Accomplices

Often the principal and helper have divergent levels of commitment to the contemplated crime. For example, the lessor of a hotel room that the lessor knows the lessee will use for gambling, drug distribution, or prostitution may well know to what unlawful use the premises will be put. But the lessor still may not, in the words of the celebrated Judge Learned Hand, have a sufficiently "purposive attitude towards" the venture so as to be "associated" with it in a way that demonstrates "that he wishes to bring [it] about" (United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). Instead, the lessor may even prefer to lease the room to a law-abiding lessee (that way the lessor can avoid trouble) but is willing to rent to anyone who can pay the going rate. In such a case, the lessor's contribution to the crime counts as aid, but unless there is reason for us to believe that the lessor is somehow in on the scheme, the lessor's aid falls short of the "purposive attitude" toward the principal's crimes that the law of accomplice liability requires. No doubt a case of accomplice liability is made out if the lessor takes a commission from the lessee's venture or charges the lessee extra to insure against the risk the lessor incurs by leasing to a criminal who may for obvious reasons be bad for the lessor's business.

This means that a helper cannot be accidentally liable for or caught up in the principal's crimes, even when the crime that the principal has committed is one for which accident is not necessarily an excuse. For example, a (principal) driver can be convicted of drunk driving even if it is perfectly reasonable for him to believe he has had too little to drink to have become drunk. To be accomplice to the driver's drunk driving, however, the helper must do more than merely fail to take cost-justified precautions against doing or saying anything that may make the principal's drunk driving more likely. Instead, the helper must mean to facilitate drunk driving; he must, in Judge Hand's terms, demonstrate a purposive attitude toward bringing about the crime in question. So a bartender or social host may in fact be assisting drunk driving by keeping an inaccurate tally of how much their guest or customer has had to drink, they may know that such a result is likely, and nonetheless not have within the letter of the law helped drunk driving—not if such an outcome is not the bartender or social host's intention.