Chapter Seven Parties to Crime and Vicarious Liability
Chapter Seven Learning Objectives • Appreciate that participants before and during the commission of crimes are guilty of the crime itself. • Understand how participants after the commission of crimes are guilty of a separate, less serious offense. • Understand that the core idea of accessoryliability is that it is not as blameworthy to help someone else escape prosecution and punishment as it is to participate in the crime itself.
Learning Objectives • Understand that vicarious liability has to be created by statute. • Understand that vicarious liability can apply either to enterprises or to individuals.
Complicity and Vicarious Liability • Complicity • When a person is liable for someone else’s conduct • Issue is the role they play in the other person’s crimes (Parties to crime) • Complicity applies criminal liability to accomplices and accessories because they participate in the crime in some way • Vicarious liability • When a relationship between two parties makes one party criminally liable for the other party’s conduct • Transfer of actus reus and mens rea of one party to the other party because of a relationship • Employer-employee, parent-child, corporation-manager, etc.
Parties to Crime • 4 parties to crime under Common Law • Principal in the first degree • Person who actually committed the crime • Principal in the second degree • Person present when the crime was committed and who helped commit it • Accessories before the fact • Person not present when the crime was committed but who helped before the crime was committed • Accessories after the fact • Person who helped after the crime was committed
Parties to Crime (continued) • Modern approach • Grew out of the transition from all capital offenses, to few capital offenses • Need for complicated set of rules regulating when and if accomplices/accessories diminished as the punishment became less severe • Parties to Crime - Modern Approach • Accomplices – participants before and during the crime • Accessories – participants after crimes are committed
Accomplices • Participants Before and During a Crime are Prosecuted for the crime itself not a lesser form • Not the same thing as conspirators • Conspirators are people who agree to commit some other crime, lesser offense and the crime doesn’t even have to be completed for conspiracy to exist • Accomplices are people who participate in the crime together • Accomplices can be guilty of both the completed crime and of the lesser crime of conspiracy to complete the crime • Pinkerton rule – conspiracy is separate (does not merge) into the completed crime
Accomplices (continued) • Accomplice Actus Reus • Take some positive act in aid of the commission of the offense • Statutes vary as to wording of actus reus • Aid, abet, assist, counsel, procure, hire, induce • Words can qualify if they encourage and approve the commission of a crime • Mere presence rule • Mere presence at scene of crime isn’t enough to satisfy accomplice actus reus • U.S. v. Bailey (1969) • Exception to the mere presence rule -- when persons have a legal duty to act, presence alone can suffice for actus reus • State v. Walden (1982) –mom looks on while man beats her son and does nothing, jury convicted
Accomplice (continued) • Actions taken after the crime was committed are not part of accomplice actus reus (but juries can use participation after the crime to prove defendant’s participated before or during the crime)
State v. Ulvinen (1981) • Carol Ulvinen was convicted of first degree murder as one who “aids, advises, hires, counsels, or conspires with another…” Carol Ulvinen was asleep when her son killed his wife in the home they all shared, but stood by when he dismembered the body, and subsequently assisted in clean-up and supporting her son’s story to cover up the crime. • Carol appealed on the basis that the evidence did not meet the burden of proof beyond a reasonable doubt to convict her as an accomplice to murder • The state supreme court agreed
Summary of case holding • Court held that actions after the crime don’t transform behavior before and during the crime into instigation, encouragement. • The facts in this case were classic accessory type liability—aiding someone after the crime to destroy evidence, hide the crime
Accomplice (continued) • Mens Rea • Purposely helping another commit a crime • Knowingly helping someone who is going to commit a crime but not for the purpose of benefitting from the crime (not as clear) • Backun v. U.S.(1940)—defendant knowingly sold stolen silver to Zucker but not for the purpose of sharing in Zucker’s profit • “Guilt depends, not on having a stake in the outcome of crime but on aiding and assisting the perpetrators. . .” • U.S. v. Peoni (1938)—Peoni sold counterfeit money to Dorsey, who was caught trying to pass the fake money elsewhere. • Different result. Learned Hand decision that Peoni’s knowledge that Dorsey possessed counterfeit money was not enough to sustain criminal liability.
Accomplice (continued) • Mens rea (cont.) • Cases go back and forth as to whether the aider and abettor has a purpose that the other person commit the crime • Sometimes even reckless/negligence will suffice • Did the participant predict that aiding and abetting one crime might reasonably lead to another? (if so, guilty on both)
Accessory After the Fact • Common Law • Accessories after the fact were punished like accomplices • Modern • Treated differently, they are not as bad as someone who commits the crime or helps another commit crime. • Separate offense (no conviction for the underlying offense) • Misdemeanors usually…but not always • Sometimes different names: obstructing justice, hindering prosecution, aiding in escape, etc.
Accessory (continued) • 4 Accessory Elements • Accessory personally aided the person who committed the crime (actus reus) • Accessory knew the felony was committed (mens rea) • Accessory aided the person who committed the crime for the purpose of hindering the prosecution of that person (mens rea) • Someone besides the accessory actually committed the felony (attendant circumstance)
State v. Chism (1983) • Brian Chism was convicted of being an accessory after the fact (murder) following his uncle’s murder of his ex-wife. ..he had driven from the scene, moved the body, and discarded clothing. • Chism appealed the conviction, arguing that the evidence was insufficient. • The court affirmed the conviction.
Summary of case holding • Court reviewed whether there was sufficient evidence for the jury to find that Chism was an accessory after the fact to his uncle Ira Lloyd’s crime of murder. • Court examined the elements of the statute and the facts presented to the jury and upheld that a reasonable trier of fact could find beyond a reasonable doubt that Chism assisted Lloyd and desired that Lloyd avoid trial, conviction, or punishment
Dunn v. Commonwealth (1997) • Dunn was convicted of being an accessory after the fact to grand larceny…he claimed that he was merely present in the vehicle while others committed the thefts, and in his statement he admitted taking the property to the city in exchange for crack. • Dunn claimed that the evidence was insufficient, and proved only that he was a passenger in a vehicle. • The court disagreed.
Summary of case holding • Again, the determination of whether a person’s actions after a crime constitute accessory liability involve a close review of the facts in the case. Here, the court determined that the evidence was sufficient to prove Dunn’s was an accessory after the fact to the prior thefts: • He knew the others intended to steal (2 Occasions) • Smoked Crack purchased with proceeds • Went out with codefendants 3 days after 1st event
Vicarious Liability • Actus reus and mens rea of one party is imputed to another party • Most vicarious liability involves a business relationship • Vicarious liability can flow from individuals to corporations and other business entities and from individuals to individuals
Corporations • History – Sutherland Identifying “White Collar” Crime 1939 • Corporate Criminal Law • Creature of federal law • Contracts clause of the Constitution • Commerce clause of the Constitution • Corporations affect interstate commerce • Historically, strong belief in corporate self-regulation based on “shingle theory” • Corporations will behave because it is in their own best interests • Market place will really control corporations • Little or no room for governmental oversight and control • SEC/government in the background in case everything went awry
Corporations (continued) • Weakness of self-regulation • Depends on self-restraint • Depends on ethical corporate governance • Need for government to be proactive not reactive • Need for government to be in position to prevent misconduct (hasn’t been the case)
Corporations (continued) • Corporate liability via vicarious liability comes through doctrine of respondeat superior or “let the master answer” • Corporations, legal fiction as person, can be sued and enter into contracts – Dartmouth College v. Woodward (1918) • New York Central and Hudson River Railroad Company v, US (1909) • Corporate employees’ acts are imputed to the corporation • “…the act of the agent, while exercising the authority delegated to him to make rates for transportation, may be controlled, in the interest of public policy, by imputing his act to his employer and imposing penalties upon the corporation for which he is acting.”
Corporations (continued) • Power of Congress to regulate corporations • New York Central… • “There can be no question of the power of Congress to regulate interstate commerce, to prevent favoritism, and to secure equal rights to all engaged in interstate trade. It would be a distinct step backward to hold that Congress cannot control those who are conducing this interstate commerce by holding them responsible for the intent and purposes of the agents to whom they have delegated the power to act in the premises.”
U.S. v. Arthur Anderson, LLP (2004) • Arthur Anderson Accounting firm was convicted of Obstruction of the Securities and Exchange Commission investigation of the Collapse of ENRON • Despite actions indicating intent (shredding documents, withholding records, ), the firm appealed claiming reversible judicial errors in instructions to the jury. • The judgment was affirmed
Summary of case holding • The court evaluated the jury instructions that the district court gave to the jury during the trial. The defendant had argued that the instructions were erroneous and effected the jury’s verdict. • The specifics were: • that instructions’ definition of “corruptly persuades” was wrong • that instructions’ definition of “official proceeding” was wrong • The failure to give the instruction that “government had to prove that Andersen knew that its destruction was unlawful” affected the jury. • Appellate court upheld convictions, found district court did not err in giving or not giving the challenged instructions.
Individual Vicarious Liability • Individuals are vicariously liable for their agents • Employers, for example, are liable for acts of their employees • State vicarious liability rests on state statute • Unless a state statute specifically imposes vicarious liability, the courts won’t impose it (policy reasons surrounding blameworthiness of criminal behavior as person blame)
State v. Tomaino (1999) • Tomaino as the owner of an adult video store was charged and convicted of disseminating materials harmful to juveniles after one of his employees sold a video to a 17 year old in a sting operation. • Tomaino appealed, claiming that he was not present, and the statute under which he was convicted required “personal” involvement in the offense. • The court agreed.
Summary of case holding • “Criminal liability is rigidly and precisely limited to those situations . . . specifically limited by statute.” • “Vicarious liability for another’s criminal conduct can be delineated by statute; it cannot be created by the courts“ • The court found that although liability can be based on ownership of a business, it found that the statute in question required personal action by a defendant, and did not provide for vicarious premise oriented liability
Parental Responsibility Laws • Holding parents responsible for the acts of children can be based on vicarious liability deriving from the parent child relationship. These cases/statutes are rare (and generally against public policy –requiring personal blameworthiness for criminal liability) • Failure to exercise control laws are not vicarious liability laws (they are based upon the parents actus reus (omission) and mens rea (negligence or recklessness generally) • Contributing to delinquency of a minor is also not vicarious liability (based on parent’s actus reus and mens rea)
State v. Akers (1979) • Parents were found guilty of violating a snowmobile statute which made them vicariously liable for the acts of their children simply because of their status as parents • The parents appealed, questioning the constitutionality of the law. • The court agreed
Summary of case holding • Legislature didn’t specify any voluntary acts/omissions by parents sought to be made criminally responsible • Due process requires that acts which are the basis of criminal liability must be spelled out in advance (courts imposing liability at trial would be ex post facto violation) • Holding parents liable simply because they are parents violates due process