Accessory before the fact:
  • 1. Not "present" at the crime
  • 2. Gives aid or encouragement (MPC: attempting to give aid)
  • 3. With the intent the crime be committed
  • Accessory before the fact = full-fledged part of the crime, guilty of the crime.
  • 1. aid or encouragement (MPC: attempted aid)
  • 2. with intent that crime occur (specific intent req’d)
  • 1. Take aid/encouragement back (MPC: if you try really hard, you may have withdrawn, see Diamond, p. 893, Suppl. 206-6-C)
  • 2. Give timely notice of crime (reasonable period where it could be effective).
Accessory after the fact (Diamond, p. 680):
  • 1. felony has been committed
  • 2. know felon committed the crime
  • 3. render aid to felon
  • 4. with the purpose of hindering apprehension by authorities (specific intent?)
Accessory vs. Principal:
  • 1. Principal in first degree (must have mens rea)
    • Using a dupe/instrument makes you principal in 1st, they are innocent actor, not principal (they lack mens rea).
  • 2. Principal in 2nd degree
    • "Present" at the offense.
    • Give aid or encouragement OR MPC attempted to give aid/encouragement.
  • 3. Accessory before the fact (must also include INTENT/mens rea that crime occur).
  • 4. Accessory after the fact.
  • Diamond, p. 655, second to last paragraph: principal in the first degree.
State v. Gladstone
  • Student told narcotics officer who could sell him marijuana.
  • Encouraging pretty much by definition purposeful.
  • Accused of giving aid in this case.
  • Intent in this case NOT ENOUGH...
    • "knowing intent" not sufficient, must be purposeful.
  • New York: criminal facilitation a compromise position
What about intent to have reckless behavior?
  • Drag racing cases
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