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2470. General History Of Aiding And Abetting

NOTE: The following material is adapted from material originally authored by John B. Stevens, Chief of Criminal Division, Eastern District of Texas, and Robert Lipman, NDDS.

At common law, the subject of principals and accessories was riddled with "intricate" distinctions. Standefer v. United States, 447 U.S. 10, 15, 100 S.Ct. 1999, 2003, 64 L.Ed.2d 689 (1980), quoting 2 J. Stephen, A History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. Id. By contrast, misdemeanor cases "d[id] not admit of accessaries either before or after the fact," instead, all parties to a misdemeanor, whatever their roles, were principals. United States v. Dotterwe ich, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943).

Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. Standefer, 447 U.S. at 15, 100 S.Ct. at 2003. Among them was the rule that an accessory could not be convicted without the prior conviction of the principal offender. Id. Under this rule, the principal's flight, death, or acquittal barred prosecution of the accessory. Id. If the principal were pardoned or his conviction reversed on appeal, the accessory's conviction could not stand. Id., 100 S.Ct. at 2003-04. In every way "an accessory follow[ed], like a shadow, his principal." Id., 100 S.Ct. at 2004, quoting 1 J. Bishop, Criminal Law § 666 (8th ed.1892).

This prosecution bar applied only to the prosecution of accessories in felony cases. Id., 447 U.S. at 16. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. Id. In felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. Id. Not surprisingly, considerable effort was expended in defining the categories -- in determining, for instance, when a person was "constructively present" so as to be a second-degree principal. Id., quoting 4 Blackstone, at 34. In the process, justice all too frequently was defeated.

To overcome these judge-made rules, statutes were enacted in England and in the United States. Id. The enactment of 18 U.S.C. § 2 in 1909, was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point:

Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.

Act of Mar. 4, 1909, § 332, 35 Stat. 1152.The statute abolished the distinction between principals and accessories and made them all principals. Hammer v. United States, 271 U.S. 620, 628, 46 S.Ct. 603, 604, 70 L.Ed. 1118 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. Standefer, 447 U.S. at 19, 100 S.Ct. at 2005. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants. Id.

[updated October 1998] [cited in Criminal Resource Manual 233]

Updated January 17, 2020