Chapter SevenParties to Crime and Various

Liability

Joel Samaha

Chapter Seven Learning Objectives

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.

Learning Objectives (cont.) 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 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 CrimeCOMMON LAW MODERN APPROACH

• 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

• 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• Accomplices – participants

before and during the crime• Accessories – participants

after crimes are committed

Accomplices 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 (cont.) 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

Accomplice (cont.) 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)

Discussion Activity

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/story-612329.html

Accomplice (cont.) 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.

Accomplice (cont.) 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)

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 Sometimes different names: obstructing justice,

hindering prosecution, aiding in escape, etc.

Accessory (cont.) 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)

Case: State v. Ulvinen

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.

Case: State v. Chism

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.

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 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 (cont.) 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 (cont.) 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.”

Corporations (cont.) 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.”

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)

Discussion ActivitySeveral 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?

Case: State v. Tomaino

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

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)

Discussion Activity

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/Parental-Responsibility-Chart.pdf

Case: State v. Akers

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