Criminal Agency of the Defendant

• Jurisdiction: Maryland

VI. Criminal agency of the defendant

A. Defendant as the actual perpetrator of the prohibited actus reus

Usually, criminal agency of the defendant is established by a direct act, or failure to act, of the defendant. When the defendant is the actual perpetrator of the prohibited actus reus, the defendant is the principal in the first degree.

Under some circumstances, even if the defendant did not actually perform the prohibited actus reus, the act is deemed to be that of defendant. Where the act is committed by "an inanimate agency," Johnson v. State, 303 Md. 487, 510 (1985), e.g., the defendant sets a deadly trap that kills a trespasser when the defendant was not home and an intruder entered. Or where the act was committed by an innocent human agent of the defendant, e.g., a child or someone who is mentally incompetent. 1 LaFave, Substantive Criminal Law § 13.1(a).

B. Defendant who is not the actual perpetrator of the prohibited actus reus

If someone other than the defendant is the actual perpetrator of the actus reus, the defendant may still have criminal liability. A defendant has criminal liability if he or she: (1) assists, counsels, or encourages another to commit a crime (commonly referred to as "aiding and abetting"); or (2) acts as an accessory before the fact; or (3) acts as an accessory after the fact. Under the doctrine of "accomplice liability," the defendant also has criminal culpability for additional crimes committed by an accomplice during the commission of an intended crime.

1. Principal in the second degree

A second degree principal "is one who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive," State v. Williams, 397 Md. 172, 193 (2007), abrogated on other grounds by Price v. State, 405 Md. 10 (2008). An accessory before the fact "is one who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration." Williams, 397 Md. at 193. Although there is a distinction between an accessory before the fact and a principal at common law, in Maryland that distinction is abrogated by statute. Md. Code Ann., Crim. Proc. § 4-204.

a. Aiding and Abetting

A defendant who "encourages, aids, abets, or assists the active perpetrator in the commission of the offense, is a guilty participant, and in the eye of the...