This article has been written by Cheyanne Pereira, currently pursuing her B.A.LL.B. from Amity University, Kolkata. It aims to provide a guide for the various elements of crimes, the parties involved in it, the punishments and defenses for the offenses committed by them, and so on. Special emphasis in this article has also been put on the Pinkerton Doctrine, RICO Act, and Wharton’s Rule to understand its applicability in relation to parties to a crime. 

It has been published by Rachit Garg.

Table of Contents


As per the legal system prevalent in the United States, the person who commits the crime is not the only party who is held responsible. Any individual who had in some way or the other participated or facilitated the commission of the crime is also held liable. More often than not there are several parties involved in a crime. Parties to a crime, in simple words, means all the people that are involved in the commission or carrying out of a crime. You may have heard of terms like principal offender, accomplice, and accessories to a crime. You may also be familiar with terms such as assisting, aiding, and abetment of a crime. It is important for a person facing charges, or even the general public to be aware of who the different parties are and what penalties they may face for their involvement in the crime. Therefore, to understand the role played by each party in a crime and the liability or charges that they may be facing, we must first understand the definition of crime and the several components or elements of a crime. 

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Crime is an illegal act or omission of an act that is punishable under the laws laid down by the legislature. Some crimes are prohibited by a statute but are not inherently evil. These are considered malum prohibita (bad because prohibited).  Other crimes are considered evil by the general community standards. These are considered malum in se (bad in themselves). The original justification for common law crimes was formed by the idea of mala in se. However, today, the category mala in se consists of many crimes that are prohibited by the statute.

Government Attorneys prosecute criminals. These attorneys could be representatives of a country, city, state, or federal government. The Attorney General of the United States, city attorneys, federal attorneys, and the attorney general of a state are some examples of this. Crimes are adjudicated based on the rules of criminal procedure. A crime has several elements that must be proven to charge someone with the commission of that particular crime. Every crime in the USA is made up of more or less the same basic components. These are known as mens rea, actus reus, concurrence, and causation.

Elements of a crime

Primary elements

Mens Rea

Mens Rea is the Latin term for a “guilty mind”. It refers to the state of mind of the person who is accused of committing a crime. The guilty intention or wrongful intention that the accused harbored while committing the crime is a very important factor in proving his guilt. In a case where a murder has been committed, the intention of the accused must be proved in addition to the actions committed by him, in order to prove that the allegations against him are true and he was indeed intending to commit the crime. This is an important factor in determining the severity of the punishment for the defendant. Most states in the USA follow the model penal code when categorizing mens rea. There are four categories of mens rea that are:

Acting on purpose

Acting with the intention to commit an illegal or dangerous act.


A person is aware that their actions would most likely result in some harm.

Reckless behavior 

A person may engage in a certain kind of behavior or act which is reckless or dangerous in nature.


A person is said to be negligent when they fail to be careful or cautious of their actions which a normal or reasonable person would not have been in that scenario.

Actus reus

Actus Reus is a Latin term for a “guilty act”. It is the physical aspect or conduct related to the crime. This is an essential element of crime. For an activity to be considered as a crime there must be an illegal physical act. A guilty intention alone is not always enough to constitute a crime. In the case of murder, if a person intends to kill someone but does nothing to carry out his intention he has not committed a crime. Therefore, in order to prove that someone has committed a crime, there must be a guilty act in addition to the guilty intention. Without an illegal act or omission, there can be no crime unless it is an exceptional case like conspiracy. The omission of an act that one is required by law to perform can also constitute a crime. For example, the intentional omission of paying taxes is a crime and one can be charged for the same. 


Concurrence occurs when there is a presence of both the mens rea as well as the actus reus. Both elements are essential in proving the guilt of the person who has been accused of committing the crime. However, it is not always a mandatory element in proving that a crime has been committed. As mentioned above in the previous example, there are cases where only the mens rea or actus reus is present and it is enough to prove that the defendant is guilty. An example of this is when a person has committed statutory rape. Statutory rape is when a person has shared sexual relations with a person who is underage or below the age of consent. This age limit differs from state to state in the USA. In such a case, even if the adult had no mens rea or no knowledge regarding the age of the person that they have shared relations with, they are still guilty of statutory rape and can be charged for the same.


Causation in simple words means the cause of the crime or the loss or harm suffered. For example, if a person A commits a criminal act and as a result of his actions a person B suffers from an injury or damage then A (the person that committed the act) will be charged for or held liable for that crime. To establish causation, there are several principles which are as follows:

But-for test 

The first is a test known as the but-for test. The but-for test basically puts forth a question that is if the person had not acted the way he did or committed the act in question, would the harm or damage have occurred anyway? If the answer to that question is no then the person accused is guilty of causing the harm through his actions. However, this test is not the most reliable as it cannot apply to all situations.

Proximate cause

The next principle is the proximate cause. Proximate cause puts forth several questions related to the foreseeability of the event that led to the harm such as if the person harmed could have anticipated the loss or harm incurred due to the actions of the defendant. 

Intervening cause

This refers to a happening that takes place after the defendant’s actions and before the harm or damage that may have occurred due to the defendant’s actions. This leads to a break in the flow of events thereby causing a disruption to the chain of causation. An intervening cause suggests that perhaps the person who started the events may not be the reason for the damage caused. 

Independent sufficient causes

This refers to a situation where there are numerous reasons for the damage or injury caused. The defendant would be held guilty for these damages only if his contribution to the events played a big role in causing the damages. If the damage would have taken place even without the defendant’s actions, then he cannot be held liable for the same.

Secondary elements 

The elements listed above are the primary elements as they are all part of most crimes that occur. However, there are some other elements that may be present in some crimes that are not necessary to prove that the crime has taken place but can help in understanding the reason behind why one may have committed a crime. 


An attempt to commit a crime is when a person has a guilty intention and takes the necessary steps to carry out his intention however, he ends up failing. Attempting to commit a crime consists of three important factors which are

  • Intent
  • Conduct or action taken to carry out the intention
  • Failure to complete the crime

Attempting to commit crimes is also punishable by law and a person who is charged with the same will face penalties. These penalties are less severe in nature as compared to the punishment that one would be given if one were successful in carrying out the crime. For example, attempt to murder, attempt to commit rape, and so on.

Attendant circumstances

These are basically the facts of the situation. It is different from mens rea and actus reus. These facts play an important role as they help the court in deciding the gravity of the crime and the liability of the defendant. Attendant Circumstances are also known as external circumstances.

Extenuating Circumstances

These are facts that can help to reduce the severity of the defendant’s punishment by helping the court understand the situation in a better light. These facts are taken into consideration to ensure that a person is charged with a sentence that is in proportion to the severity of the crime. The reasons behind his actions and the circumstances which resulted in the carrying out of the crime are the main elements of extenuating circumstances. The best example of this is self-defense. A person acting out in self-defense does so because he has reason to believe that he will be harmed or severely hurt if he does not exercise his right to private defense.

Types of crimes in the USA

There are several different categories of crimes in the USA. They are divided into different groups such as crime against property or crime against a person and so on. Crimes when classified according to their severity, are divided into four categories. These are: 

  • Felonies
  • Misdemeanors
  • Felony-misdemeanors 
  • Infractions


Felonies are crimes that are very serious in nature. The sentences for these crimes range from imprisonment to death. They involve wrongful or heinous intentions accompanied by the causing of serious injury, harm, and sometimes death. The most common felonies to occur in the United States are crimes involving drugs, crimes against property, murder, assault, and so on. They are divided into non-violent and violent crimes and their classifications differ from one state to another.


Misdemeanors are those crimes that are less severe than felonies. The penalty varies across the different states. In general, misdemeanors are those crimes that contain a jail time of one year or less. In some states, the period of incarceration may be more than a year. Every state categorizes misdemeanors differently. Some examples of misdemeanors are drunk or reckless driving, trespass, driving with an expired license, disorderly conduct, and so on. Again these differ from one state to another. Though these are less severe in comparison to felonies, being charged with a misdemeanor should not be taken lightly at all.


These are crimes that can either be charged as a felony or a misdemeanor by the state. It depends on the nature and severity of the offense. The decision of whether or not the crime should be charged as a felony or a misdemeanor is made by the judge or in some instances a prosecutor.


These crimes are the least serious of all. They are also known as violations. The punishments for these crimes are naturally less severe than the others; in most cases, they are just fines. Examples of infractions are traffic violations such as jaywalking, speeding, and parking in a no-parking zone.

Punishment of a criminal

Punishment as we know is the term used to define the sentence that is given to the defendant if he is found guilty of committing an offense. The punishment given depends on the nature of the crime. Punishment is important as it reflects the nature of the crime and ensures that a perpetrator is brought to justice for the actions committed by him. There are essentially four types of punishment in the USA. These are 

  • Fines 
  • Community service
  • Imprisonment 
  • Death sentence 

Parties to crime in the USA

Parties to a crime, in simple words, means all the people involved in a crime. People usually do not carry out a crime alone. They depend on the help of other individuals. Be it in the planning process or the securing of an alibi, the commission of a crime requires the effort of multiple individuals. These individuals are known as the parties to crime or the parties involved in a crime. For example in the state of Georgia, any person who is directly involved in the commission, aids or abets in any way, provokes or helps in the hiring process of the crime is considered to be a party to the crime. 

Now in early times according to common law principles, there were actually four parties to a crime. They are:

  • Principal in the first-degree
  • Principal in the second-degree
  • Accessory before the fact
  • Accessory after the fact

However, now most states in the USA divide parties to crime into two categories:

Principal in the first-degree

When a crime involves several parties, the person who actually commits the crime is known as the principal in the first degree. For example, there are two people X and Y and they are attempting to commit a murder. If X is on the lookout and is driving the vehicle to help Y get away, then X is the principal in the second degree. Now Y is the one who is actually committing the murder and therefore in this case he is the principal in the first degree.

Accessory (principle in the second degree) 

An Accessory is a person who facilitates the commission of a crime. They may aid or assist in any way but they do not actually carry out the crime. There are two categories of accessories to a crime. They are:

Accessory before the fact

They have helped in carrying out, planning, or have encouraged the carrying out of the crime in some way. So anyone who has helped an individual or a group of individuals with the crime, before it has actually taken place is known as an accessory before the fact. This is nowadays known as an accomplice to the crime. Accessories before the fact are now charged as accomplices by most states.

Accessory after the fact

An accessory after the fact is someone who is aware that a crime has been committed and assists the person who has committed the crime in avoiding arrest either by providing a hiding place or helping them to cover their tracks. This a completely separate offense and the punishment of the same is different when compared to the liability of an accomplice. An accessory after the fact is usually charged with the commission of less severe crimes such as misdemeanors.

Elements of an accessory act

In order to prove that someone is guilty of being an accessory after the fact to a crime, there are some elements required. In most States of the USA, these are evading arrest, concealing of crime or evidence, or helping the principal in the first degree to escape from being arrested or prosecuted after the crime has been committed. In some states, the defendant can be convicted of being an accessory to a misdemeanor, but in most states, they are convicted of being accessories to felonies.

Some examples of being an accessory after the fact to a crime are

  • Helping someone to clean a crime scene
  • Hiding a weapon knowing or even suspecting that it has been used in a crime
  • Driving a vehicle to help the principal escape the scene of the crime
  • Harboring a fugitive or a person who is suspected of committing an offense

Importance of mens rea in accessory after the fact

In general, to be found guilty of being an accessory after the crime it must be proved that a person had awareness or knowledge about the crime or must have had an intention to commit the crime. As mentioned earlier, the accessory does not necessarily have to be present or have to commit the crime to be convicted. His abetment or facilitation with the same is enough for the person to be considered an accessory after the fact.

Penalties for accessory after the fact

The punishment given for accessory after the fact depends on his contribution to the case and of course the nature of the crime itself. It can include a fine, imprisonment, or probation in case of a misdemeanor. In cases of felonies, the punishment is more severe, including a longer period of imprisonment or probation or a heftier fine depending on the crime committed.

Defenses available for accessories after the fact

Some possible defenses available for a person who has been charged with being an accessory after the fact are:


A person may use the defense of being threatened or coerced by another and therefore they were forced to assist with the crime. In this case, a person would have to prove that they were facing a potential threat or danger and were put in a position of fear.

Lack of awareness or knowledge

If the person who is facing the charges is somehow able to prove that they did not know that they were facilitating a crime or that they were being an accessory to a crime then they can take up the defense of lack of knowledge.

No obligation to report

In some cases, unless the person belongs to a certain profession like a professor or medical professional, they are under no obligation to inform the officials of a crime that has taken place, and for this purpose, they may not be able to be charged as being an accessory to the crime. But this defense cannot be used if the person has actually helped in concealing or hiding a crime.


An accomplice may also be known as an aider or abettor and is liable for the crime committed by the principal. The accessory after the fact, on the other hand, is liable for a completely separate offense. Therefore an accomplice to a crime is subjected to more severe penalties as compared to the accessory after the fact. An accomplice may also be known as a principal in the second degree, depending on his contribution to the case.

Elements of an accomplice

In most states, the accomplice to a crime is found to be liable for the same crime as the principal. The general rules that are followed in order to prove that someone has been an accomplice in a crime are-

  • That the crime was not committed by the person facing charges of an accomplice
  • That the person in question has aided, facilitated, or encouraged another to commit a crime
  • That the person had the knowledge and intention to facilitate the crime

Mens rea of an accomplice

As far as the mens rea of an accomplice is concerned there are some important points to be kept in mind such as 

  • if the person has the intention to commit the crime that is actually being committed by the principal in the first degree. In this case, the rule that is usually followed by most states is that the person facing charges has to have the mens rea to commit the crime in question.
  • and if he has the intention of facilitating this crime through his actions. This point differs from state to state. In some states in order to prove that someone has been an accomplice it is required to be proved that he participated in the commission with the intention to facilitate the crime. In others, only the knowledge or awareness that his actions would help the perpetrator is enough. In this situation even if the accomplice did not have the intention of facilitating the commission of the crime but just had the knowledge that his actions would help, he can be convicted of being an accomplice.

Actus reus of an accomplice

The Model Penal Code of America defines an accomplice as someone who facilitates or tries to facilitate another individual in the planning or commission of a crime. In most states of the USA and even federally, the general rule followed is that a person who is facing charges of being an accomplice must have intentionally acted in a way to facilitate the happening of the crime. Some terms that you may have heard or may be familiar with in this regard are aiding, abetting, inducing, and so on. In some states such as New York, words are enough to convict someone of being an accomplice. However, in other cases just being present at the scene or even helping the person to leave the scene is not enough to convict a passerby or bystander of being an accomplice to that crime.

Penalties for being an accomplice in a crime

The penalties for an accomplice of a crime are usually dependent on the facts and situation of the case at hand. Several questions may arise, for example:

  • What was the role played by the accomplice? 
  • To what extent were they involved? 
  • How much did they know about the crime? and so on. 

The general practice followed when it comes to punishing a person who is facing charges for being an accomplice to a crime is that the person is generally subjected to the same charges as the principal in the first degree. However, if the role played by the accomplice was minor or if they were unaware of the consequences of their participation then they may be subjected to a less severe punishment in comparison to those who had a bigger contribution to the crime. In order for a person to be convicted of the crime, it must be proven that the person in question has facilitated the crime by his actions, abetment, or even by encouraging the person with his words, to commit the crime. If a person simply had knowledge of the crime but had no hand in its commission or did not help or provoke the principal in the first degree to commit the crime, then the person cannot be charged with the same penalty as the principal. Proving the person’s facilitation of the crime may be difficult in this case as well.

Defenses available for an accomplice to a crime

Abandonment of the crime or withdrawal of support by the person facing charges

If a person can prove that they withdrew their help before the crime took place or has tried to stop the happening of the crime and has notified the authorities of the happening of the same, they can use the defense of withdrawal if faced with charges. Other defenses are:

False accusation

If a person can prove that he or she was falsely accused of a crime that they are facing charges for by providing some evidence to support their argument. For example, an alibi to prove that they were not in the country when the crime had been committed. 

No awareness or knowledge of the crime

If they prove that they were not aware of the planning or the commission of the crime. 

Absence of mens rea

If it is proved that they had no intention of committing the crime in a case where mens rea is necessary to prove that someone is guilty.


Like in certain cases a minor would probably not be facing the same charge as an adult or vice versa. 

Being an accessory after the fact

If a person is able to prove that they are an accessory after the fact and not an accomplice to the crime, then they could be charged with a less severe punishment.

Duress or mental stress

Proving that they were under some duress or were coerced to commit the crime.

Types of accomplice liability


When two or more people decide to commit an illegal or criminal act and then take the steps to carry out its completion, it is called a criminal conspiracy. The actions that they take do not have to involve the actual crime but rather must show that the people who were involved in the conspiracy were intentionally trying to commit the crime. These persons may be convicted even if the crime had not been committed as it is an inchoate offense or incomplete offense.

Elements of a conspiracy

An agreement to commit an illegal act or criminal act

This agreement may not be spoken or written. This agreement must be entered into between two or more people. It can be determined or derived from the facts of the case. For example, if a person A and a person B hold a meeting to plan a bank robbery.

There must be an intention to commit a crime

The mens rea of all the parties to the crime is important in a conspiracy. All the individuals involved in the conspiracy must have the intention to commit or carry out the crime.

An act must be committed

In most states, the required element is that at least one person involved in the conspiracy must perform an act to further the commission or complete the crime. This element exists as a way to avoid convicting people just for mere discussion of committing a crime. For example, if a group of people decides to rob a bank and in order to carry this further, one or more of them decide to employ a driver to help them get away from the crime scene then this would count as an overt act.

Penalty for a conspiracy

As per the federal law provisions (Title 18 U.S.C. § 371), the punishment for conspiracy includes five years of imprisonment as well as fines. A misdemeanor would include a less severe penalty as compared to a felony. However as per the state laws it differs from one state to another.

Vicarious liability

Vicarious Liability, also known as imputed liability, is a legal principle according to which a person can be charged for a crime committed by another individual. In civil law, it basically allows for the court to hold a person or a legal entity liable for actions done by another. Therefore what this means is that a company can be held liable for the illegal or unlawful actions committed by its employees. The company in this case would be referred to as the principal and the employees would be referred to as the agents. Now if during the course of employment, an employee (the agent) injures someone or causes some damage to someone by his actions, his employer (or the principal) can be charged for this action and be held liable even if the employer himself did not commit the injury or damage in question. It came into existence through the doctrine of respondeat superior.

The doctrine of respondeat superior

It means “let the master answer” in Latin. It is a doctrine that holds an employer liable for the actions of his employees. It enables a victim to sue an employer for an injury or damage caused by their employee. It provides an alternative method of obtaining justice for the victim. For example, if a person A files a case against a person B for some injury caused by him. In this case, A may be successful in suing B but B may not have enough money to provide adequate compensation for A. However, as per the doctrine of respondeat superior, if B hurts A while doing some work for C (his employee), then A can sue C and obtain compensation for himself if C is found to be guilty.

Though the conditions differ from one state to another, in general, the following must be proven by the plaintiff to hold the defendant accountable under the respondeat superior doctrine:

  • The defendant must have been working as an agent on behalf of his employer when the injury occurred.
  • The defendant should have been working within the scope of his employment.

In order to determine if an employee was acting on behalf of his employer, there are two tests that are generally used. These are the benefits and the characteristics test.

The benefits test

This test aims to determine if the employee was acting for the benefit of the employer. These conditions are met when the employee is permitted to be present on the premises or campus of his workplace and is not present for social or alternative purposes. For example, if the employee was attending a company party that was not mandatory and the injury in question occurred at the party, the company would not be held liable for his actions as his presence or actions were not in any way beneficial to the company. If however, the employee was present for a mandatory meeting and the injury occurred at this meeting then the company would be in a position to be held liable for the actions of the employee as he was there for the benefit of his employer.

The characteristics test

This test aims to determine if the actions of the defendant are part of the regular job description. For example, if the employee injures a man while delivering goods for his employer then this would make the employer liable if the employee’s job is to deliver goods or delivery is a regular part of his job. If however the defendant was running a personal errand then his employer would most likely not be held liable as this was not part of his job description.

Some other examples of the Doctrine of Respondeat Superior are:

  • A hospital would be liable for the behavior or negligence of their staff if their staff members caused injury to an individual through their actions.
  • A delivery agency would be held liable if their employee collided with a pedestrian while driving recklessly to deliver the goods to the customers.
  • A property owner would be in a position to be held liable if the negligence of his manager causes injury to an individual who is residing on his premises.

Vicarious liability in criminal law

The general rule pertaining to criminal law with regard to vicarious liability is that a person can be liable for the actions of his employee or someone in a subordinate position to him. Vicarious Liability is mainly used in civil matters. There are some exceptions where vicarious liability can be used in criminal law matters. There are some theories of vicarious liability under criminal law. These are: 

Criminal Conspiracy 

As per the law in the United States of America, vicarious liability allows members of a conspiracy to be charged for the crimes committed by their co-conspirator if the co-conspirator’s actions were done to facilitate or carry forward the commission of the conspiracy.

Accomplice liability 

A person who is abetting or facilitating the crime can be held liable but usually, this person is directly liable and not vicariously liable for other crimes like obstructing justice.

Felony murder

As per common law, if a person is committing a felony and during the commission of the felony he murders a person, he would then be directly liable for this murder. This is known as the rule of felony murder. In a case of felony murder, the mens rea to commit murder is not important for a conviction. As long as a person has the intention to commit the felony he can be held liable for the murder that has occurred in the process despite the absence of the intention to kill. The concept of felony murder emerged in 1716 in England. However, it was banned after 1957. The United States still uses the concept of felony murder in several states but it has been amended. For example, in Minnesota, there is the Felony Murder Law reform.

Application of the doctrine of felony murder

As per this doctrine, a person can be convicted of the following without the mens rea to commit a murder:

  • First-degree murder
  • Second-degree murder

In order for this doctrine to apply the crime must consist of the following: 

  • The person or people involved must be involved in the commission of a felony
  • the murder of a person during the course of its commission the murder of a person 

Vicarious liability for felony murder

A person committing a felony murder will be held directly liable for the same. If he had any accomplices or co-felons, they too would be liable under the principle of vicarious liability. Examples of situations where vicarious liability arises in a felony are rape, murder, robbery, arson, kidnapping, and so on.

Parties in a felony murder

The crime of Felony Murder can be committed by the following parties:

One party

If a person commits a felony by himself and in the process ends up murdering somebody, the felony murder doctrine would apply in this case. For example, If A has the intention of committing arson and for the furtherance of his intention he sets fire to a building which he has presumed to be empty. However, he is unaware that a person is inside the building and the fire causes the death of the person. In this case, A would be held liable for felony murder.

Two or more parties

If two or more people commit a felony, then both parties would be held liable for felony murder. An example where two or more people are required to commit a felony is armed robbery. In the course of the commission of this felony if a murder occurs, then all the members would be convicted of felony murder. Even if a felon was not there at the scene of the crime or did not actually commit the murder, he can be held vicariously liable for aiding the crime in any way, and if he shared the intention to commit the felony.

Victim or bystander

Felony murder can occur even if an accomplice to the felony has not killed anyone. If a victim or bystander tries to stop the felons and in attempting to do so accidentally kills another person, then the felons in this case would also be charged with felony murder.

Defenses for felony murder 

A felony did not take place 

The conviction of felony murder cannot take place without the occurrence of a felony. As per the laws in most states in the USA, a dangerous felony must have taken place. These include kidnapping, rape, arson, and so on. This is one of the most common defenses for felony murder.

The murder did not take place during the commission of a felony 

For a felony murder conviction, the murder has to take place during the commission of the felony. If the murder takes place later it would not be counted as a felony murder.

Felony murder homicide: Penalties

The description of felony murder is put by many states in their statutes for first-degree murder. This means that a charge of felony murder could make a defendant subject to the death penalty. Alaska, Delaware, Illinois, and Massachusetts are some of the states that have abolished the death penalty and have specifically limited the maximum punishment to life imprisonment. Other states may classify felony murder in the second degree. They could also provide for an affirmative defense or allow judges to consider the explicit involvement of the defendant in the felony. Lower sentences could be provided based on lower participation in the crime. The state of California modified the application of its felony murder law in 2018. In most cases, the state must demonstrate the following to charge felony murder-

  • The killing was actually committed by the felon.
  • There was an intention to commit the killing.
  • They acted as a major participant and acted with reckless indifference to human life.

However, Section 189 of the California Penal Code states that if the victim of the killing was a police officer who was engaged in their duties, then the intention to commit the felony crime remains sufficient.

California Supreme Court: People v. Sarun Chun

The California Supreme Court overturned a felony murder conviction in People v. Sarun Chun (2009). This was a case of drive-by-shooting. The defendant was a backseat passenger. He denied being the shooter. A victim who was present in another car was shot and killed. The defendant was acquitted by the jury of attempted murder and of shooting at the vehicle. He was convicted of felony participation in a gang as well as felony murder. This was based on the lower court’s instructions based on felony murder. In its decision, the court found no proof of collateral intent on the part of the defendant to cause death and also that the shooting of the vehicle was assaultive in nature. It was merged into the homicide

Death penalties: Limitations for felony murder

The death penalty for felony murder could be faced by the defendants and co-defendants.  Conflicting cases of this matter have been observed. The Supreme Court in Enmund v. Florida (1982), ruled that the State of Florida could not execute a co-defendant who was the gateway driver in an armed robbery. The role of the Co-defendant in the felony was minor and the attempt to kill was absent and so was the intention to kill. The Court concluded that the Eighth Amendment prohibited a death sentence in the underlying circumstances as an execution would be cruel, and it would be an unusual punishment as there was no proof of his liability for the killings.

Revised death limitations for felony murder: Tison v. Arizona (1987)

The U.S. Supreme Court modified later the limitation on using the death penalty in Tison v. Arizona, (1987). Under circumstances when the facts of the case were different, the Court considered the death penalty for two brothers who had taken arms inside of prison to assist in the escape of prisoners. They were involved in a roadside robbery of the victims. One of the prisoners who had escaped, shot, and killed the victims. This was in the presence of the two brothers. The circumstances of the case were distinguished from that of Enmund v Florida. The Court in its decision that sufficient culpability could be shown and the death penalty could be imposed in felony murder cases where:

  • The defendant had to be a significant participant in the felony.
  • The felony committed was reckless indifference to human life

Types of vicarious liability

Vicarious Liability usually applies to any circumstance where a person is acting on behalf of someone else or acting as per someone’s instructions or in a situation where a company/individual controls another’s actions and therefore they are liable to be held guilty for an offense committed by their employee. Some common types of vicarious liability are:

Employer and employee relationship

The most common situation to occur is when an employee is working on behalf of their employer. As mentioned above there are several situations where an employer can face charges for the actions of their employee and to sum it up they are:

  1. If the employee was acting in a way that would benefit the employer.
  2. If the employee was working within the scope of his duty.
  3. If he was doing a job that was part of his normal work duties.

A partnership relationship

In a partnership relationship, every partner is liable for the actions of his other partners. They all act on behalf of each other. So in this case, if a partner commits some harm to a client, his other partners would be liable for the same. Every partner is vicariously liable for the actions of his other partners so long as the action is related to the partnership in some way and not a personal matter. For example, if one partner is running personal errands and causes damage to another person’s car due to his rash driving, his partner would not be held liable in this case.

Parent’s liability for the action of their children

There are some situations where a parent may have to be held liable for the actions of their children. For example, if a child vandalizes a place or damages someone’s property, then the child’s parents could be held liable for the damages. 

Landmark case laws

There are some important case laws that we must take a look at. Each of these cases presented a unique situation for the court to deal with. The court dealt with the legal complications and questions related to conspiracy, accomplice liability, and so on in each case and even put forth some new rules and doctrines to strengthen the legal framework for future scenarios.

Pinkerton doctrine [Pinkerton v. United States (1946)]

The Pinkerton doctrine is a doctrine that was created to convict a conspirator of a substantive offense that was actually committed by his co-conspirator. In a case of conspiracy, a person facing charges can be held liable for a substantive offense in any of the following three ways:

a) Actually committing the offense

b) Aiding and abetting the offense

c) Facing liability under the Pinkerton doctrine

As per the rules of the Pinkerton doctrine, if a conspirator commits a criminal act, then all the conspirators can be convicted of that act and that act will be taken to be committed by all the conspirators even though they may have not directly committed or played a role in the crime 

History of the Pinkerton Rule

The Pinkerton Doctrine originated from the Supreme Court Judgement in the Pinkerton v. United States (1946) case in 1946. The Supreme Court introduced a rule for vicarious liability according to which a person could be held liable for the substantive offenses of another individual, even if the person did not participate in the same. 

Pinkerton v. United States (1946)

Facts of the case 

There were two brothers, Walter and Daniel Pinkerton who were distributing whiskey illegally. They purchased the whiskey illegally and then held the stock of alcohol on their farm for the purpose of illegal distribution. Instead of charging both brothers with bootlegging, the government charged them with conspiracy for tax evasion. They were also charged with two substantive tax law violations. Despite Walter committing all of the substantive offenses and Daniel Pinkerton committing some of the crimes, he was charged with the same charges.

Issues of the case

There was not enough evidence to prove that Daniel Pinkerton had actually participated in the commission of the crime; the jury was instructed by the district court that both brothers could be charged for the substantive offenses committed by each other. Daniel Pinkerton, in his defense, put forth the argument that he had nothing to do with the substantive offenses that his brother had committed. To support his argument he relied on the case of United States v. Sall (1940) where it had been decided that co-conspirators can be convicted only if they have committed the substantive offenses.


The Supreme Court of the United States ruled that if every member of a conspiracy has decided to commit an offense, they will in turn all be held responsible for the substantive offenses committed by each other as well. Therefore, Daniel Pinkerton was liable for Walter Pinkerton’s offenses and the court decided that all members of a conspiracy should be held liable for each other’s substantive offenses. Therefore, a person can be held liable as per the Pinkerton doctrine if he was a part of the conspiracy. He was still a member of the group when his co-conspirators had committed the crimes. The substantive crimes were committed for the purpose of facilitating the conspiracy.

Penalties for liability under the Pinkerton Doctrine

The punishment for being held liable as per the Pinkerton rule will depend on the nature of the crime committed. It also depends on the laws of the state that you are residing in. For example, as per the laws in Pennsylvania if the conspiracy falls under the category of a misdemeanor then the charges could include up to five years of imprisonment or a fine of ten thousand dollars. Whereas a felony will include imprisonment of around seven years and a fine of fifteen thousand dollars.

Wharton’s rule (Ianelli v. United States,1975)

Wharton’s rule originated from the case of Shannon v. Commonwealth (1850). In this case, the court had dismissed an allegation of the conspiracy to commit the offense of adultery that was brought up as the state was unsuccessful in securing a conviction for the substantive crime. This rule was created during a time when the laws regarding conspiracy were in the process of development. As per the general practice, an individual can be held liable for a substantive offense and for conspiracy to commit a crime. The Whartons rule puts forth an exception. It says that a mere agreement between two parties to carry out an offense is not enough to prosecute them for conspiring to commit a crime if the crime in question requires two people to participate in order to be completed. Although, if another person agrees to commit the crime as well then all members can be convicted of conspiracy. 

Therefore what this rule essentially does is it prevents a person from being convicted of a conspiracy if a substantive offense requires more than one participant in which case the crime results in consequences that affect the parties themselves, rather than the society. A simple example of this is if two persons A and B decide to carry out a bank robbery. If the crime requires the participation of only two people then A and B cannot be charged with conspiracy. However, if another person C joins A and B and helps them to rob the bank then all three of them can be charged with conspiracy. This rule has been named after an eminent criminal lawyer named Francis Wharton. It is also referred to as the concert of action rule. It is important to keep in mind that Wharton’s rule only applies to cases where more than one person is required to commit a crime.

Ianelli v. United States (1975)

Facts of the case

In this case, Robert Ianelli and the other petitioners were all charged with conspiracy to violate a federal statute related to gambling (18 U.S.C. § 1955). As per this federal statute, it is illegal for more than five people to own, manage, supervise, and operate a gambling business that has been banned by the laws of the state. All the petitioners were charged and convicted of both the substantive offense and the crime of conspiracy.

The issue before the court

The issue whether the court is that if the Wharton’s rule would apply to section 1955 (the charge for conspiracy)


The Wharton’s rule is only applicable to those crimes where the participants in the conspiracy are the ones who are committing the substantive offense. In this case, the consequences of the crime committed will not only affect the members of the conspiracy and the gambling operation requires the participation of people who are not conspirators as well. Therefore the Wharton’s rule does not apply here.

RICO Act (Sedima, S.P.R.L. v. Imrex Co., 1985)

The RICO or the Racketeer Influenced and Corrupt Organization Act was introduced in 1970. This act was brought about to deal with mobs and other criminal groups. Before the introduction of this Act, the courts could only try the people involved in mob related crimes individually. If one member was convicted of a particular crime, the court could not try the whole gang simultaneously. The RICO Act enabled prosecutors to now bring down a whole crime organization by trying them all at once. This act has now expanded and can be used in cases of fraud, theft, political crimes, cybercrime, and others. The RICO Act prohibits the acquisition, operation, or acceptance of funds from an organization through racketeering. 

Sedima, S.P.R.L v. Imrex Co. Inc. (1985)

Facts of the case

In this case, Sedima and Imrex entered into a partnership to carry out business ventures. Imrex was accused by Sedima of cheating and profiting by billing them for false expenses. A civil suit was filed under RICO. 

The issue of the case

The issue is whether the charges under the RICO act are valid in this scenario as the defendants had not been charged with criminal charges under RICO.


It was held by the court that RICO has a wide scope and it does not only apply to mob activities. It may apply to regular businesses as well. The defendants need not be convicted of criminal charges first in order to be held liable.

How is someone charged under the RICO Act?

Activities that fall under the RICO Act are embezzlement, gambling, extortion, homicide, kidnapping, robbery, witness tampering, arson, and so on. Under the RICO Act, these offenses are known as predicate offenses and in order to be convicted under the RICO Act a person must have been involved in at least two predicate offenses within a ten-year period. The offenses committed must be related to a legal or illegal enterprise.

Penalties for violation of the RICO Act

  • Imprisonment up to twenty years
  • A fine of 250,000 dollars or twice the amount of money earned from illegal activities.
  • Life imprisonment for severe crimes.
  • Freezing of the accused’s assets by the government before the trial

Enmund v. Florida (1982)

Facts of the case

Earl Enmund was recruited to drive the vehicle that would serve as the getaway car after the commission of an armed robbery. The occupants of the property were an elderly couple, Thomas and Eunice Kersay. On the night of April 1, 1975,  Earl Enmund’s partners, Samson and Jeanette Armstrong entered the couple’s premises and tried to rob the couple. The occupants of the property were murdered by the other members of the crime when they attempted to fight back and stop the robbery. The accomplices had committed the murder and the robbery while Enmund was just waiting for his companions in the vehicle outside the house. However, Enmund was charged with murder in the first degree and sentenced to the death penalty by the trial court.

The issue before the court

Should Earl Enmund be sentenced with the death penalty for abetting the murder?


It was held by the court that as per the Eighth Amendment of the United States, a person who only aids or facilitates a crime during the commission of which a murder is committed by his companions will not be charged with murder as he has not committed the murder himself. As Enmund had only abetted the crime by driving the vehicle and had not actually committed the crime, he could not be held responsible to the same degree as his companions who had actually committed the murders. The Supreme Court of the United States held that he did not share the same intention to kill as his companions and he had only abetted the crime of robbery and therefore his punishment would not be in proportion to his actions.

People v. Luparello (1979)

Facts of the case

In this case, the defendant, Thomas Gaetano Philip Luparello was a chiropractor who was engaging in an extramarital affair with his patient, a woman named Terri Cesak. Terri returned to her husband Ed and moved away to another country. She was pregnant with the baby of the defendant. Attempting to elicit information about the couple’s whereabouts, the defendant and his friends beat up the couple’s friend Martin. Unsuccessful in their attempt to find out the couple’s location, two of the defendant’s companions returned to Martin’s house and killed him. The defendant however was not present during the killing. He was convicted of murder.

The Issue of the case

Whether the accomplice’s liability is restricted to offenses that an accomplice intended for a co-conspirator to commit?


A person who is aiding or abetting a crime is liable for the crimes that they have predictably put into motion through their action. Accomplice liability is not only restricted to intended crimes but all the crimes committed by the co-conspirator. Even if the murder was not part of Luparello’s plan or intention, he is still responsible because he has encouraged the offense committed by his friends. Therefore, this case provides an example of a situation where all the members of a conspiracy are held responsible for each other’s offenses as per the theory of accomplice liability.


Earlier as per common law principles there were four parties to a crime. The principal in the first degree was the person who actually committed the crime. On the other hand, the principal in the second degree was present at the scene of the crime and assisted in the commission of the crime. An accessory before the fact helped in preparation for the commission of the crime, although he might not be present at the scene of the crime. An accessory after the fact provided help after the commission of the crime. This could be providing aid to escape arrest, prosecution, and conviction.  

However, in modern times, there are only two parties to a crime in the USA.  This includes a principal and his accomplices. In common law, accessories have the same role as accessories after the fact. Although highly controversial, it is interesting to note that a person convicted for being a party to a crime could suffer harsher penalties than that person who directly committed the crime. In simple words, a party to a crime could be punished more severely than the person who actually committed the crime. 

If a friend asks you to hold on to their drugs while they go on a vacation, you should say no. If a co-worker asks you to cover for them while they steal money from the cash register, you should refuse to provide such help. Risks in such situations are not worth taking. You could end up spending the rest of your life in jail, or, in certain cases even get punished with a death sentence for a crime that you did not actually commit. The consequences of such a conviction can be fatal. On getting charged with being a party to a crime or when your loved one gets charged with being a party to a crime, it would be beneficial to contact an Attorney. You can refer to the FAQs below for additional information.

Frequently Asked Questions(FAQs)

What is the difference between a felony, misdemeanor and infraction?

  • Felonies- Felonies are the most serious criminal offenses. Offenses such as manslaughter, rape, tax evasion, robbery, and so on. The punishments for these crimes range from several years in prison to even the death penalty for serious cases.
  • Misdemeanor- Misdemeanors are less severe in nature as compared to felonies. The punishments for misdemeanors are usually fines, community service, and in some cases the cancellation of licenses. Examples of misdemeanors are driving under the influence, assault, trespassing a property, and so on. In the United States specifically, misdemeanors are crimes where the term of imprisonment is usually not more than a year. The president of the United States can be impeached for misdemeanors.
  • Infraction – As compared to the above, an infraction is the least serious offense. It is also sometimes referred to as a petty offense. The punishment usually entails a fine and no imprisonment. Examples of infractions are violations of traffic rules such as failing to wear a seat belt while driving, parking beside a nonworking meter, causing noise and disturbing the peace, and so on.

How is the principal in the first degree different from the principal in the second degree?

A principal in the first degree is a person who is directly committing the crime. He is carrying out the main activity which will constitute the crime. He is not merely an accessory to the crime. For example, if a person X and a person Y go to rob a grocery store and Y is driving the getaway car whereas X is pointing a gun at the owner and asking him to empty out the cash register. Therefore in this case X is the principal in the first degree. The principal in the second degree is also working towards the furtherance of a crime, but his role is more of a supporting role. Therefore in the example mentioned above, Y is the principal in the second degree and he may or may not be charged and convicted of the same offenses as X.

What is an accessory to a crime? Are accessories before the fact and accessories after the fact charged with the same offenses?         

Accessories before the fact are now called accomplices. They help the principal in the first degree by advising, planning, aiding or abetting, or encouraging the principal in the first degree to carry out the crime. The liability and punishment for an accessory before the fact is more severe than an accessory after the fact. An accessory after the fact is given a less severe punishment because he is merely facilitating the crime through indirect participation.

Why is an accessory before the fact usually brought under the category of an accomplice to a crime?     

The category of an accomplice to a crime was established for the purpose of solving some of the legal complications related to the sentencing of a person. Due to the variation in crime, it was getting difficult to efficiently classify the offenses committed by a person as an accessory before the fact, accessory after the fact, and principal in the second degree. The introduction of the category of an accomplice helped to clear up the issues related to the efficient categorization of the offenses.

In certain situations, the members of a conspiracy might be unaware of the identities of the other members. In such a situation, how can the liability for conspiracy arise?       

In this scenario, there is a central figure who knows the various members and has made arrangements in such a way that they don’t know each other. This kind of arrangement becomes beneficial for all the members because they would not be in a position where they could betray the identities of other members if they get caught by the police.

What should a person do if they are charged with being an accessory to a crime?

In a situation of being charged with being an accessory to a crime, a person can take the following steps-

  • The first essential is that the person should be mindful not to make any statement or answer questions without the presence of an attorney 
  • By exercising their right to stay silent, they can do this. In situations where a person panics, they can make the situation worse by trying to explain their actions.
  • On being released from custody, a person must make sure not to confront the person who has been charged with the commission of the offense.
  • All conversations regarding the case should be left to the attorney. They could benefit by working together on the case.
  • Going against the advice of the attorney can prove to be detrimental to a person. The advice of the attorney should be followed in all cases to strengthen his case.

What if a person was a victim of domestic violence and they are charged with accessory to their abuser? 

The defense if a person is charged with accessory after the act, in relation to the person that committed the crime, the person charged with being an accessory to their abuser are as follows:

  • Child abuse and Negligence towards a child
  • Aggravated child abuse and murder of a minor.
  • Aggravated manslaughter of a minor and so on.

For instance, if the police charges a woman with accessory after the fact to help a boyfriend escape prosecution for child abuse, her attorney can show the fact that the boyfriend abused her as a defense. This is similar to a duress defense where the legislature attempts to protect abuse victims from getting convicted for helping their abusers arising out of fear.  

How does the withdrawal of support help someone who has been charged with being an accomplice?

If a person who is acting as an accomplice withdraws his support on time, it may save him from being convicted as an accomplice. If the accomplice withdraws well before the crime has been committed, he may use his withdrawal as a defense to support his case. Of course, it also depends on the amount of help he has provided to the principal in the first degree. Once they withdraw their support they must notify the police and also try to stop the commission of the crime as far as possible. This is how they can avoid being charged in most cases. The conditions differ from one state to another. Withdrawal of support is one of the most common defenses.

What is the difference between accomplice liability and criminal liability?

Criminal liability must first be established to make the defendant liable. The court has to find two things to make a person criminally liable: 

  • Firstly, that the person committed the criminal act in question – conduct 
  •  Secondly, that the person did so with the mindset to commit the act – intent

Accomplice liability, on the other hand, helps the court in finding a person’s criminal liability for the acts committed by a different person. When a person has a role in aiding, assisting, or encouraging a different person in committing a crime, they are said to be an accomplice. The principal is assisted by the accomplice in committing the crime. The accomplice provides assistance in committing the “target crime”. It is essential for the Court to examine the factors of conduct and intent while finding out what is criminal liability and what is accomplice liability.

What are the types of acts that give rise to liability?

Assistance provided to commit a crime is as follows –

  • Physical conduct like providing a weapon, driving a getaway car,  etc.
  • Omission whereby the person has the duty to prevent a crime from taking place and he fails to do so.
  • Psychological influence comprises solicitation, conspiracy, and encouragement.

It is a requisite that the actions of the accomplice contribute to the commission of the crime. In a situation where the accomplice encourages the crime but does not play an active role in it, he does not stand liable. Trivial assistance does not suffice.

The omission to prevent a crime is only applicable when the person has the duty to do an act but he fails to do so. For example: when seeing a patient getting abused by the doctor, it is the duty of the nurse to report the abuse. Otherwise, she may be as responsible as the doctor. The court takes several factors into consideration while determining accomplice liability – the accomplice must have intended for the target crime’s completion. The accomplice would stand liable for committing the target crime. He would also be liable for any “foreseeable crime” that he commits while performing the target crime.

It is also a requisite that the accomplice has an active role in encouraging, assisting, or counseling of the crime. The principal has to be aware of the accomplice’s assistance while committing the crime. Otherwise, no accomplice liability arises.


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