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Call Us Now“Accessory to a Crime” – What does this mean?
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What is an Accessory to a Crime? 5 Defenses
An accessory to a crime is someone who helps to commit the offense, even if they were not actually or constructively present during its commission. Many states differentiate between accessories after the fact, and accessories before the offense.
In some states, being an accessory before the offense can be called aiding and abetting the crime.
What does it mean to be an accessory to a crime?
An accessory to a crime is anyone who helped someone else commit the offense. There are 2 types of accessories:
- accessories after the fact, and
- accessories before the fact.
The difference between the two is when the accessory provided help. In either case, the accessory does not need to be present during the crime. They can be miles away and still be an accessory.
Accessories before the fact
Accessories before the fact provide assistance before the crime is committed. The criminal justice system in many states treats these defendants as a part of the underlying crime (as an “accomplice”).
Accessories after the fact
Accessories after the fact only help once the crime has occurred. Criminal law tends to treat these offenses as similar to those for obstruction of justice.1 This leads to a big difference in the potential penalties for a conviction.
What is an accessory after the fact?
An accessory after the fact helped someone else after the crime had been committed.
In California, for example, prosecutors have to show that:
- someone else committed a felony offense,
- the defendant knew that the perpetrator had committed a felony, or been charged or convicted of one,
- after the commission of the felony, the defendant harbored, concealed, or aided the perpetrator, and
- the defendant intended that the perpetrator avoid or escape arrest, trial, conviction, or punishment.2
Some other state laws do not require that the underlying offense was a felony.
Examples
Examples of being an accessory after the fact include:
- providing an alibi for a friend who has been charged with driving under the influence (DUI),
- driving a getaway car after a robbery, and
- helping a criminal suspect or felon escape arrest.
What does it mean to aid and abet a crime?
An accessory before the fact helps the perpetrator before the crime has been committed. It is often called aiding and abetting a crime.
Some examples of aiding and abetting a crime include:
- serving as a lookout during a robbery,
- furnishing a firearm for use during a crime, and
- encouraging someone else to commit the offense.
California law
In California, prosecutors have to prove the following beyond a reasonable doubt:
- the perpetrator or principal offender committed the crime,
- the defendant knew that the perpetrator intended to commit the crime,
- before or during the crime’s commission, the defendant intended to aid and abet the perpetrator in committing the offense, and
- the defendant’s words or conduct did in fact aid and abet the perpetrator’s offense.3
No withdrawal of assistance
Additionally, prosecutors have the burden of proving that an accessory before the fact did not withdraw. In California, someone accused of aiding and abetting withdraws their assistance if they:
- notify everyone else known to be involved in the commission of the crime that they are no longer participating, provided that the notification is early enough to prevent the commission of the offense, and
- do everything reasonably within their power to prevent the crime from being committed, even if those efforts are eventually unsuccessful.4
Other factors
Under California common law, someone can be an accessory before the fact without providing physical help. An accessory can merely intend for the crime to be committed and instigate, incite, or encourage someone else to do it.5
The presence of the defendant at the crime scene is a sign that they were an aider or abettor. Their absence, however, does not mean that they did not aid and abet it.6
Other factors in determining whether someone aided and abetted the offense include the defendant’s conduct before or after the offense, as well as their companionship with the perpetrator.7
What are the penalties?
Each state or jurisdiction has its own punishments for an accessory charge. Most treat a criminal case of aiding and abetting a crime as more severe than being an accessory after the fact. Nearly all states have criminal codes that treat them as separate crimes.
California law
In California, for example, a conviction for aiding and abetting carries the same penalties as the underlying criminal charges.8 If the underlying offense carries 5 years in prison, aiding and abetting in its commission carries 5 years in prison, as well.
The only exception to this rule is for accessories to murder.9
Meanwhile, the crime of accessory after the fact is a wobbler offense in California. It can be charged as either
- a misdemeanor or
- a felony.
Prosecutors have broad discretion in choosing how to pursue the charges.
If pursued as a misdemeanor, a conviction carries up to 1 year in jail. If pursued as a felony, a conviction carries up to 3 years in jail or prison. In either case, a conviction can also carry up to $5,000 in fines.10
Federal law
Accessories after the fact may face no more than half the minimum sentence that the principal of the crime is punished to. In the event the principal is sentenced to life in prison or the death penalty, the maximum sentence for an accessory after the fact is 15 years.11
Are there any legal defenses?
People accused of being an accessory to a crime have several legal defenses that they can raise. A skilled criminal defense attorney will know which one is best for a particular case. Some of the most common are that the defendant:
- was under duress when they provided assistance,
- had no knowledge of the crime or the intent to commit one,
- was a bystander who did not actually help in the offense, at all, or
- withdrew from the criminal offense.
It is not a defense that the defendant lacked the wilfulness or specific intent for the underlying crime to take place – mere knowledge that the principal was intending to commit the crime is usually sufficient.
Duress
Duress is a common defense for alleged accessories to make. If the perpetrator forced someone else to act as an accessory in the commission of a crime, it can be a strong defense.
For example: Bill robs a bank. To get away, he carjacks Helen. He puts a gun to her head and tells her to drive away.
No knowledge
Alleged accessories also frequently argue that they had no knowledge of the offense or that they were merely bystanders.
To be an accessory before the fact, the defendant must have known that a crime was to take place. To be an accessory after the fact, the defendant must have known that a crime had occurred.
In some cases, a bystander’s innocent actions may appear to be helping the perpetrator commit the crime.
How is this different from conspiracy?
The crime of conspiracy is similar to aiding and abetting an offense. However, there are important differences. These precise differences will depend on the state’s criminal laws.
In California, for example, conspiracy happens when:
- the defendant agrees with someone else to commit a crime, and
- one of the parties to the agreement takes an overt act in furtherance of the agreement.12
This requires more involvement in the offense. Conspiracy requires that the conspirator must have been a part of the decision to commit the crime. Being an accessory can happen without being a part of the planning stage.
Legal References:
- People v. Montoya, 7 Cal.App.4th 1027 (1994).
- California Penal Code 32 PC and California Criminal Jury Instructions (CALCRIM) No. 440. See also, for example, U.S. v. Triplett, 92 F.2d 1174 (5th Cir. 1991); U.S. v. White, 135 S. Ct. 1573, 191 L. Ed. 2d 656 (2015); Ellis v. U.S., 806 F. Supp. 2d 538 (E.D. N.Y. 2011) (accessory after the fact elements are: (1) the commission of underlying offense against the U.S.; (2) the defendant knew about the offense; and (3) the defendant assisted to thwart the principal’s arrest, trial, or sentence.); 18 U.S.C. § 3 (“Whoever, knowing that an offense against the United States had been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.”); State v. Hawkins, 326 Md. 270 (, 1992).
- California Penal Code 31 PC and CALCRIM No. 401. See also, for example, Evans v. State, 145 So. 3d 674 (Miss. 2014).
- CALCRIM No. 401.
- People v. Booth, 48 Cal.App.4th 1247 (1996).
- People v. Bohmer, 46 Cal.App.3d 185 (1975). See also Johnson v. State, 290 So. 3d 1232 (Miss. 2020).
- People v. Singleton, 196 Cal.App.3d 488 (1987).
- California Penal Code 31 PC and CALCRIM No. 400.
- People v. McCoy, 25 Cal.4th 1111 (2001).
- California Penal Code 33 PC.
- 18 U.S.C. § 3.
- CALCRIM No. 415.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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