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Aiding and Abetting/Accessory

When a crime occurs, police and prosecutors usually focus their efforts on identifying the individual(s) who committed the criminal act. This person is often called the principal offender. Sometimes, law enforcement expands its investigation into those accused of aiding and abetting the commission of the crime. Police may also pursue charges against those who served as an accessory and helped a criminal after the fact.

A criminal charge of "aiding and abetting" or serving as an accessory after the fact of a crime derives from accomplice liability (or complicity). Most states permit criminal charges against anyone who helps another in the commission of a crime. Of course, legal definitions and distinctions may vary by state. A person charged with these accomplice crimes may not be present when the crime itself is committed. Still, they often have knowledge of the crime before or after the fact. They may assist the principal offender with advice, actions, or financial support. Depending on the degree of involvement, the accomplice's participation in the crime may rise to the level of conspiracy.

For example, Andy draws a detailed floor plan of a bank for Dan, knowing of Dan's intention to rob it. After Dan commits the robbery, Alice agrees to let him store the stolen money at her house. Both Andy and Alice can face criminal charges. The state can claim Andy was an aider/abettor and that Alice acted as an accessory after the robbery.

How Are Aiding, Abetting, and Accessory Defined?

As with all crimes, the specific elements of the crime depend on the law where the crime occurred. Accomplice liability exists in both federal and state law. In general, aiding refers to differing degrees of support, and abetting involves encouragement. Serving as an accessory usually involves actions taken to protect the perpetrator after the crime is committed.

If you were to serve on a jury in a federal court, the court may instruct you that the crime of aiding and abetting requires the prosecution to prove beyond a reasonable doubt that:

  1. A crime was committed;
  2. The accused intentionally aided, counseled, commanded, induced, or procured the person committing the crime;
  3. The accused acted with the intent to facilitate the crime; and
  4. The accused acted before the crime was completed

Similarly, the court may instruct you that the crime of accessory after the fact requires proving that:

  1. The accused knew that a person committed a crime; and
  2. The accused assisted that person with the specific purpose or design to hinder or prevent that person's apprehension, trial, or punishment

The exact language and elements may be different under state law. In either case, the government's failure to sufficiently prove any of these elements means that you cannot be convicted for these crimes.

When Do Police and Prosecutors Charge Complicity?

The decision to charge accomplice crimes may vary with the type of crime and the government's efforts to achieve a just result. Although accomplice liability may occur with many crimes, law enforcement will likely investigate it in felony rather than misdemeanor cases. For example, the government may charge several accomplices in a large-scale white-collar crime operation or drug crime. This will likely result in one or more defendants' cooperation in prosecuting a major leader of a criminal enterprise. The government may not spend such resources in pursuing an accomplice of a DUI or a minor shoplifting incident.

Due to the serious public safety concerns related to homicide and sex crimes, law enforcement will often seek charges against all principal offenders and their accomplices for these offenses.

Can Someone Withdraw From a Criminal Offense?

Even if you've aided and abetted someone before they commit a crime, your state may allow for a legal defense called abandonment or withdrawal. In essence, this means that you have ceased your support and encouragement for the crime before the crime occurs. This can be difficult to prove unless there is some clear evidence of repudiation (such as a communication to the perpetrator or a warning to the potential victim). Some jurisdictions may require an attempt to stop the crime from taking place by, for example, notifying law enforcement.

Even if your actions don't clearly constitute withdrawal, efforts to remove yourself from a crime before it takes place can help to mitigate the punishment you might face. It also might save you from having a criminal record. Depending on the situation, these efforts could lead the government to use prosecutorial discretion and not charge you with a crime. This could happen when, for example, you're facing threats to your safety by coming forward to report a pending crime.

State Examples of Accomplice Crimes

California provides for accomplice crimes in its criminal code. The California Penal Code sets forth accomplice crimes of aiding and abetting the commission of a crime at both the felony and misdemeanor levels. An accomplice who is not present at the crime can still be charged for advising or encouraging its commission. California reserves accessory after-the-fact liability for felony offenses. A violation can occur when an accomplice harbors, conceals, or aids a principal offender's escape or avoidance of arrest, trial, conviction, or punishment.

In Ohio, state law identifies accomplice liability under its complicity statute. Complicity charges carry the same penalties as the principal offense. The crime of complicity includes:

  1. Acting with the same intent level as the principal offender
  2. Soliciting or procuring another to commit the offense
  3. Aiding or abetting another to commit the offense
  4. Conspiring with another to commit the offense
  5. Causing an innocent or irresponsible person to commit the offense

Ohio places the accessory crime in a separate statute called "obstructing justice." This law may apply to a felony or misdemeanor crime. If the criminal act at issue was a felony, then obstructing justice is a felony. If the criminal act was a misdemeanor, then obstructing justice is a misdemeanor.

Domestic Violence Protection Orders

In domestic violence cases, the victim often obtains a protection or restraining order against their abuser. These court orders may be issued in the criminal case or as a stand-alone remedy in family court. In either case, when the abuser violates the restraining order (by having contact with the victim or committing a trespass at the victim's home), the state can charge the abuser with a crime.

Sometimes, given the dynamics of the domestic violence relationship, the victim may willingly have contact with the abuser despite the court order. On some occasions, law enforcement may consider charging the victim with an accomplice crime. Can a domestic violence survivor be charged with aiding and abetting a violation of a restraining order? Courts have generally said no.

In State v. Lucas (2003), the Ohio Supreme Court held that a protected party under a domestic violence restraining order could not be prosecuted for aiding and abetting a violation by the party who was subject to the order. The court found the legislature chose not to punish a protected party's conduct as it provided no penalty for it in the protection order statute. It also found that the statute itself stated that an invitation by a protected party did not waive or nullify the order.

Further, it would be contrary to the intent of the protection order law to permit prosecution of the class of persons the law sought to protect. To prove a violation of a protection order, the state must show that the restrained party recklessly violated a term of the order. The conduct of the protected party is irrelevant to the state's case.

Get Professional Help With Your Criminal Case

The fact that you weren't there when the crime was committed won't protect you from prosecution for aiding and abetting charges. These accomplice crimes can be tricky and usually boil down to what you knew and when you knew it. If you have some knowledge of a crime before or after the fact, consider seeking legal advice. You can speak with an experienced criminal defense attorney who can advise you and help protect your interests.

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