It is not uncommon for some crimes to involve the participation of several persons assuming different roles. For example, consider three different people involved in the commission of a bank robbery. One person is involved by breaking into the bank vault and putting valuable contents into the bag. The second person is the armed lookout that is holding hostages until the job is completed. The third person, who never enters the bank, is the getaway driver waiting outside in a vehicle to transport the other two accomplices away. Not everyone involved has a violent role in the crime. Does the getaway driver have the same kind of criminal responsibility as the safecracker and the armed lookout?
According to Michigan law, the answer is yes. MCL 767.39 states “[e]very person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” This means that the safecracker, the armed lookout and the getaway driver can all be charged and convicted equally of the bank robbery no matter how big or small their role was.
Aiding and abetting is NOT a separate criminal offense, but rather a separate theory of how someone may be guilty of an underlying offense. Therefore, the penalty for aiding and abetting another in the commission of a crime is the same as if that person committed the crime himself. For example, the penalty for committing first-degree murder is life in prison without the possibility of parole. Likewise, the penalty for aiding and abetting another person in the commission of first-degree murder will also be life in prison without the possibility of parole.
An individual is guilty of aiding and abetting if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 8.1):
- First, that the alleged crime was actually committed, either by the defendant or someone else. It does not matter whether anyone else has been convicted of the crime.
- Second, that before or during the crime, the defendant did something to assist in the commission of the crime.
- Third, at that time the defendant must have intended the commission of the crime alleged or must have known that the other person intended its commission or that the crime alleged was a natural and probable consequence of the commission of the crime intended.
“To be convicted as an aider and abettor, a defendant must have aided, encouraged, instigated, or assisted the criminal enterprise in some way.” People v Palmer, 392 Mich 370; 220 NW2d 393 (1974). Aiding and abetting “describes all forms of assistance rendered to the perpetrator of a crime and comprehends all words or deeds that might support, encourage, or incite the commission of a crime.” People v Turner, 213 Mich App 558,568; 540 NW2d 728 (1995). “Furthermore, the abettor must have either intended to aid the substantive offense or participated while knowing that the co-participant possessed the requisite intent” to see that a crime was committed. People v Triplett, 105 Mich App 182; 306 NW2d 442 (1981).
It does not matter exactly how much the abettor participated so long as his or her help, advice, or encouragement actually did help, advise, or encourage the crime. For example, “[o]ne need not actually do the breaking to be guilty as an aider and abettor to breaking and entering.” People v Davenport, 112 Mich App 159, 162; 332 NW2d 443 (1982). “A defendant could be guilty as an aider and abettor even if he were merely the ‘lookout’, or the driver of the car used in taking the principal to the building.” Id.
However, “[m]ere presence, even with knowledge that an offense is about to be committed or is being committed, is not enough to make a person an aider or abettor… nor is mere mental approval, sufficient, nor passive acquiescence or consent.” People v Burrel, 253 Mich 321, 323; 235 NW 170 (1931). Even if the accused knew that the alleged crime was planned or was being committed, the mere fact that he or she was present when it was committed is not enough to prove that he or she assisted in committing it. People v Killingsworth, 80 Mich App 45, 263 NW2d 278 (1977). The judge or jury must be able to identify an affirmative act that the accused actually helped, advised or encouraged the criminal offense or participated in some way. It is not enough to merely stand by in silence.
It should be noted that the aiding and abetting statute does NOT include accessories after the fact. An accessory after the fact is “one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment”. People v Luca, 402 Mich 302, 304; 262 NW2d 662 (1978). For example, a murderer might contact a friend after the killing was completed and request assistance in disposing of the body to conceal evidence of the criminal act. Although that friend may have full knowledge of the murderer’s guilty, his participation in the cover-up after the fact might create liability for a separate crime but is distinct from any involvement with the original killing. If a person was an accessory after the fact, he cannot be guilty of aiding and abetting a crime unless there was evidence that he or she was involved “in the commission of an offense.”
Aiding and abetting is a serious charge and the greatest tragedy that can occur is someone being convicted of a crime that was wholly committed by someone else. A skilled criminal defense lawyer in your corner is absolutely necessary to protect your rights and fight for the best outcome in your case. If you or a loved one is accused of any criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
