Accessory Before the Fact – What Does This Mean?

An accessory before the fact is defined as someone

1. who helps or encourages another person to commit a crime, and
2. who does so before or during the commission of the crime.

Some states charge the offense as aiding and abetting. If you are convicted of being an accessory before the fact, you may face the same criminal penalties as the person who directly commits the crime.

If you are facing a charge of being an accessory before the fact, you can try to challenge it with a legal defense. A few common defenses include showing that you:

• did not offer any help or assistance with a crime,
• were falsely accused,
• started to help in a crime, but then withdrew from this help, and/or
• were merely present at the scene of a crime.

Note that being an accessory after the fact is a separate offense from being an accessory before the fact. You are an accessory after the fact if you help someone after he/she commits an offense (as opposed to helping before or during the crime).

1. What is an “accessory before the fact”?

You are an accessory before the fact if you aid or encourage someone else to commit a crime.¹

Common examples of being an accessory before the fact include:

• serving as a lookout,
• keeping an engine running in a car, and
• supplying the tools necessary for the commission of a criminal offense.

Note that some jurisdictions say that you are only an accessory before the fact if you are not present when the crime is committed.²

Further, while the criminal laws of some states say that an accessory before the fact must offer aid or encouragement prior to the commission of a crime, other states say that you are even guilty of this offense if you offer help at the same time as another person commits a crime.³

Note, too, that some states say you will only face criminal charges for this offense if you help another person in the commission of a felony (as opposed to a misdemeanor).

For example, under Massachusetts law, a person is guilty of being an accessory before the fact if he/she

• aids,
• counsels,
• assists, or
• encourages a principal felon in committing a “felony” offense.⁴

2. Is it the same as “aiding and abetting”?

Some states charge the crime of accessory as “aiding and abetting.” An example is the State of California.

Under California law, a prosecutor must show the following to successfully prove you are guilty of being an aider or abettor:

1. someone committed a criminal offense,
2. you knew that the person intended to commit a crime,
3. before or during the commission of the crime, you intended to aid and abet the person in committing the crime, and
4. your words or conduct did in fact aid and abet the person’s commission of the crime.⁵

The above elements are very similar to the elements of accessory before the fact for those states that recognize this offense.

3. What are the best legal defenses?

Yes. If you are charged with being an accessory before the fact, you can challenge it with a legal defense.

A few common defenses include showing that you:

• did not encourage, aid, or facilitate a crime’s commission,
• were falsely accused,
• withdrew from participation in the criminal activity, or
• were merely present at the scene of the crime (and had no idea that it was going to be committed).

Please keep in mind that while you can raise a legal defense, it will take a skilled criminal defense attorney to raise the best defense.

A criminal defense lawyer will know what type of defense is the best fit for the given facts of a case.

Note that most law firms/law offices provide free consultations. This means you can get your legal questions answered for free.

Further, communications with a criminal defense attorney are protected by the attorney-client relationship. Per this bond, lawyers cannot disclose communications with clients without their consent.

4. What are the penalties?

In most states, if you are an accessory before the fact, you will face the same penalties as the person who carried out the underlying crime that you helped carry out.⁶

For example, consider a state whose robbery laws punish the offense with a maximum prison sentence of 15 years. If you help a person rob someone or someplace, you will also face a maximum sentence of 15 years in state prison.

5. What is an “accessory after the fact”?

“Accessory after the fact” is a crime where you help someone else after he/she commits a crime. Note, here, that the help comes after someone completes an offense as opposed to before or during the offense.⁷

Examples of being an accessory after the fact include:

• providing an alibi for a friend who has been charged with driving under the influence (DUI),
• driving a getaway car after a robbery, and
• helping a criminal suspect or felon escape arrest.

In general, prosecutors can charge this crime as either a misdemeanor or a felony. While state laws vary on the particular penalty for the offense, it is usually less severe than the penalty for being an accessory before the fact.

Additional reading

For more in-depth information, refer to these scholarly articles:

• To Aid, Abet, Counsel, Command, Induce, or Procure the Commission of an Offense: A Critique to Federal Aiding and Abetting Principles – South Carolina Law Review.
• Criminal Law – Accomplice Liability – A Defendant Who Intents to Aid, Abet, Counsel, or Procure the Commission of a Crime, Is Liable for That Crime as well as the Natural and Probably Consequences of that Crime – People v. Robinson  – University of Detroit Mercy Law Review.
• Inchoate Crime, Accessories, and Constructive Malice in Libertarian Law – Libertarian Papers.
• The Identic Turn: The Culpability of Accessories and Perpetrators – Law Context: A Socio-Legal Journal.
• Accessory Liability and Common Unlawful Purposes – Law Quarterly Review article on how principals and accessories share liability.

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