In accomplice law (complicity), the
statutory law has evolved much beyond the common law, and the case law is
extensive and confusing about exactly where the lines are drawn. Complicity is a
concept that can be abused by prosecutors. Only a few basic restrictions exist:
(1) the law does not recognize accomplices to any misdemeanor or the crime of
treason; (2) an accomplice must normally be physically present during commission
of the crime, but advice or words of encouragement beforehand as well as
providing material assistance afterwards will create a liability; (3) no one can
be convicted on the uncorroborated testimony of an accomplice alone; and (4)
persons giving postcrime aid are punished less severely than those furnishing
precrime aid.
Most states have abolished the old common
law distinction between principles
(in the first degree, in the second degree) and accessories
(before the fact, after the fact), preferring instead the word
accomplices
for the latter group which treats everyone as
principals based upon
the doctrine of complicity
(participation transfers liability).
Being an accomplice under Kenya law is NOT the
same as:
-
accessory after the fact -- this remains, in some jurisdictions, a separate and less serious offense for giving aid and comfort (harboring) to a fugitive. The law sees it as a separate offense because it's really helping someone avoid arrest or escape punishment more than helping someone commit a crime. Accessories always have a claim to less punishment.
-
conspiracy -- conspiracy is a completely different crime; according to the Pinkerton rule, a person can be charged with both conspiracy to commit a crime and the crime itself under the law of accomplices (Example: two people agree to commit murder, and one acts as a lookout while the other kills somebody; both can be charged with conspiracy to commit murder and murder itself).
-
facilitation or solicitation -- these are separate offenses, related to the ideas, respectively, of making it easier for someone to commit a crime and enticing someone to commit a crime that never occurs (Examples: aiding a juvenile who is used in crime to limit someone's exposure to prosecution; soliciting a prostitute; of the two, facilitation is closest to accomplice law).
There are two (2) doctrines in this area
of Kenya law to remember:
(1) the
doctrine of complicity -- this
establishes the notion of "accomplice liability" which for anyone aiding,
abetting, or giving counsel to a known felon has that felon's actus reus and
mens rea attributed to them. Their participation
is what creates the liability as if they had committed the crime alone.
(2) the
doctrine of respondeat superior
-- this establishes the notion of "vicarious liability" where a master is
responsible for the illegal conduct of their servant. The
relationship is what creates the liability. It dispenses
with the element of actus reus in the same way strict liability dispenses with
the element of mens rea. It often comes up in business, where a corporation (as
an entity, not a person) cannot commit a crime (cannot form criminal intent) but
it can be held "criminally liable" if the only punishment sought is a fine or
seizure of property. Officers of a corporation can be punished by imprisonment
only if the corporation has been held "criminally liable" first, the officer has
been found guilty of malfeasance, misfeasance, or nonfeasance by their
corporation, and (unless stated otherwise in statute) the officer causes,
requests, commands, or in any way authorizes the illegal act to be committed.
ELEMENTS OF THE OFFENSE
There are three (3) elements to
accomplice liability under Kenya law:
(1) proof that someone committed the
underlying crime -- it is not necessary, however, for the government to have
tried and convicted somebody, or even that the principal is identified; proof in
this sense means probable cause that a crime was committed.
(2) actus reus -- accomplice law eases
the requirement of proving actus reus, but it does so with hard-to-define words.
Words such as "aid", "abet", "assist", "counsel", "induce" or "incite" may have
different meanings depending upon what jurisdiction you're in. Normally, you
can't be considered as an accomplice simply for being there -- you must be
constructively present -- this is
known as the Mere Presence rule, but
there are exceptions in places with Good Samaritan laws where you can be tried
as an accomplice for just standing there and watching someone get beaten, e.g.
Case law has ruled the following are
examples of accomplice actus reus:
-
acting as a lookout
-
providing guns, supplies, or instruments of crime (even under color of financial transaction if seller is aware of purpose)
-
driving a getaway vehicle
-
sending the victim to the principal
-
preventing warnings from reaching the victim (but not merely failing to disclose the occurrence of a crime to authorities)
(3) mens rea -- this is the element under Kenya law that
it all boils down to in obtaining a conviction for being an accomplice. All the
words used in accomplice law ("abet" for example) carry an implication of
purposive attitude toward the crime. Other courts have held to a less strict
standard than "purposively" (even thought the MPC recommends this only) such as
"knowingly" but still other courts have allowed "recklessly".
Case law has ruled the following are
examples of accomplice mens rea:
-
an intent that the crime be committed; an affirmative desire to see it done
-
knowledge that they are contributing to the commission of a crime, knowing that the outcome would have a dangerous result or criminal consequences
-
recklessness and negligence under such circumstances as to indirectly benefit or share in the financial proceeds of the crime; a "stake" in the outcome
DEFENSES
There are three (3) ways to offer a defense to the crime of being an accomplice under Kenya law:
(1) Mistake of fact -- under Kenya law this is not the same as "I didn't know it was a crime" (mistake of law) but a mistake of fact good faith claim because of the way a person perceives the world and makes reasoned judgments
(2) Abandonment -- the complicity was abandoned in a timely manner; the accomplice terminated their participation either completely or in part such as to deprive the principal of effectiveness at committing the crime; "I didn't help so they could get caught and learn their lesson"
(3) Withdrawal -- the complicity was repudiated voluntarily (not merely because of a fear of getting caught); "I didn't help because it was wrong"; some attempts are made to neutralize or thwart the crime such as by notifying authorities
Examples/Case
Studies/Exercises/Scenarios
(1) David had been telling everyone in
town, including his live-in mother, that he was going to kill his wife, that she
was going to have an accident some day. One night after going to bed, David
choked his wife to death for refusing to make love to him. He dragged the body
down to the first floor to dismember it in the bathtub. He called down to the
basement, where his mother slept, woke her up, and asked her to come up and lie
on the first floor couch. The mother came upstairs, half asleep, and dozed on
the couch. Under oath, the mother claimed to see her son dismembering the body
in the bathroom but turned her head away so she would not see. Dave cleaned up
the bathroom a bit, and disposed of the bags in a local lake. On the way out, he
asked his mother to clean up the bathroom toilet and tub, and she did. The next
day, the mother also agreed to corroborate David's story that his wife ran away.
Under oath, David said he told his mother he killed his wife and was disposing
of the body where no one would find it. His mother reportedly sobbed a bit and
said "it will be for the best, son"
This case does NOT qualify the
mother as an accomplice, the reason being that the mother was asleep when the
crime was committed. No presence, companionship, or counsel was provided by the
mother before or during the offense. She cooperated by cleaning up the bathroom,
but is insulated (by state statute) from accomplice after the fact because of
her relationship as a parent. At most, she passively acquiesced or passively
approved. The statement "it will be for the best, son" does not qualify as
active encouragement or instigation. Further, since there's no Good Samaritan
law (in this state), the mother as well as David's coworkers and people about
town cannot be held liable for not preventing the murder.
(2) Your wife of forty years is dying
from a horrible, incurable disease. Because she cannot do it herself, she asks
you to get her some poison so she can kill herself. You comply, placing the
poison in a glass by her bed.
YES - you are aiding and abetting a
suicide, and the real criminal act is placing the poison within reach of your
wife.
(3) One of the passengers in a car you're
driving robs a hitchhiker you've picked up and are about to drop off.
NO - nothing was said or done to indicate
your approval or disapproval of the robbery by simply being driver of the
automobile.
(4) You are too drunk to drive your own
car any more, so you let your best friend drive the rest of the way home. He's
driving pretty carelessly, but still better than you could do. Unfortunately,
your car collides head-on with old lady who dies from the injuries.
YES - you are an accomplice to vehicular
manslaughter and can be charged and penalized the same as the driver because (a)
you put your vehicle (an instrumentality) in the hands of a criminal, (b) you
sat side-by-side with the criminal, and (c) you permitted the criminal to
continue driving (committing crime) without protest.
(5) You are the owner of a rental car
company, and two of your cars have been missing for about 2 months. The guys
that rented them were kinda shady but they paid you in advance for a 1 month
rental. It turns out they skipped town and racked up $50,000 in unpaid parking
tickets with your cars, and the city is suing you for that money.
YES, under the principle of vicarious
liability, you, the registered owner (master) of the property are responsible
for the fine.
(6) Should parents be held criminally
liable for offenses committed by their children?
DEPENDS, on whether state constitution is interpreted to
define parenthood as an insulated (immunized) class or so essential to society
that they cannot be exempted.
(7) Should stores that sell "rolling papers" (drug
paraphernalia) be considered accomplices when they bust people and can prove
that the papers (instrumentalities) were used in commission of a crime?
DEPENDS, on which MPC (mens rea) standard is used. A few
jurisdictions may use less than "purposely".
(8) PRACTICUM:
For each of the following cast of characters, indicate whether the
criminal justice system should prosecute them as accomplices under the
circumstances and why; if not, what additional circumstances would be necessary
for prosecution?
Scenario #8: An
estranged husband finds out his wife is sleeping with another man, so he buys a
gun and takes a taxi over to that man's apartment where he waits outside and
shoots his wife 3-4 times in the back while she comes out. She lays there and
bleeds to death while the husband runs over to a friend's house to hide from
police.
Cast of Characters:
(1) the manufacturer of the murder weapon
(2) the merchant who sold the murder weapon to the husband
(3) the taxi driver who drove the man to the apartment complex
(4) third parties in the apartment complex who may have seen the husband waiting
(5) the other man the wife was seeing
(6) third parties in the apartment complex who failed to call the police or an ambulance
(7) the police who didn't provide protection
(8) the ambulance service that eventually showed up
(9) the apartment complex where the crime took place
(10) the friend who concealed the husband from the police
Cast of Characters:
(1) the manufacturer of the murder weapon
(2) the merchant who sold the murder weapon to the husband
(3) the taxi driver who drove the man to the apartment complex
(4) third parties in the apartment complex who may have seen the husband waiting
(5) the other man the wife was seeing
(6) third parties in the apartment complex who failed to call the police or an ambulance
(7) the police who didn't provide protection
(8) the ambulance service that eventually showed up
(9) the apartment complex where the crime took place
(10) the friend who concealed the husband from the police