May 5, 2025 • 19 mins
Welcome back to the Bar Exam Toolbox podcast! Today we're focusing on another topic from Criminal Law -- namely, accomplice liability. We're covering the three elements of establishing accomplice liability, situations where accomplice liability doesn't apply, and what defenses a person charged as an accomplice can assert. We also apply these concepts to several hypothetical scenarios.
In this episode, we discuss:
- Elements of accomplice liability
- Exceptions and defenses to accomplice liability
- Analysis of three criminal law hypotheticals
Resources:
- "Listen and Learn" series (https://barexamtoolbox.com/bar-exam-toolbox-podcast-archive-by-topic/bar-exam-toolbox-podcast-explaining-individual-mee-and-california-bar-essay-questions/#listen-learn)
- Podcast Episode 70: Tackling a California Bar Exam Essay: Criminal Law and Procedure (https://barexamtoolbox.com/podcast-episode-70-tackling-a-california-bar-exam-essay-criminal-law-and-procedure/)
Download the Transcript
(https://barexamtoolbox.com/episode-310-listen-and-learn-accomplice-liability-criminal-law/)
If you enjoy the podcast, we'd love a nice review and/or rating on Apple Podcasts (https://itunes.apple.com/us/podcast/bar-exam-toolbox-podcast-pass-bar-exam-less-stress/id1370651486) or your favorite listening app. And feel free to reach out to us directly. You can always reach us via the contact form on the Bar Exam Toolbox website (https://barexamtoolbox.com/contact-us/). Finally, if you don't want to miss anything, you can sign up for podcast updates (https://barexamtoolbox.com/get-bar-exam-toolbox-podcast-updates/)!
Thanks for listening!
Alison & Lee
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Lee Burgess (00:01):
Welcome to the Bar Exam Toolbox podcast.
Today we're covering the topicof accomplice liability, as part
of our "Listen and Learn" series.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
(00:22):
career-related website Career Dicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
(00:49):
Welcome back!
So, what is accomplice liability?
The basic idea is straightforward (00:53):
Someone who helps another person commit a crime
may be held liable for that crime as anaccomplice, even if they don't personally
commit any of the elements of the crime.
But as we'll see, determiningexactly when someone becomes an
accomplice requires careful analysis.
Accomplice liabilityrequires three elements.
(01:16):
First, someone else must commit a crime- we call this person the "principal".
Second, the accomplice mustassist or encourage the principal
in the commission of the crime.
Third, the accomplice must have whatis sometimes called "dual intent".
The accomplice must have the intentto assist the principal and the
intent that the crime be committed.
(01:38):
So let's break each ofthese elements down.
For the first element - commissionof a crime by the principal - the
principal must actually commit a crime.
If the principal's conduct is notactually a criminal act, or the
crime is never committed, therecan be no accomplice liability.
However, the principal doesn'tneed to be caught or convicted for
(02:00):
accomplice liability to attach.
The second element - assistance orencouragement - can take many forms.
An accomplice might provide suppliesfor the commission of the crime or
act as a getaway driver or lookout.
The accomplice might also verballyencourage the crime - for example,
by yelling, "Kill him!" or by givingthe principal advice or instructions
(02:23):
about how to commit the crime.
However, mere presence at the scene ofa crime or knowledge that the crime may
be committed is not enough to establishassistance or encouragement of the crime.
The third element - the intentrequirement - is often the trickiest.
The accomplice must have theintent to assist the principal
(02:45):
in committing the crime and theintent that the crime be committed.
Accomplice liability does not attachif the person assisting the principal
in the commission of the crime did notactually intend to provide the assistance.
Additionally, in a few jurisdictions,a person can only be an accomplice
of crimes requiring specific intent.
(03:06):
Now that we've covered the main elements,we can talk about some situations
where accomplice liability just doesn'tapply, and what defenses a person
charged as an accomplice can assert.
There are some situations where accompliceliability will not apply, even when it
looks like all the elements are met.
(03:27):
For example, a victim of a crimecannot be an accomplice to the
crime committed against them.
Accomplice liability does not apply whenthe crime inherently involves several
types of participants, and the person isnot criminally liable under the statute.
Also, keep in mind that a minority ofjurisdictions do not allow accomplice
(03:47):
liability for involuntary manslaughter.
A person charged as an accomplicecan assert that they withdrew
as a defense, but only if theywithdrew before the crime was so far
underway that it was unstoppable.
Withdrawal can be accomplished byeither repudiating any engagement,
(04:08):
any encouragement given, orundoing any assistance provided.
An accomplice can also notifythe authorities or stop the crime
from happening if they're unableto repudiate the encouragement
or undo the assistance provided.
What about liability for additionalcrimes committed by the principal?
This is where thingsstart to get interesting.
(04:28):
Under the "natural and probableconsequences" doctrine, an accomplice
can be liable not only for the crime theyintended to help with, but also any other
crimes that were a reasonably foreseeableconsequence of the intended crime.
Now that we've covered the rules,let's work through some accomplice
liability hypotheticals togetherto see how these concepts work.
(04:51):
Here's our first hypo:
"Alice works as a bank teller.
One day, her boyfriend Bob tells her heplans to rob the bank where she works.
Alice thinks he's joking and laughs,saying, 'Well, if you do, remember
the real money is in the safe depositboxes, not the teller drawers.'
She also mentions that the securityguard takes his lunch at 1:00 PM.
(05:15):
The next day at 1:15 PM, duringthe security guard's lunch break,
Bob robs the bank at gunpoint.
He gets the money from thetellers' drawers and demands
access to the safe deposit boxes.
The safety deposit boxes can only beaccessed with keys from two different
managers, but only one is present,so Bob is unable to access them.
(05:38):
During the robbery, a customerattempts to stop Bob; however,
Bob shoots the customer."
For this hypothetical, we need toanalyze whether Alice could have
been charged as an accomplice toboth the robbery and the shooting.
First we need to determine whetherAlice is an accomplice to the robbery.
As a reminder, to establish accompliceliability, these elements must be
met (06:01):
[1] commission of a crime by the principal; [2] assistance or
encouragement by the accomplice; and[3] intent to assist the crime and
intent that the crime be committed.
Here we know that Bob, theprincipal, clearly committed the
principal crime of armed robbery,so the first element is satisfied.
(06:22):
Next, we need to look atwhat Alice actually did.
Was it assistance or encouragement?
Alice provided Bob pretty specific,helpful information about the
guard's schedule, including whenthe bank would be unguarded.
Bob was able to use that knowledgeto commit the robbery because he knew
exactly when the bank would be vulnerable.
(06:43):
Her statement about the safety depositboxes is less clear, though it does
seem like she was encouraging himto access the safety deposit boxes.
So as to the second element, Alice'sstatements seem to be assisting and
encouraging Bob's planned robbery.
The intent element is goingto be the hardest element to
prove in this hypothetical.
Alice's belief that Bob was jokingsuggests she didn't actually intend
(07:07):
to help him commit a robbery.
Alice will argue that her statementswere clearly a joke and were not
intended to assist or encourage Bob.
Since we know Bob couldn't get accessto the safe deposit boxes during the
robbery, Alice might explain that sheknew it wouldn't be possible to get to
the "real money", which suggests thatshe didn't have the intent to help or
(07:29):
encourage Bob, and she didn't have theintent that he actually commit the crime.
The prosecution might argue thatgiving such specific information shows
she believed Bob would rob the bankand that she would not have provided
him that information unless sheboth intended to help him do so and
intended that he complete the robbery.
(07:51):
This is not really a slam dunk inAlice's favor or against her, so
Alice might leave the question ofher liability as Bob's accomplice
for the armed robbery to the jury.
Okay, let's look at the secondissue in this hypothetical - whether
Alice can be held liable for theshooting under the natural and
probable consequences doctrine.
(08:11):
Remember, the rule here is thatin addition to any crimes that the
accomplice helped with, the accompliceis liable for any reasonably foreseeable
crimes that the principal commits.
For this discussion, let's assume Aliceis liable as an accomplice to the robbery.
The first thing to remember is thatAlice does not need to have assisted
or encouraged Bob in the shooting,nor do we have to find that she had
(08:35):
any intent to assist or encourage him.
We also don't need to know whethershe intended for him to shoot anyone.
What we are looking at here is whethera shooting that occurs during an armed
bank robbery is a reasonably foreseeableconsequence of the armed robbery.
That is, was Bob shooting someone whointervened during this armed robbery
(08:57):
a natural and probable consequenceof the armed robbery itself?
Alice might argue that it wasn'treasonably foreseeable that a customer
would intervene or that Bob would shootthe customer, because Bob didn't tell her
he planned to bring a gun to the robbery.
On the other hand, the prosecutionwould argue that it is reasonably
foreseeable that Bob would bring a gunto the robbery, because robbing a bank
(09:20):
is often done at gunpoint, and thereforeit was also reasonably foreseeable
that someone at the bank would be shotwhile Bob was committing the robbery.
The prosecution's argument is themost likely winner here, because it
is reasonably foreseeable that duringan armed bank robbery someone may be
shot, due to the nature of the crime.
(09:41):
Here's a small plot twist to thefact pattern for us to think about:
"The day after Bob tells Alice heplans to rob the bank, as Alice is
leaving for her lunch break, sheruns into Bob outside the bank.
Alice realizes he had not been jokingduring their earlier conversation
and says to Bob, 'I hope youknow I was just joking around.
(10:03):
You can't get into the safedeposit boxes and we actually
have a guard on duty all the time.
Don't rob the bank.
It's a terrible idea!' After theypart ways, Bob returns to the bank and
robs it at gunpoint as he planned."
Does this change the analysis ofwhether Alice is an accomplice
for the armed robbery?
Remember that a defense to accompliceliability is the accomplice's withdrawal
(10:27):
by repudiating any encouragementor undoing any assistance provided
before the crime is unstoppable.
Alice would be able to assert thatas soon as she realized Bob had been
encouraged by her comments and that hercomments about the safe deposit boxes
and guards might have helped him plan therobbery, she clarified she was joking,
explained that the comments regardingthe safe deposit boxes and guards
(10:50):
weren't actually true, and told him shedid not support him robbing the bank.
Bob hadn't even entered the bank yet.
He could have turned around and left.
So, the crime was still stoppablewhen she repudiated her encouragement
and undid her assistance.
Alice has a solid defense based onwithdrawal in this factual scenario.
(11:11):
Alright, let's look at a second hypo:
"Tom manages an electronic store.
During work one day, Tom's employee,Mike, who is angry about the low
wages both he and Tom are paid,suggests to Tom that they burglarize
the store that night after closing.
Tom tells Mike that he wantsnothing to do with the plan.
However, Tom intentionally leavesthe store's back door unlocked
(11:34):
and turns off the security camerasbefore he leaves that night.
Mike returns to the storeafter it is closed and enters
through the unlocked back door.
Mike steals several expensiveitems, but also decides on a whim
to vandalize the store and to set asmall fire that damages the store."
So, let's analyze Tom's potentialcriminal liability under
(11:55):
accomplice liability principles.
Just like the last hypo, we'lllook at whether Tom is an
accomplice to the burglary first.
Here, Mike committed the principal crimeof burglary, so the first element is met.
There's a strong argument here that Tom'sactions in leaving the door unlocked
and disabling the security camerasactively helped facilitate the burglary.
(12:18):
Tom doesn't have a very good argumentto the contrary, because he engaged
in two very intentional acts that leftthe store unsecured when he knew that
Mike was planning to burglarize it.
This is true, even if Tom didn't tell Mikehe was going to do either of these things.
So, the second element - assistingor encouraging - is met.
(12:40):
Looking at the intent element, we knowthat Tom verbally refused to participate,
so he would probably argue that hiswords indicate that he did not intend
for his store to be burglarized, nordid he intend to help Mike do so.
However, his actions in deliberatelycreating the conditions to
help the burglary succeed,demonstrate his true intent.
(13:03):
Tom's act of leaving the doorunlocked assisted Mike in allowing
him easy entry into the store.
And Tom's act of turning the camerasoff assisted Mike by allowing
him to do whatever he wanted inthe store without being seen.
Since it is not a normal businesspractice to leave a store completely
open and unattended, and he did itthe very night Mike said he was going
(13:24):
to commit the burglary, we can inferthat Tom intended to assist Mike in
burglarizing the store, and that hewanted Mike to commit the burglary.
Therefore, we can conclude that despiteTom's verbal protests, his actions
made him an accomplice to the burglary.
Okay, now we need to think about whetherTom can be held liable for the vandalism
(13:45):
and the arson that Mike committedduring the burglary under the natural
and probable consequences doctrine.
While the property damage from Mike'svandalism might be a natural and probable
consequence of a burglary, dependingon what exactly Mike did to vandalize
the store, Mike's act of setting a firelikely goes beyond what Tom could have
reasonably foreseen when he assistedMike in committing the burglary.
(14:07):
Remember that the natural andprobable consequences doctrine
doesn't extend to crimes thatare not reasonably foreseeable.
So, overall, Tom would likely beliable as an accomplice to the burglary
and he might be held liable as anaccomplice to the vandalism, but he
wouldn't be liable for the arson.
The last two hypotheticals show ushow accomplice liability requires
(14:28):
careful analysis of the accomplice'sthoughts and actions before the crime,
along with what a natural and probableconsequence of any given crime might be.
Even seemingly small actions cancreate criminal liability if they're
intended to help a crime succeed,and an accomplice can easily find
themselves in trouble for multiplecrimes committed by the principal.
(14:52):
Let's explore one more hypothetical.
Here's our scenario:
"Rachel works as a bartenderat an upscale restaurant.
She notices that her wealthy,regular customer William always
pays with high-limit credit cards.
Rachel mentions this to her cousinDavid, a computer expert with
a history of credit card fraud.
She gives David William's fullname, the types of cards he uses,
(15:14):
and his usual dining schedule.
She tells David, 'You'realways talking about how easy
it is to clone credit cards.
I bet you could get some money fast offthis guy.' David visits the bar during
William's usual dining time and takesa seat next to William, which allows
David to successfully create clonedversions of William's credit cards.
Instead of just using William'scredit card information to withdraw
(15:36):
cash or buy things for himself asRachel expected, David uses William's
credit card information to createfake identities, which he then uses
to commit large-scale bank fraud."
Now, let's analyze this hypo.
As always, we need to look atwhether Rachel is an accomplice to
the first crime, which is larceny.
Recall that our accomplice liabilityrules require, [1] a principal crime;
(16:00):
[2] assistance or encouragement bythe accomplice; [3] the dual intent
to encourage or assist the crimeand that the crime be committed.
We know that David committed
the principal crime of
Lee Burgess (16:11):
larceny when he stole William's credit card information,
so the first element is satisfied.
The second element is alsopretty clearly satisfied.
Rachel's assistance was
providing David specific
information about William, his credit cards, and his schedule.
She also encouraged David byspecifically suggesting that David
engage in the criminal activity,so we can confidently say that the
(16:32):
second element has been satisfied.
Similarly, the intent element iseasily satisfied here, because
Rachel initiated the discussion withDavid, provided David with details
necessary to commit the crime, andactually told David he should do it.
We can infer from those actionsthat Rachel had the dual intent
to assist in the crime and thatthe crime actually take place.
(16:54):
Since all the elements are met,we can conclude that Rachel is an
accomplice to David's crime of larceny.
The harder question is whetheraccomplice liability extends to
David's second crime of bank fraud.
Just like the other two fact patterns,we're looking at the natural and
probable consequences doctrine.
Rachel might argue that she couldn'treasonably foresee that David would
take the larceny of William's creditcard information to the next level,
(17:18):
since she only knew of David's creditcard fraud history and thought he
would just use the information towithdraw cash or buy himself things.
On the other hand, David's act of usingWilliam's credit card information to
commit other significant financialcrimes is a typical pattern criminals
use after stealing someone'spersonal financial information.
Rachel's comments seem to confirm thistoo, since she thought that David could
(17:41):
make a lot of money off of William,which implies that he could do more
than just use the information toobtain cash and buy himself things.
Given these comments, there's astrong argument that it was reasonably
foreseeable that in addition to, or maybeinstead, of stealing and using William's
credit card information for himself, Davidwould also use it to commit other crimes.
(18:05):
So, David's additional crime of bank fraudis a reasonably foreseeable consequence
of the intended crime, and Rachel wouldlikely be held liable as an accomplice
for both of these crimes under the naturaland probable consequences doctrine.
So, this hypothetical shows us howaccomplice liability can extend
to significant crimes when arelatively simple criminal scheme
(18:26):
expands into something much larger.
And that's all we have time for you today.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
(18:51):
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
Welcome to the Bar Exam Toolbox podcast.
Today we're covering the topicof accomplice liability, as part
of our "Listen and Learn" series.
Your Bar Exam Toolbox hosts are AlisonMonahan and Lee Burgess, that's me.
We're here to demystify the barexam experience so you can study
effectively, stay sane, and hopefullypass and move on with your life.
We're the co-creators of the Law SchoolToolbox, the Bar Exam Toolbox, and the
(00:22):
career-related website Career Dicta.
Alison also runs TheGirl's Guide to Law School.
If you enjoy the show, please leavea review on your favorite listening
app, and check out our sister podcast,the Law School Toolbox podcast.
If you have any questions, don'thesitate to reach out to us.
You can reach us via the contactform on BarExamToolbox.com,
and we'd love to hear from you.
And with that, let's get started.
(00:49):
Welcome back!
So, what is accomplice liability?
The basic idea is straightforward (00:53):
Someone who helps another person commit a crime
may be held liable for that crime as anaccomplice, even if they don't personally
commit any of the elements of the crime.
But as we'll see, determiningexactly when someone becomes an
accomplice requires careful analysis.
Accomplice liabilityrequires three elements.
(01:16):
First, someone else must commit a crime- we call this person the "principal".
Second, the accomplice mustassist or encourage the principal
in the commission of the crime.
Third, the accomplice must have whatis sometimes called "dual intent".
The accomplice must have the intentto assist the principal and the
intent that the crime be committed.
(01:38):
So let's break each ofthese elements down.
For the first element - commissionof a crime by the principal - the
principal must actually commit a crime.
If the principal's conduct is notactually a criminal act, or the
crime is never committed, therecan be no accomplice liability.
However, the principal doesn'tneed to be caught or convicted for
(02:00):
accomplice liability to attach.
The second element - assistance orencouragement - can take many forms.
An accomplice might provide suppliesfor the commission of the crime or
act as a getaway driver or lookout.
The accomplice might also verballyencourage the crime - for example,
by yelling, "Kill him!" or by givingthe principal advice or instructions
(02:23):
about how to commit the crime.
However, mere presence at the scene ofa crime or knowledge that the crime may
be committed is not enough to establishassistance or encouragement of the crime.
The third element - the intentrequirement - is often the trickiest.
The accomplice must have theintent to assist the principal
(02:45):
in committing the crime and theintent that the crime be committed.
Accomplice liability does not attachif the person assisting the principal
in the commission of the crime did notactually intend to provide the assistance.
Additionally, in a few jurisdictions,a person can only be an accomplice
of crimes requiring specific intent.
(03:06):
Now that we've covered the main elements,we can talk about some situations
where accomplice liability just doesn'tapply, and what defenses a person
charged as an accomplice can assert.
There are some situations where accompliceliability will not apply, even when it
looks like all the elements are met.
(03:27):
For example, a victim of a crimecannot be an accomplice to the
crime committed against them.
Accomplice liability does not apply whenthe crime inherently involves several
types of participants, and the person isnot criminally liable under the statute.
Also, keep in mind that a minority ofjurisdictions do not allow accomplice
(03:47):
liability for involuntary manslaughter.
A person charged as an accomplicecan assert that they withdrew
as a defense, but only if theywithdrew before the crime was so far
underway that it was unstoppable.
Withdrawal can be accomplished byeither repudiating any engagement,
(04:08):
any encouragement given, orundoing any assistance provided.
An accomplice can also notifythe authorities or stop the crime
from happening if they're unableto repudiate the encouragement
or undo the assistance provided.
What about liability for additionalcrimes committed by the principal?
This is where thingsstart to get interesting.
(04:28):
Under the "natural and probableconsequences" doctrine, an accomplice
can be liable not only for the crime theyintended to help with, but also any other
crimes that were a reasonably foreseeableconsequence of the intended crime.
Now that we've covered the rules,let's work through some accomplice
liability hypotheticals togetherto see how these concepts work.
(04:51):
Here's our first hypo:
"Alice works as a bank teller.
One day, her boyfriend Bob tells her heplans to rob the bank where she works.
Alice thinks he's joking and laughs,saying, 'Well, if you do, remember
the real money is in the safe depositboxes, not the teller drawers.'
She also mentions that the securityguard takes his lunch at 1:00 PM.
(05:15):
The next day at 1:15 PM, duringthe security guard's lunch break,
Bob robs the bank at gunpoint.
He gets the money from thetellers' drawers and demands
access to the safe deposit boxes.
The safety deposit boxes can only beaccessed with keys from two different
managers, but only one is present,so Bob is unable to access them.
(05:38):
During the robbery, a customerattempts to stop Bob; however,
Bob shoots the customer."
For this hypothetical, we need toanalyze whether Alice could have
been charged as an accomplice toboth the robbery and the shooting.
First we need to determine whetherAlice is an accomplice to the robbery.
As a reminder, to establish accompliceliability, these elements must be
met (06:01):
[1] commission of a crime by the principal; [2] assistance or
encouragement by the accomplice; and[3] intent to assist the crime and
intent that the crime be committed.
Here we know that Bob, theprincipal, clearly committed the
principal crime of armed robbery,so the first element is satisfied.
(06:22):
Next, we need to look atwhat Alice actually did.
Was it assistance or encouragement?
Alice provided Bob pretty specific,helpful information about the
guard's schedule, including whenthe bank would be unguarded.
Bob was able to use that knowledgeto commit the robbery because he knew
exactly when the bank would be vulnerable.
(06:43):
Her statement about the safety depositboxes is less clear, though it does
seem like she was encouraging himto access the safety deposit boxes.
So as to the second element, Alice'sstatements seem to be assisting and
encouraging Bob's planned robbery.
The intent element is goingto be the hardest element to
prove in this hypothetical.
Alice's belief that Bob was jokingsuggests she didn't actually intend
(07:07):
to help him commit a robbery.
Alice will argue that her statementswere clearly a joke and were not
intended to assist or encourage Bob.
Since we know Bob couldn't get accessto the safe deposit boxes during the
robbery, Alice might explain that sheknew it wouldn't be possible to get to
the "real money", which suggests thatshe didn't have the intent to help or
(07:29):
encourage Bob, and she didn't have theintent that he actually commit the crime.
The prosecution might argue thatgiving such specific information shows
she believed Bob would rob the bankand that she would not have provided
him that information unless sheboth intended to help him do so and
intended that he complete the robbery.
(07:51):
This is not really a slam dunk inAlice's favor or against her, so
Alice might leave the question ofher liability as Bob's accomplice
for the armed robbery to the jury.
Okay, let's look at the secondissue in this hypothetical - whether
Alice can be held liable for theshooting under the natural and
probable consequences doctrine.
(08:11):
Remember, the rule here is thatin addition to any crimes that the
accomplice helped with, the accompliceis liable for any reasonably foreseeable
crimes that the principal commits.
For this discussion, let's assume Aliceis liable as an accomplice to the robbery.
The first thing to remember is thatAlice does not need to have assisted
or encouraged Bob in the shooting,nor do we have to find that she had
(08:35):
any intent to assist or encourage him.
We also don't need to know whethershe intended for him to shoot anyone.
What we are looking at here is whethera shooting that occurs during an armed
bank robbery is a reasonably foreseeableconsequence of the armed robbery.
That is, was Bob shooting someone whointervened during this armed robbery
(08:57):
a natural and probable consequenceof the armed robbery itself?
Alice might argue that it wasn'treasonably foreseeable that a customer
would intervene or that Bob would shootthe customer, because Bob didn't tell her
he planned to bring a gun to the robbery.
On the other hand, the prosecutionwould argue that it is reasonably
foreseeable that Bob would bring a gunto the robbery, because robbing a bank
(09:20):
is often done at gunpoint, and thereforeit was also reasonably foreseeable
that someone at the bank would be shotwhile Bob was committing the robbery.
The prosecution's argument is themost likely winner here, because it
is reasonably foreseeable that duringan armed bank robbery someone may be
shot, due to the nature of the crime.
(09:41):
Here's a small plot twist to thefact pattern for us to think about:
"The day after Bob tells Alice heplans to rob the bank, as Alice is
leaving for her lunch break, sheruns into Bob outside the bank.
Alice realizes he had not been jokingduring their earlier conversation
and says to Bob, 'I hope youknow I was just joking around.
(10:03):
You can't get into the safedeposit boxes and we actually
have a guard on duty all the time.
Don't rob the bank.
It's a terrible idea!' After theypart ways, Bob returns to the bank and
robs it at gunpoint as he planned."
Does this change the analysis ofwhether Alice is an accomplice
for the armed robbery?
Remember that a defense to accompliceliability is the accomplice's withdrawal
(10:27):
by repudiating any encouragementor undoing any assistance provided
before the crime is unstoppable.
Alice would be able to assert thatas soon as she realized Bob had been
encouraged by her comments and that hercomments about the safe deposit boxes
and guards might have helped him plan therobbery, she clarified she was joking,
explained that the comments regardingthe safe deposit boxes and guards
(10:50):
weren't actually true, and told him shedid not support him robbing the bank.
Bob hadn't even entered the bank yet.
He could have turned around and left.
So, the crime was still stoppablewhen she repudiated her encouragement
and undid her assistance.
Alice has a solid defense based onwithdrawal in this factual scenario.
(11:11):
Alright, let's look at a second hypo:
"Tom manages an electronic store.
During work one day, Tom's employee,Mike, who is angry about the low
wages both he and Tom are paid,suggests to Tom that they burglarize
the store that night after closing.
Tom tells Mike that he wantsnothing to do with the plan.
However, Tom intentionally leavesthe store's back door unlocked
(11:34):
and turns off the security camerasbefore he leaves that night.
Mike returns to the storeafter it is closed and enters
through the unlocked back door.
Mike steals several expensiveitems, but also decides on a whim
to vandalize the store and to set asmall fire that damages the store."
So, let's analyze Tom's potentialcriminal liability under
(11:55):
accomplice liability principles.
Just like the last hypo, we'lllook at whether Tom is an
accomplice to the burglary first.
Here, Mike committed the principal crimeof burglary, so the first element is met.
There's a strong argument here that Tom'sactions in leaving the door unlocked
and disabling the security camerasactively helped facilitate the burglary.
(12:18):
Tom doesn't have a very good argumentto the contrary, because he engaged
in two very intentional acts that leftthe store unsecured when he knew that
Mike was planning to burglarize it.
This is true, even if Tom didn't tell Mikehe was going to do either of these things.
So, the second element - assistingor encouraging - is met.
(12:40):
Looking at the intent element, we knowthat Tom verbally refused to participate,
so he would probably argue that hiswords indicate that he did not intend
for his store to be burglarized, nordid he intend to help Mike do so.
However, his actions in deliberatelycreating the conditions to
help the burglary succeed,demonstrate his true intent.
(13:03):
Tom's act of leaving the doorunlocked assisted Mike in allowing
him easy entry into the store.
And Tom's act of turning the camerasoff assisted Mike by allowing
him to do whatever he wanted inthe store without being seen.
Since it is not a normal businesspractice to leave a store completely
open and unattended, and he did itthe very night Mike said he was going
(13:24):
to commit the burglary, we can inferthat Tom intended to assist Mike in
burglarizing the store, and that hewanted Mike to commit the burglary.
Therefore, we can conclude that despiteTom's verbal protests, his actions
made him an accomplice to the burglary.
Okay, now we need to think about whetherTom can be held liable for the vandalism
(13:45):
and the arson that Mike committedduring the burglary under the natural
and probable consequences doctrine.
While the property damage from Mike'svandalism might be a natural and probable
consequence of a burglary, dependingon what exactly Mike did to vandalize
the store, Mike's act of setting a firelikely goes beyond what Tom could have
reasonably foreseen when he assistedMike in committing the burglary.
(14:07):
Remember that the natural andprobable consequences doctrine
doesn't extend to crimes thatare not reasonably foreseeable.
So, overall, Tom would likely beliable as an accomplice to the burglary
and he might be held liable as anaccomplice to the vandalism, but he
wouldn't be liable for the arson.
The last two hypotheticals show ushow accomplice liability requires
(14:28):
careful analysis of the accomplice'sthoughts and actions before the crime,
along with what a natural and probableconsequence of any given crime might be.
Even seemingly small actions cancreate criminal liability if they're
intended to help a crime succeed,and an accomplice can easily find
themselves in trouble for multiplecrimes committed by the principal.
(14:52):
Let's explore one more hypothetical.
Here's our scenario:
"Rachel works as a bartenderat an upscale restaurant.
She notices that her wealthy,regular customer William always
pays with high-limit credit cards.
Rachel mentions this to her cousinDavid, a computer expert with
a history of credit card fraud.
She gives David William's fullname, the types of cards he uses,
(15:14):
and his usual dining schedule.
She tells David, 'You'realways talking about how easy
it is to clone credit cards.
I bet you could get some money fast offthis guy.' David visits the bar during
William's usual dining time and takesa seat next to William, which allows
David to successfully create clonedversions of William's credit cards.
Instead of just using William'scredit card information to withdraw
(15:36):
cash or buy things for himself asRachel expected, David uses William's
credit card information to createfake identities, which he then uses
to commit large-scale bank fraud."
Now, let's analyze this hypo.
As always, we need to look atwhether Rachel is an accomplice to
the first crime, which is larceny.
Recall that our accomplice liabilityrules require, [1] a principal crime;
(16:00):
[2] assistance or encouragement bythe accomplice; [3] the dual intent
to encourage or assist the crimeand that the crime be committed.
We know that David committed
the principal crime of
Lee Burgess (16:11):
larceny when he stole William's credit card information,
so the first element is satisfied.
The second element is alsopretty clearly satisfied.
Rachel's assistance was
providing David specific
information about William, his credit cards, and his schedule.
She also encouraged David byspecifically suggesting that David
engage in the criminal activity,so we can confidently say that the
(16:32):
second element has been satisfied.
Similarly, the intent element iseasily satisfied here, because
Rachel initiated the discussion withDavid, provided David with details
necessary to commit the crime, andactually told David he should do it.
We can infer from those actionsthat Rachel had the dual intent
to assist in the crime and thatthe crime actually take place.
(16:54):
Since all the elements are met,we can conclude that Rachel is an
accomplice to David's crime of larceny.
The harder question is whetheraccomplice liability extends to
David's second crime of bank fraud.
Just like the other two fact patterns,we're looking at the natural and
probable consequences doctrine.
Rachel might argue that she couldn'treasonably foresee that David would
take the larceny of William's creditcard information to the next level,
(17:18):
since she only knew of David's creditcard fraud history and thought he
would just use the information towithdraw cash or buy himself things.
On the other hand, David's act of usingWilliam's credit card information to
commit other significant financialcrimes is a typical pattern criminals
use after stealing someone'spersonal financial information.
Rachel's comments seem to confirm thistoo, since she thought that David could
(17:41):
make a lot of money off of William,which implies that he could do more
than just use the information toobtain cash and buy himself things.
Given these comments, there's astrong argument that it was reasonably
foreseeable that in addition to, or maybeinstead, of stealing and using William's
credit card information for himself, Davidwould also use it to commit other crimes.
(18:05):
So, David's additional crime of bank fraudis a reasonably foreseeable consequence
of the intended crime, and Rachel wouldlikely be held liable as an accomplice
for both of these crimes under the naturaland probable consequences doctrine.
So, this hypothetical shows us howaccomplice liability can extend
to significant crimes when arelatively simple criminal scheme
(18:26):
expands into something much larger.
And that's all we have time for you today.
If you enjoyed this episode of theBar Exam Toolbox podcast, please
take a second to leave a review andrating on your favorite listening app.
We'd really appreciate it.
And be sure to subscribeso you don't miss anything.
If you have any questions or comments,please don't hesitate to reach out to
myself or Alison at lee@barexamtoolbox.comor alison@barexamtoolbox.com.
(18:51):
Or you can always contactus via our website contact
form at BarExamToolbox.com.
Thanks for listening, and we'll talk soon!
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