An accessory to murder is someone who helps or assists the actual perpetrator before or after the commission of the murder. Normally, the accessory is not present at the scene of the crime.
In most jurisdictions, the crime is a felony offense (as opposed to a misdemeanor) that can result in years in state prison.
Under state criminal laws, being an “accessory” itself is an offense where a person aids in the commission of a felony.
- An accessory after the fact is a person who harbors, conceals, or aids another after that person has committed a felony.
- An accessory before the fact is a person who aids another before that person commits a felony.
Note that most states say that murder is the offense where a person wrongfully kills another with malice. Most jurisdictions say that “malice or malice aforethought” means a wrongful act done either:
- intentionally, or
- with a conscious disregard for human life.
What is an accessory to murder?
Accessory to murder is when a person aids another in the killing of a human being but is not present at the commission of the murder.
The law defines “accessory” as contributing to or aiding in the commission of a crime.1 The law makes a distinction between an:
- accessory after the fact, and
- accessory before the fact.
An accessory after the fact is a person who helps another person after that party commits a felony. For example, a person commits the offense if they know another person killed someone and drives the getaway car.2
An accessory before the fact is a person who helps another person before that party commits a felony. An example includes someone helping a person pick out a knife knowing that the person is going to use it to commit a crime of domestic violence.3
The crime of accessory before the fact is sometimes referred to as “aiding and abetting” or being an accomplice. When someone acts as an abettor, or abets in a crime, the person to whom they are providing help is known as the principal offender.
Knowledge of the crime
In accessory cases, a person is only guilty of the crime if they have knowledge of the crime. That is, the defendant must have acted while knowing that the person they were helping either:
- was going to commit a crime, or
- did commit a crime.
Penalties for accessory to murder
Most criminal code sections charge accessory as a felony offense. An accessory after the fact can face up to fifteen years in state prison. If an accessory after the fact, the person will not be charged with the underlying offense.
Accessories before the fact can face the same criminal charges as the principal. This could lead to harsher penalties and punishments.
Are there defenses to the crime?
Four common defenses to accessory to murder charges include the defendant showing that:
- they did not know that the principal committed a crime, or was going to commit a crime,
- they were falsely accused or the victim of mistaken identity,
- the principal did not commit murder,4 and/or
- they acted under duress.
“Duress” is a legal defense in which an accused basically says: “They made me do it.” The defense applies to the limited situation in which a person commits a crime, because somebody threatened to kill them if the crime was not committed.
Hiding a murderer from the police is acting as an accessory.
How do states define murder?
The laws of most states say that murder is the killing of a human being that is done with malice or malice aforethought.
Most jurisdictions say there are two different degrees of murder. These include:
- first-degree murder, and
- second-degree murder.
First-degree murder generally occurs when someone kills another with deliberation, premeditation, or while lying in wait.
Second-degree murder is when a person kills another via some intentional act but does not contemplate or think about the murderous act before committing it.
Murder is a felony offense that can result in life imprisonment in state prison.
What is the law in California?
Accessory to murder in California is a criminal offense much like that described above.
Accessory before the fact
Note, though, that the state usually charges accessory before the fact as “aiding and abetting” under California Penal Code 31 PC.
PC 31 makes it a crime if a person encourages, facilitates, incites, or aids in the commission of a criminal act.5 An aider and abettor generally faces the same criminal charges and penalties under California’s Penal Code as the direct perpetrator.6
Accessory after the fact
Penal Code 32 PC is the California statute making it a crime to be an accessory after the fact. This is a person who harbors, conceals, or aids someone else with knowledge that this other person committed a felony.7
A violation of Penal Code 32 is a wobbler offense. This means a prosecutor can charge it as either a misdemeanor or a felony.
If a defendant is convicted of misdemeanor accessory after the fact, the crime is punishable by:
- imprisonment in county jail for up to one year, and/or
- a maximum fine of $5,000.8
If a defendant is convicted of felony accessory after the fact, the offense is punishable by:
- custody in jail or state prison for up to three years, and/or
- a maximum fine of $5,000.9
Accessory versus conspirator
For there to be a criminal conspiracy in California, two or more people must agree to commit a crime. Also, one of them must take an action towards committing the crime. They can be charged with conspiracy even if their planned crime never occurs.
In contrast, an accessory can be criminally liable even if there is no prior agreement with anyone else to commit a crime. A person can act as an accessory without the principal even knowing that they are helping.10
Additional reading
For more in-depth information about accessories, refer to these scholarly articles:
- A Survey of Accessory After the Fact Exemptions – Dickinson Law Review.
- Excluding an Accessory after the Fact from a Felony-Firearm Conviction – Wayne Law Review.
- Parties to a Crime – University of Pennsylvania Law Review article explaining which actors in an offense have what criminal liability.
- Family Member Exemption for Accessory after the Fact – Journal of Family Law.
- Testimony of Accessory after the Fact Need Not Be Corroborated – St. Mary’s Law Review.
Legal References:
- Black’s Law, Sixth Edition – “Accessory.” See, for example, People v. Plengsangtip () .
- See same. See also Robinson v. State, 249 A.2d 504 (1969).
- Black’s Law, Sixth Edition – “Accessory.” See also Com v. Leach, 317 A.2d 293 (1973). See, for example, McGhee v. Commonwealth (1980) .
- In some jurisdictions, this defense will only work in accessory after-the-fact cases. An accessory before the fact can still be charged in a particular case if the principal did not commit murder or was acquitted of such.
- California Penal Code 31 PC. See, for example, People v. Wilson (Cal. App. 4th Dist., 2020), 270 Cal. Rptr. 3d 200.
- See same.
- California Penal Code 32 PC. See, for example, People v. Partee (2020), 257 Cal. Rptr. 3d 617.
- California Penal Code 33 PC. See, for example, People v. McKinzie (2012), 54 Cal. 4th 1302.
- See same.
- PC 182.
