16.30 - C. Recapitulation Of The Accomplice Rule

• Jurisdiction: New York

C. Recapitulation of the Accomplice Rule

“[E]vidence corroborating accomplice testimony ‘need not prove the commission of the crime. It is enough if the evidence shown to connect the defendant with the crime [reasonably] satisfies the jury that the accomplice is telling the truth.’”²³¹⁸ The fact that a witness is an accomplice does not affect the admissibility of his testimony²³¹⁹ or his competency as a witness.²³²⁰ Corroboration evidence need not lead exclusively to an inference of guilt, nor that a defendant committed the crime charged or even an element thereof.²³²¹ The corroboration requirement is not an element of the offense charged; it is a protective procedural device.²³²² Corroborating evidence need not be direct; it may be circumstantial.²³²³ It need not, per se, be evidence of wrongdoing or outright criminality.²³²⁴ One form of corroborating evidence is documentary.²³²⁵ Admissions by a defendant—oral or written—before, during or after the crime obviously connect the defendant with the commission of the crime.²³²⁶

If the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed; if different inferences may be drawn from the evidence, the question must be left to the jury.²³²⁷

As previously stated, an accomplice is a witness who may reasonably be considered to have participated in the offense charged, or an offense based on the same or some of the same facts or conduct that constitute the offense charged. This definition begins with the caveat that “reason” be employed in applying it to the facts of a given case. To be an accomplice, one must have taken part in the preparation or perpetration of a crime with the intent to prepare and participate in the crime. One simply cannot be an accomplice to a crime without the requisite criminal intent. For example, one cannot intend something if one never knew it was occurring. One may not be made an accomplice nunc pro tunc to a crime already completed without one’s knowledge or participation.²³²⁸

The corroboration-accomplice rule is restricted to the limits of its language. Prior to enactment of the final bill, three drafts of the Criminal Procedure Law eliminated the accomplice rule. The drafters substituted two new subdivisions. One required the trial court to instruct the jury as to the bias and interest of an accomplice; the other gave New York its first statutory definition of an accomplice. They were supposed to be complementary sections, but the final bill reverted to the old corroboration rule, thereby mismatching § 60.22(2) with § 399 of the former Code of Criminal Procedure.²³²⁹ The new accomplice rule has been criticized by Wigmore: “It is impossible and...