Accessory After the Fact – How Is This Defined?

Posted on May 23, 2023

Most jurisdictions say that you are an accessory after the fact if you knowingly help a criminal escape justice after that person has committed an offense.

“Help” usually takes the form of knowingly

• harboring,
• concealing, or
• aiding a criminal so that he/she can avoid prosecution or punishment.

Depending on the facts of the case, a prosecutor can charge the crime as either

• a misdemeanor or
• a felony.

Examples include:

• driving a getaway car for a person that robs a bank.
• helping a person avoid arrest by law enforcement while still at a crime scene.
• providing a false alibi for a friend that committed a domestic violence offense.

An accessory after the fact is often contrasted with an accessory before the fact. While an accessory after the fact helps a criminal after the person completes a crime, an accessory before the fact helps the criminal either before or during the commission of the offense.

1. What is the legal definition of an “accessory after the fact”?

The criminal laws of most states say that you are an accessory after the fact if you help a principal offender after the person commits a crime.

In particular, a prosecutor usually has to prove the following to successfully convict you of the criminal offense:

1. you knew that a person committed a criminal act, and
2. you knowingly helped the person in some way escape arrest, trial, conviction, or sentencing after the commission of the crime.¹

Note that some states say that you will only face a charge of accessory after the fact if a main offender’s underlying crime was a felony.² To say this another way, only the commission of a felony by a principal felon can trigger the crime.

Other states say that any crime, either a misdemeanor or a felony, can trigger the offense.³

Consider, as an example, the scenario where you have a family member or loved one that commits misdemeanor DUI. If you help the person escape from the police, you will only face accessory after the fact charges in those states that say any crime will trigger the offense. You will not face charges in states requiring a felony because DUI is usually a misdemeanor.

2. Is accessory after the fact the same as obstruction of justice?

No. The term obstruction of justice means to obstruct either:

• those who seek justice in a court (for example, a judge), or
• those who have duties or powers of administering justice (for example, a police officer).

While accessory after the fact focuses on a person helping a criminal avoid punishment, obstructing justice focuses on a person getting in the way of police involvement or the judicial process.

Note that not all states have a specific law on the obstruction of justice. In those that do not, the states do have a number of laws that fall under the rubric of “obstruction of justice.” Some of these include:

• offering false evidence,
• preparing false evidence, and
• tampering with or intimidating witnesses.

3. What is an accessory before the fact?

You are an accessory before the fact if you aid or encourage someone else to commit a crime.⁴

While an accessory after the fact helps a criminal after the person commits a crime, an accessory before the fact helps the criminal either before or during the commission of the offense.

Examples, where you could face criminal charges of accessory before the fact, include:

• serving as a lookout,
• keeping an engine running in a car, and
• supplying the tools necessary for the commission of a crime.

4. What is the difference between principal and accessory?

The principal is the person who directly plans or commits a criminal offense, whereas an accessory aids the principal once the crime is done. Three other key differences are:

1. The principal typically has criminal intent to commit an offense, while an accessory may not have been aware that the offense even occurred until after it was done.
2. The principal is physically present at the scene of the crime, while the accessory may or may not be in the vicinity at all.
3. The principal bears criminal liability for the offense, while an accessory only faces charges for their role in helping the principal after the offense is committed.

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