Sunday, June 17, 2012

MBE Fast Fact: Accomplice Liability

The MBE tests the common law, and, as such, that should be your primary focus when studying. But a question can present in which the modern view has to be applied, and so when distinctions exist, you should make note of them. One such distinction is in the area of accomplice liability.

At common law, parties to a crime included (1) principal in the first degree, defined as one who engaged in the act that constituted the criminal offense; (2) principal in the second degree, defined as one who aided, commanded or encouraged the principal in the first degree, and was present at the scene of the crime; (3) accessory before the fact, defined as a person who assisted or encouraged but was not present at the scene of the crime; and (4) accessory after the fact, defined as a person who with knowledge that the principal committed a crime, assisted him to escape arrest. At common law, conviction of the principal was required for conviction of the accessory.

Modern statutes have, for the most part, done away with the distinctions between the first 3 above; namely, principals in the first and second degree, and accessories before the fact. These three categories are generally referred to as "parties to the crime" and each can be convicted of the principal offense. Importantly, however, even in modern statutes, category 4, an accessory after the fact, is still treated differently than the others. In other words, punishment for that particular crime bears no relationship to the punishment for the principal offense.


  1. Hi Sean, can you discuss mistake of law, fact, factual impossibility, and legal impossibility, as well as voluntary intoxication, and when they are relevant as defenses to crimes, or to negate mens rea?

  2. This is a good question, but it may require a lengthy answer; I'll address it as a separate blog post.