Accessory to Conspiracy
Conspiracy is an agreement between two or more persons to engage jointly in an unlawful or criminal act. It can also be an act that is innocent in nature but becomes unlawful when accomplished by a combination of actors. In other words, conspiracy occurs if two or more individuals act together to commit a crime or to commit a lawful act by unlawful means even if they are not aware of each other’s participation or role in the conspiracy.
Although conspiracy is considered a common law offence, it is treated as a crime under many jurisdictions when the conspiracy to commit a particular offence occurs. The crime of conspiracy is defined as two or more persons conspiring to commit any crime, together with proof of the commission of an overt act to effect an objective of the agreement. Conspiracy is a specific intent crime. A conspirator remains a participant in the conspiracy unless and until he/she communicates a decision to renounce the agreement. Similarly, a person who joins a conspiracy after its formation is equally guilty with the original conspirators.
The main elements of conspiracy are a specific intent, an agreement with another person to engage in a crime to be performed; and the commission of an overt act by one of the conspirators in furtherance of the conspiracy. The essence of a conspiracy is the agreement to commit a crime that makes a conspirator responsible for the foreseeable acts of another.
A federal statute makes conspiracy a crime if two or more persons conspire to commit any offence against the United States or to defraud the United States or any agency in any manner or for any purpose and for one or more of such persons to do any act to effect the object of the conspiracy. Some jurisdictions do not recognize the crime of attempted conspiracy.
However, the liability of a criminal conspiracy is well distinguished from accomplice liability. The relevant difference between conspiracy and accomplice liability is that while an agreement is an essential element of the crime of conspiracy, aid sufficient for accomplice liability can be given without any agreement between the parties. Accomplice liability requires knowledge and a completed crime, whereas a conspiracy requires intent and a substantial step towards completion. In some jurisdictions, an agreement or combination between two or more persons to commit a criminal conspiracy is punishable as a misdemeanour while some other statutes classify conspiracy as a felony.
However, an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. This is known as Wharton’s Rule. Before the application of Wharton’s Rule, it must be shown that the offence required the active culpable participation of two people. At the same time, Wharton’s rule is not applicable if the substantive offence that is the object of the alleged conspiracy can be committed by a single person.
A criminal charge of aiding and abetting or accessory can usually be brought against anyone who helps in the commission of a crime, though legal distinctions vary by state. A person charged with aiding and abetting or accessory is usually not present when the crime itself is committed, but he or she has knowledge of the crime before or after the fact and may assist in its commission through advice, actions, or financial support. Depending on the degree of involvement, the offender's participation in the crime may rise to the level of conspiracy.
For example, Andy draws a floor plan of a bank, 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 be charged with aiding and abetting, or acting as accessories to the robbery.
How Are Aiding, Abetting, and Accessory Defined?
As with all crimes, the specific elements depend on the state where the crime takes place. In general, aiding refers to differing degrees of support and abetting involves encouragement. 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, you would be instructed that the crime of aiding and abetting requires the prosecution to prove, beyond a reasonable doubt, that:
- A crime was committed;
- The accused aided, counselled, commanded, induced or procured the person committing the crime;
- The accused acted with the intent to facilitate the crime; and
The accused acted before the crime was completed.
Similarly, you would be instructed that the crime of Accessory After The Fact requires proving that:
- The accused knew that a person committed a crime; and
- The accused assisted that person with the specific purpose or design to hinder or prevent that person's apprehension, trial or punishment;
- A failure to sufficiently prove any of these elements, or those that may apply under state law, means that you cannot be convicted of these crimes.
Is There A Way Out?
Even if you've aided and abetted someone before they commit a crime, your state may allow for a withdrawal defence to criminal charges against you. In essence, this means that you have stopped your support and encouragement for the crime before it has become unstoppable. However, 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 punishments you might face. Depending on the situation, these efforts could even lead the government to use prosecutorial discretion and not charge you with a crime. This could happen where, for example, you're facing threats to your safety by coming forward to report a pending crime.
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