Is there a legal difference between committing a crime and being liable for a crime?

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by: Ryan • June 26, 2014 • no comments

This is a follow-up to my post earlier today quoting the footnote from State v. Everett. That footnote hinted at a possible defense to solicitation when the court wrote:

It could be argued that soliciting another person to aid and abet another in the commission of an offense does not establish the crime of solicitation, because a person who aids and abets does not personally “engage in specific conduct constituting a crime.” ORS 161.435(1). Such an argument would draw a distinction between engaging in conduct that makes one criminally liable and conduct that actually constitutes a crime."

Before we get to whether there is support for such a distinction, let's first note how such a distinction might play out. A defendant in custody has a cellmate who gets out tomorrow. He asks the cellmate to go and kill a witness. He is, therefore, asking cellmate to commit the crime of aggravated murder. Easy.

But instead, assume defendant's cellmate isn't getting out anytime soon, certainly not before defendant's trial. But he asks cellmate to make a call to defendant's friend, and to give the friend the name and address of the witness to be killed. Obviously, the cellmate is not going to kill the witness himself. He will be -- if he follows through -- aiding and abetting the murder. By aiding and abetting the murder, he's liable for the murder, yes. But if, as an accomplice, he's only liable, but he doesn't actually "engage in specific conduct constituting" the murder (and literally speaking, he doesn't engage in conduct constituting murder), then the defendant didn't ask him to commit the crime of murder. He merely asked him to do something that would make him liable for a murder someone else would commit. And therefore, the defendant is not guilty of "soliciting [cellmate] to commit murder."

So, what supports the idea that being liable for a crime as an accomplice is legally distinct from committing a crime?

In State v. Philips, the court wrote:

As we reiterated in Pipkin, jury concurrence is required for each legislatively defined element necessary to impose criminal liability. See 354 Or at 527. Moreover, as Blake explained, the elements necessary to prove liability as an aider and abettor ordinarily will not be coextensive with the elements necessary to prove liability as a principal. See 348 Or at 101. It follows that jurors usually will have to agree on the elements necessary to prove that a defendant is liable for aiding and abetting another person's commission of a crime.

That makes plain that, contrary to Court of Appeals precedent, the elements of an accomplice are different than those of a principal. That may seem obvious, but courts had previously suggested that accomplice liability was merely a different theory of liability than principal liability. Had that been the case, the holding in Philips would have been no different than that of State v. Pipken, which had come out a month before. In Pipken, the court discussed when the legislature had simply authorized different means of committing one offense, and Philips makes plain that accomplice liability wasn't one of them.

One analogous case might be State v. Becker, which held that a person who commits attempted assault is not guilty under the assault statute but rather the general attempt statute, which is in a completely different chapter. Similarly, one would argue that a person guilty as an accomplice is guilty under the general accomplice statute, but only made liable for the crime he had abetted. But he has not committed the crime he abetted.

And there's a certain logic to that. If I cheer someone on who is committing an assault, I'm not engaged in the conduct constituting the assault, but I am liable for the assault. I don't think anyone would dispute that I'm not literally engaging in the conduct. The question is whether the legislature meant the phrase "engage in the specific conduct"" to be read literally or if it meant to include everyone who was liable for the assault. And this further would raise as applied vagueness issues.

All in all, when the appellate courts address this issue, it will likely be in a conspiracy case, not a solicitation case, because the former are simply more common. At first blush, this argument would not help defeat an attempt charge, although a future project may involve figuring out the interplay of statutes when a person is accused of aiding and abetting an attempt.