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What Is An “Accessory After The Fact” In Michigan?

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Imagine that you receive a phone call from a friend that tells you that he just stole money from an ATM and that the police were on his tail. He tells you that he needs to hide the tools he used to break into the machine to access the cash inside. He asks if you would be willing to store the tools in your garage so that law enforcement does not find them on your friend’s property. It is a crime to agree to help your friend? After all, you had nothing to do with the crime itself and no evidence puts you at the scene? As it turns out, accepting the offer to help your friend conceal his tools can make you criminally liable as an “accessory after the fact.”

There is no statute in Michigan’s Complied Laws regarding accessory after the fact but it survives under common law. An accessory after the fact is defined as “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).

An individual is guilty of being an accessory after the fact if the prosecutor can prove ALL of the following beyond a reasonable doubt (Model Criminal Jury Instruction 8.6):

  • First, that someone else committed a crime. The prosecutor does not have to prove that the other person has been charged with or convicted of that crime; he or she just has to prove that said crime was committed. People v. J.D. Williams (On Remand), 117 Mich App 505, 513-514; 324 NW2d 70 (1982). The fact that an accessory hid the gun used by the principal to kill someone, even if the principal is never charged or convicted for murder, could be sufficient evidence of knowledge of the crime to convict the accessory.
  • Second, that the defendant helped the other person in an effort to avoid discovery, arrest, trial, or punishment. Accessory after the fact does not include “mere nondisclosure of knowledge of crime committed by another” but, rather, it requires a substantive act to further the concealment. People v Lefkovitz, 294 Mich 263, 269-270 (1940). Just because your friend called you to inform you of the ATM robbery does not make you an accessory after the fact if you take no further action. Failing to report a crime to police does not make you an accessory after the fact unless you have some other legal duty to take action upon it.
  • Third, that when the defendant gave help, he or she knew the other person had committed a felony. For the purposes of an accessory after the fact charge, it doesn’t matter whether the preceding relating felony is a statutory offense or a common law offense. People v Cunningham, 201 Mich App 720, 723-724; 506 NW2d 624 (1993). For example, you can be charged with accessory after the fact if you assist in concealing another person from obstruction of justice, a common law offense.
  • Fourth, that the defendant intended to help the other person avoid discovery, arrest, trial, or punishment.

The penalty for accessory after the fact is a felony conviction punishable by up to 5 years in prison, or a fine up to $10,000.00, or both. MCL 750.505.

An accessory after the fact is a distinct crime from assisting someone in the commission of a criminal offense. The aiding and abetting statute (MCL 767.39) concerns a principal involved “in the commission of an offense”, but does not include those who assist after the fact of the crime. People v Wilborn, 57 Mich App 277, 282; 225 NW2d 727 (1975). Furthermore, aiding and abetting is not a separate criminal offense but rather a theory on how someone can also be guilty of a crime by either committing all or some of the criminal elements or assisting, aiding, or encouraging someone else in doing so. In contrast, accessory after the fact is a distinct and independent felony, not a theory to convict someone for the underlying offense. People v Bargy, 71 Mich App 609, 616-617; 248 NW2d 636 (1976). For example, if you helped someone hide a murder weapon but had no involvement whatsoever in the actual killing, then the prosecutor may charge you with accessory after the fact (a felony punishable by up to 5 years in prison) but not aiding and abetting first-degree murder (a felony punishable by life in prison without the possibility of parole).

The problem is that the distinction between aiders and abettors and accessories after-the-fact is not always clear. Just because an act was undertaken after the crime was committed does not necessarily limit someone’s liability to that of an accessory after-the-fact if the actor knew of the crime beforehand and intended to further its completion. “It is a question of fact whether a particular act or crime committed was fairly within the intended scope of the common criminal enterprise or was concerned with the commission of the offense.” People v Karst, 118 Mich App 34, 40; 324 NW2d 526 (1982).

It is also possible for a person to act as both an aider and abettor and an accessory after the fact if he or she both aided in the commission of a crime and the subsequent cover-up. However, this would mean that the other principal involved would be guilty of one felony, while the individual who helped before and after would be guilty of the principal felony and a second felony of accessory after the fact. A second person would have to be guilty as a principal, while the individual’s help before or during the crime would also make defendant guilty as a principal. “The result could be that, for instance, the person who actually committed a murder would be treated less harshly than someone who provided the gun and destroyed it after the murder.” People v Hartford, 159 Mich App 295, 301; 406 NW2d 276 (1987). Under these circumstances, the appellate courts direct the prosecutor to view an individual who has helped both before and after a crime is as a principal and should just be charged with the underlying crime. Id.

A charge of accessory after the fact is a serious matter and can result in a felony conviction no matter what level of help was offered to conceal a crime. There is no substitute to having an experienced criminal defense attorney in your corner to fight for your rights and ensure that the prosecutor carries its burden of proof and follows the law. Failure to take this allegation seriously can lead to heavy fines or incarceration.

If you or a loved one is charged with accessory after the fact or any other criminal offense, do not hesitate to contact the skilled lawyers at Kershaw, Vititoe & Jedinak PLC today.

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