§ 30.05 ACCOMPLICE LIABILITY: MENS REA

• Jurisdiction: United States

§ 30.05. Accomplice Liability: Mens Rea⁷⁶

[A] In General

Courts frequently state that a person is an accomplice in the commission of an offense if he intentionally aids the primary party to commit the offense charged.⁷⁷ This statement is sometimes broken down into "dual intents": (1) the intent to render the conduct that, in fact, assisted the primary party to commit the offense; and (2) the intent, by such assistance, that the primary party commit the⁷⁸ offense charged.⁷⁹ Thus, in a robbery prosecution, in which S hands a gun to P, which the latter uses in a robbery, S would be an accomplice if he intentionally provided the gun to P (the first intent), and S did so with the intention that P commit the robbery (the second intent).⁸⁰

This formulation usually is adequate, because most offenses are defined in terms of "intent." However, in some cases, primarily when a person is charged as an accomplice in the commission of an offense for which recklessness or negligence suffices for liability, it is necessary to be somewhat more precise about the mental state.⁸¹ Therefore, although not all courts agree on the matter, it is more precisely correct to state that an accomplice must possess: (1) the intention to do the acts that constitute the assistance; and (2) whatever mental state is required for commission of the offense, as provided for in the definition of the substantive crime.⁸²

[B] Significant Mens Rea Issues

[1] The Feigning Accomplice

It is frequently said that, to be an accomplice, a person "must not only have the purpose that someone else engage in the conduct which constitutes the particular crime charged, but the accomplice must also share in the same intent which is required for commission of the substantive offense."⁸³ It is usually reasonable to infer that when a person intentionally assists another to engage in the conduct that constitutes an offense, he does so because he wants the other person to succeed in his endeavor, i.e., he shares the criminal intent of the primary party. Sometimes, however, this inference is inaccurate. Matters of complexity arise, for example, when a police officer or private person joins a criminal endeavor as an "accomplice" and feigns a criminal intent in order to obtain incriminating evidence against the primary party or in order to ensnare the other in criminal activity.

Consider the classic case of Wilson v. People.⁸⁴ S and P, drinking partners, got into an argument over S's assertion that P had stolen his watch. A conversation followed in which the two men agreed to steal property from V's drugstore. In furtherance of the agreement, S assisted P to enter V's store. While P was inside, S called the police and then returned to the drugstore and took property handed to him by P. Before the parties could leave, the police arrived and arrested S and P for burglary and larceny.

S's conviction as an accomplice in the two offenses was overturned by the state supreme court. Some of its reasoning was unpersuasive. It analogized S's conduct to that of a detective who enters an existing criminal endeavor in order to "explode" it. S, however, hardly fit that characterization. He did not join a crime already in play; he helped devise the plan, apparently in order to set up P for arrest, in retaliation for the latter's alleged theft of S's watch.

So, was S properly acquitted as an accomplice in these crimes? S had the intent to assist P to engage in the conduct that (on P's part) constituted burglary and larceny; that is, he intended to assist P to enter V's store and to take property out of it. But did S possess the second (and, ultimately, key) mens rea of an accomplice, namely, the mental states required for commission of the offenses of larceny and burglary?

Larceny requires a specific intent to deprive another person of his property permanently. Although P possessed this intent (and, therefore, was guilty of larceny as the perpetrator), S's act of calling the police demonstrated that he did not intend for V to be deprived of the property permanently. Consequently, S lacked the specific intent of larceny, and was properly acquitted as an accomplice of this offense.

The burglary charge is a more difficult issue. Plausibly, S should have been convicted of burglary as an accomplice. The argument would run as follows: S knew that P intended to enter V's drugstore for the purpose of committing larceny (which made P guilty of burglary), and with that knowledge and for the very purpose of securing P's conviction for burglary, S assisted P to enter V's drugstore—the social harm of the burglary. Therefore, S did want a burglary (as distinguished from a larceny) to occur, and thus should be convicted for assisting in that offense.

But there is a case for relieving S of responsibility for the burglary. The reason goes back to the mens rea requirement, as stated in subsection [A]: an accomplice must possess two states of mind: (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and (2) the mental state required for commission of the offense, as provided in the definition of the substantive crime. Here, S possessed the first intent: As noted in the preceding paragraph, he intended to assist P to engage in the conduct (entering the drugstore) that constituted the social harm of burglary. But S did not possess the second mental state: Because S did not intend for a larceny to occur, he personally lacked the "specific intent" requirement of burglary. He did not share with P the felonious intent that constitutes the "specific intent" that converts a criminal trespass into a burglary.

The latter analysis does not provide a ready-made escape hatch for persons to join crimes in order to arrest or ensnare suspects. Wilson was an unusual case because both of the offenses charged are "inchoate offenses in disguise,"⁸⁵ and also required proof of specific states of mind that S lacked. However, if S had intentionally assisted P to kill V, S would be guilty of murder because he shared with P the intent for the latter to kill V. The fact that S's motive for wanting V dead was to set up P for arrest would not negate the requisite mens rea.

[2] "Purpose" Versus "Knowledge": The Meaning of "Intent"

The mens rea of accomplice liability is usually described in terms of "intention." As with the crime of conspiracy, however, there is considerable debate regarding whether a person may properly be characterized as an accomplice if he merely knows that his assistance will aid in a crime, but he lacks the purpose that the crime be committed. For example, suppose that S rents his house to P, the manager of an illegal gambling enterprise.⁸⁶ Is S an accomplice in P's illegal activities if he rented the property with knowledge of his tenant's intended activities, or must it be proved that he shared P's criminal purpose?

The policy arguments for and against imposing liability on the basis of knowledge, rather than purpose, have been summarized in the context of conspiracy law.⁸⁷ Apparently most courts hold that a person is not an accomplice in the commission of an offense unless he "share[s] the criminal intent of the principal; there must be a community of purpose in the unlawful undertaking."⁸⁸ In the oft-cited words of Judge Learned Hand, the complicity doctrine requires that the secondary party "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used—even the most colorless 'abet' — carry an implication of purposive attitude towards it."⁸⁹ Nonetheless, the law is mixed, and some courts permit conviction on the basis of knowledge.

As a sign of the lack of consistency in this area, consider the United States Supreme Court's recent venture into the debate in Rosemond v. United States.⁹⁰ On the one hand, Justice Kagan, writing for the majority, quoted Judge Hand's words, set out above, even describing them as "the canonical formulation of [the] needed state of mind" to be an accomplice. That seems to support the majority rule that purpose, rather than knowledge, is the requisite state of mind. But, in the very next paragraph, she stated that the...