JurisdictionNorth Carolina

§ 30.06. Liability of the Secondary Party in Relation to the Primary Party

[A] General Principles

At common law, an accessory could not be convicted of the crime in which he assisted until the principal was convicted and, with the limited exception of criminal homicide, could not be convicted of a more serious offense or degree of offense than that of which the principal was convicted.110 Nearly all states have abrogated t hese rigid common law rules. It does not follow from this, however, that issues regarding the relationship between the primary party and secondary parties no longer arise, for they often do.

Accomplice liability is derivative in nature.111 This means that for an accomplice to be liable for an offense, there must be a primary party: that is, logically, for an accomplice to be guilty of a crime, there must have been a crime committed by another person from whom the accomplice's liability originates.112

What does it mean, however, to say that the primary party "has committed a crime" for which the accomplice may be held accountable? Some cases are straightforward. For example, it is no longer a procedural bar to the conviction of a secondary party that the primary party was not prosecuted for the offense. The non-prosecution of the alleged perpetrator of an offense does not in itself suggest that a crime did not occur. His non-prosecution might be the result of any one of countless factors extraneous to his guilt (e.g., death, flight from the jurisdiction, or immunity from prosecution).

Difficulties arise, however, when the primary party is acquitted of the offense. Does an acquittal imply that a crime was not committed? Not necessarily. For example, if P and S are charged with raping V, and V is unable to identify her attacker, but provides a clear identification of the rapist's accomplice, a jury could logically acquit P and convict S. P's acquittal does not imply that a rape did not occur, only that the jury had a reasonable doubt that P, rather than some unidentified person, was the perpetrator of the crime.113

Some acquittals, however, do suggest that a crime has not occurred. For example, if P is charged with stealing V's car, and he proves at trial that V consented to the taking, then no larceny occurred. Conceptually, P's acquittal precludes the conviction, at least at the same trial, of an accomplice to this non-offense.114

The next subsection deals with other acquittal-based circumstances in which it could be argued that a "crime" has not occurred in some sense, and yet S is convicted. An additional question, considered in subsection [C], is this: Under what circumstances, if any, may S derive more guilt than arises from P's conviction?

[B] Liability When the Primary Party Is Acquitted

[1] "Primary Party" as an Innocent Instrumentality

If D coerces X to commit a theft by threatening X's life, X will be acquitted of larceny on the basis of duress. Today, and according to common law principles, D may be convicted of larceny. X was D's innocent instrumentality. Therefore, D is the principal in the first degree of the offense.115 Conceptually, as D and X "were enemies in an adversarial relationship"116 and shared no common criminal intent, D's guilt is not founded on accomplice liability principles. Instead, D is directly liable for committing the crime through the instrumentality; D's guilt is not derived from another culpable person. X's acquittal, therefore, presents no bar to the conviction of the only culpable party.

[2] Acquittal on the Basis of a Defense

[a] Justification Defenses

Suppose that V unlawfully threatens to immediately kill P. S assists P to kill V. P is acquitted of murder on the ground of self-defense. Is S guilty in the homicide? Although case law in this area is sparse, the proper result seems evident: As P was acquitted because his actions were justified, S, who assisted in the justified act, should also be acquitted.117 Although V was killed, recognition of the justification defense of self-defense implies that no crime has occurred, or even that a positive good has resulted. In the absence of wrongdoing by P, there is no crime to impute to S.118

[b] Excuse Defenses

When the primary party is acquitted on the basis of an excuse (e.g., insanity), his acquittal should not bar a successful prosecution of a secondary party to whom the excuse does not extend. An acquittal on the ground of an excuse means that the actions of the primary party were wrongful, but that he was not responsible for them because of a personal excusing condition.119 If the primary party is guilty of all of the elements of the crime, and his conduct is otherwise wrongful (not justifiable), there is no policy reason why the secondary party should not be convicted of assisting in the wrongful conduct, assuming that the secondary party has no personal excuse of his own.120

For example, in United States v. Lopez,121 S assisted P to escape from prison. P sought to show at her trial that she fled the prison because of unlawful threats on her life. The prosecution did not object to P seeking to defend her actions on this ground, but it did resist S's efforts to introduce evidence of the threats as a basis for acquittal of S in his prosecution as an accomplice.

The court held that S's right to introduce such evidence depended on whether P's defense claim was founded on necessity (justification) or duress (excuse).122 As the court explained, and as considered in subsection [a], "[a] third party has the right to assist an actor in a justified act." Therefore, if P's claim was that she did the right thing by escaping, S was entitled to show that he assisted in this justified act. On the other hand, excuses "are always personal to the actor."123 If P's claim was that she did the wrong thing by escaping, but that she was not to blame because she was coerced, this was her personal excusing condition. As S was not personally coerced, he was not entitled to avoid conviction for assisting in an unjustified escape.124

[3] Acquittal on the Basis of Lack of Mens Rea

[a] In General

Suppose that a culpable secondary party assists a primary party to commit a wrongful act, but the primary actor is acquitted because he lacked the requisite mens rea. For example, consider Regina v. Cogan and Leak.125 Leak convinced Cogan to have sexual intercourse with Leak's wife by falsely telling Cogan that she would agree to the intercourse. In fact, Leak had compelled his wife to submit to Cogan. Cogan was acquitted of rape on the basis of then-existing English precedent that his unreasonable mistake of fact regarding the wife's consent negated the mens rea of the offense.126

In light of Cogan's acquittal, was Leak guilty of rape? The court answered the question affirmatively, providing two alternative theories. First, since Leak caused Cogan to misunderstand the attendant circumstances, Cogan was Leak's innocent instrumentality. Thus, Leak was the principal in the first degree who used Cogan's "body as the instrument for the necessary physical act."127 The difficulty with this analysis, however, is that it makes Leak guilty of raping his own wife, a conclusion that some courts are unwilling to reach, on the ground that rape is a "nonproxyable" offense.128

Second, the court opined that there was no reason why Leak should not be viewed as an accomplice of Cogan: "The fact that Cogan was innocent . . . does not affect the position that she was raped." It said further, "[n]o one outside a court of law would say that she had not been [raped]." In essence, the actus reus of rape was committed: The victim was forced to have sexual intercourse against her will. Therefore, a "crime" occurred. Cogan committed it. Leak encouraged it. Cogan's...

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