Accomplices

When the principal departs "upward": the helper's liability for the principal's excess. Assuming that there is at least a crime toward which the helper has the requisite intention or "purposive attitude," then what happens if the principal commits other crimes in addition to or instead of the crime or crimes that the helper means to help? In evaluating the helper's responsibility for the principal's excessive criminality, the law is understandably unsympathetic to the claims of the too-finicky helper, who complains at trial that the principal deviated, however slightly, from the common scheme. Therefore if the helper asks the principal to take the victim's gold watch by snatching it from the victim's wrist, but the principal obtains it by threatening to expose the victim's criminal record to his golf club, a court would not let the helper off the hook for being an accomplice to the principal's blackmail. The criminal objective of stealing the watch remains the same—the principal's deviation only in means fails to demonstrate a lack of attunement between the parties. If, however, the helper lends a crowbar to the principal, believing that the principal intends to enter a house in order to steal a television, the helper will be off the hook for playing a role in, say, arson, if that is what the principal unexpectedly does instead upon entering the house. So long as there is attunement as to "essential matters" or so long as the crime in question is of the same "type" or within the "contemplation" of the range of crimes anticipated by the helper, the principal's departures will not save the helper from liability for what the principal ultimately does (Northern Ireland v. Maxwell, (1978) 3 All E.R. 1140; Regina v. Bainbridge, (1960) 1 Q.B. 129). Determining just what it was that was contemplated demands thorough knowledge of the enterprise, a matter that is made easier when there is a conspiracy: the more formal the better.

When the principal exceeds the helper's expectations, still a minority of courts have expanded the liability of the helper for the principal's excesses (People v. Luparello, 231 Cal. Rptr. 832 (Ct. App. 1987)). It is safe to say that decisions which hold helpers on the hook for their roles in, for example, intentional murder by a principal when the helper asked the principal to commit assault or at most kidnapping, reveal the most extended or outermost limits of a helper's liability. Yet the overwhelming majority of courts regularly do make this stretch when principals commit intentional or accidental killings—even unforeseeably or contrary to a carefully thoughtout plan—during the course of certain "inherently dangerous felonies," such as burglary, robbery, arson, rape, kidnapping, and prison escape (Model Penal Code § 210.2(1)(b)). As a result, a getaway driver who means to aid in robbery is liable for the "murder" of a store clerk who dies of a heart attack when confronted by the armed principal robber. Outside of this area of homicide, known as "felony murder," helpers are typically held liable only for their principals' actions that are within, or at least adjacent to, their common scheme.

When the principal departs "downward": The helper's relation to the principal's excuses. So far we have been focusing entirely on helpers' excuses that have to do with what the helper knows, intends, and does. But often the principal will have an excuse that will allow him to avoid altogether, or at a minimum reduce his responsibility for, what he has done. In such cases, courts have developed strategies for establishing the connection, if any, between the principal's full or partial excuses and the helper's liability.

Take for example a version of Shakespeare's Othello, in which Iago calmly and maliciously drives Othello into a blind rage and incites him to kill his wife Desdemona by making Othello believe (falsely) that Desdemona had been unfaithful to him. Let's assume that Othello's rage would make him eligible for the partial excuse of "provocation" or "extreme emotional disturbance," which precludes a murder conviction and instead makes his crime more accurately described as the less-grave offense of manslaughter. The excuse is only partial because Othello still deserves some punishment; it is not as though Iago acted (completely) through him. Othello was in a rage, but still knew what he was doing—knew that he was retaliating against his wife. While Othello is still partially responsible for what he has done, his rage reduces "down" to manslaughter an otherwise murderous act. Consequently Othello's punishment will be five or so years rather than the life imprisonment he would have been eligible for had he been thinking more clearly at the time of the killing.

But what is Iago's relation to Othello's partial excuse? There are four options open to us here, each of which is expressed in at least some Anglo-American court opinions: (1) allow Othello's rage to benefit Iago on the ground that a helper's liability cannot exceed whatever crime actually takes place. This view is appealing to the extent that it enforces the notion that a helper's liability is derivative of the principal's—the helper cannot help a crime that does not take place, whatever the reason may be that it fails. This view is unappealing, however, to the extent that it lets the helper borrow (perhaps unfairly) defenses such as intoxication, mistake, insanity, and duress, which may be utterly personal to the principal; (2) allow Othello's rage to benefit Iago only if Othello was "justified" in part in killing Desdemona as opposed to merely "excused." This has the appeal of letting the helper exploit a principal's actions that, at least in part, "interfere with the rights of no one." Unfortunately, to give the helper this benefit not only requires taking a position on which defenses are in fact justified as opposed to excused, but also threatens the unwelcome result of allowing a helper to claim he was justified in doing something when the very facts that make the act justified are unknown to him (as in battering someone whom unbeknownst to the batterer the principal had the right to repel in self-defense); (3) deny Iago the benefit of Othello's rage by "grafting" Othello's action onto Iago's intention in order to make out a case of murder on Iago's part and manslaughter on Othello's. While this way each party would have to raise his own defenses, the problems are considerable in that this would permit a defendant to be convicted as accomplice to a murder when no murder took place; and (4) conclude that Iago has attempted murder while Othello has committed manslaughter. This position (Model Penal Code § 5.01 (3)) recognizes that the helper's help has in an important sense failed or misfired (thus the reduced liability) and features the additional benefit of reflecting that accomplice liability is more about what the helper puts himself to than what he actually accomplishes. Whichever of these four strategies a jurisdiction adopts for dealing with problems of a helper's liability for the actions of a principal who may have a full or partial defense will determine whether the helper is punished even though the principal is not, whether the helper can borrow a principal's excuses (or his justifications), or a position somewhere in between.