judicial errors in
instructions to the jury.
• The judgment was affirmed
Summary of case holding
• The court evaluated the jury instructions that the district
court gave to the jury during the trial. The defendant had
argued that the instructions were erroneous and effected
the jury’s verdict.
• The specifics were:
– that instructions’ definition of “corruptly persuades” was wrong
– that instructions’ definition of “official proceeding” was wrong
– The failure to give the instruction that “government had to
prove that Andersen knew that its destruction was unlawful”
affected the jury.
• Appellate court upheld convictions, found district court did
not err in giving or not giving the challenged instructions.
Individual Vicarious Liability
• Individuals are vicariously liable for their
agents
– 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)
State v. Tomaino (1999)
• Tomaino as the owner of an adult video store
was charged and convicted of disseminating
materials harmful to juveniles after one of his
employees sold a video to a 17 year old in a
sting operation.
• Tomaino appealed, claiming that he was not
present, and the statute under which he was
convicted required “personal” involvement in
the offense.
• The court agreed.
Summary of case holding
• “Criminal liability is rigidly and precisely limited to
those situations . . . specifically limited by
statute.”
• “Vicarious liability for another’s criminal conduct
can be delineated by statute; it cannot be
created by the courts“
• 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
Parental Responsibility Laws
• 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)
State v. Akers (1979)
• Parents were found guilty of violating a
snowmobile statute which made them
vicariously liable for the acts of their children
simply because of their status as parents
• The parents appealed, questioning the
constitutionality of the law.
• The court agreed
Summary of case holding
• Legislature didn’t specify any voluntary
acts/omissions by parents sought to be made
criminally responsible
• Due process requires that acts which are the
basis of criminal liability must be spelled out
in advance (courts imposing liability at trial
would be ex post facto violation)
• Holding parents liable simply because they
are parents violates due process