Can You Be Charged For Knowing About A Crime And Not Saying Anything?

If you witness a crime, are you obligated to report it to the police? What if you are aware that a crime is going to be committed, but you do nothing to prevent it from occurring? Can you be criminally charged if you do nothing at all?

Many people are unaware of their legal obligation when it comes to reporting criminal activity. Some don’t want to get involved for fear of becoming a victim themselves. There is always the possibility that you risk harm to yourself or a third party if you divulge information about a crime you suspect has already been committed, or know of before it happens.

Others may feel they have a moral obligation to respond as a Good Samaritan and expose criminals for their wrongdoing. However, there is a big difference between a feeling of ethical responsibility and a legal duty to act.

Generally speaking, most people are under no legal obligation to report a crime, whether they knew about it in advance, witnessed its commission, or found out about it after the fact. However, there are exceptions to this law that you ought to know about.

Let’s take a brief look at some examples of when you can be held liable for having knowledge of a crime…

Aiding And Abetting A Crime (Penal Code Section 31)

In California, you can be charged with the crime that was committed if you aided or abetted in its commission, but did not actually commit the crime yourself. Penal Code section 31 describes the phrase “aiding and abetting” as meaning that you assisted another person to commit a crime. Prosecutors can charge you as an aider and abettor whenever you:

• Know the perpetrator’s illegal plan,
• Intentionally encourage and/or facilitate that plan, and
• Aid, promote, or instigate in the crime’s commission.

You don’t have to be actually present at the scene of the crime to be charged under what is known as “accomplice liability.” If you willfully participated in the planning of a crime prior to its commission, you can be held criminally liable as an “accessory before the fact.”

If you take a passive role during a crime in progress, such as acting as a lookout or disabling a security device, you can be prosecuted as a perpetrator in the second degree (an accomplice).

Finally, if you help to conceal a crime already committed (hiding stolen money or weapons used in the crime’s commission, for example), or give assistance to perpetrators of crime to help them avoid detection, arrest or prosecution, you can be charged as an “accessory after the fact.”

In these situations, you are culpable under the accomplice liability theory because you knew of the illegal plan and willfully did something to cause it to be carried out or concealed. source

Penal Code 31 PC – California Aiding and Abetting Laws

Penal Code § 31 PC is the California statute that addresses aiding and abetting. This is defined as encouraging, facilitating or aiding in the commission of a criminal act. A person who aids and abets a crime faces the same punishment as the one who directly commits the crime.

The language of the statute reads that:

31. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, or persons who are mentally incapacitated, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.

Aiding and abetting (also sometimes called accomplice liability) is not a separate crime. Rather, it’s a legal principle set forth in California’s Penal Code that allows the state to prosecute everyone who is “in on” a crime – even if they don’t perpetuate the crime directly.

Example: Alan, Bill and Charlie plan out a bank robbery. Each plays a different role. Alan draws up a diagram of the teller windows and the safes. He gives it to Bill (after which Alan’s role is done). Charlie drives Bill to the bank and waits out front in the getaway car. Bill actually goes in and robs the bank. Bill comes running out with the loot, jumps in the car, and Charlie drives the two of them off.

Technically speaking, only Bill did the actual “robbing.” But prosecutors could charge all three with bank robbery: Bill as the direct perpetrator, Alan and Charlie as aiders and abettors. In Alan’s case, he’s liable for the robbery even though he wasn’t even present at the crime scene.

You can be convicted of a crime under aiding and abetting theory, PC 31, even if you played a fairly insignificant role int he crime. But there must be some type of involvement before you can be convicted. Mere knowledge about the crime or presence at the scene will not suffice. ^1, 2

And unlike a conspiracy, there needn’t be a prior agreement to commit the offense…you face liability simply for your voluntary involvement.

Defenses

Typical legal defenses put forward by a California defendant charged as an aider and abettor under Penal Code 31 PC include asserting that he:

• did not encourage, aid or facilitate the crime’s commission
• was falsely accused
• withdrew from participation in the criminal activity
• was merely present at the scene, or perhaps even had knowledge about the crime, but had no duty to try to prevent its commission
• only facilitated the crime after its commission (and should face, if anything, the lesser penalties as an “accessory after the fact”).

Penalties for PC 31 Aiding and Abetting

An aider and abettor generally faces the same criminal charges under California’s Penal Code as the direct perpetrator. If convicted, he typically also faces the same penalties.  In a murder case, for example, an aider and abettor typically faces life in prison just as does the one who commits the actual killing.

1. How does California law define aiding and abetting?

The phrase “aiding and abetting” means helping another person commit a crime.  Prosecutors can charge you as an aider and abettor when you

1. know the perpetrator’s illegal plan,
2. intentionally encourage and/or facilitate that plan, and
3. aid, promote, or instigate the crime.⁴

Despite the fact that it sounds as if you must encourage or promote the criminal activity in advance, that isn’t necessarily the case.  Aiding and abetting may be committed as instantaneously as the crime itself.  If you become aware that a crime is being committed…and at that point, encourage, facilitate or promote its occurrence…the judge or jury can still find you guilty under an accomplice liability theory.⁵

Common examples of aiding and abetting a crime include:

• serving as a lookout,
• keeping an engine running in a car, or
• driving the “get-away” car.⁷

You can also be convicted of Penal Code 31 PC aiding and abetting even if you are legally incapable of committing the actual offense yourself.

Examples:

Aiding and abetting rape

A deputy sheriff ordered a jail inmate to perform oral sex upon another inmate.  He was convicted of violating a California law that specifically prohibits inmates from engaging in oral copulation. In other words, the law makes it a crime for one inmate to engage in oral copulation with another inmate.

The deputy argued that because he was not an inmate, he couldn’t be convicted of this particular crime.  The court disagreed, stating that “Under an aiding and abetting theory, a defendant can properly be convicted of a crime even though by statutory definition the defendant would be incapable of committing the substantive offense by himself”.⁸Aiding and abetting rape

Similarly, a woman cannot physically rape another woman, as rape necessarily involves intercourse.  However, if a woman encourages a man to rape another woman, serves as a lookout for that man, and/or arranges the meeting of the man and woman in a secluded location so that he can rape her, she could be prosecuted for rape under the accomplice liability theory.

What’s the difference between aiding and abetting? While aiding and abetting may sound like the California crime of conspiracy – and although the two are closely related – “aiding and abetting” under PC 31 and conspiracy are actually two different offenses.  The major difference between the two is that for there to be a conspiracy there must be an agreement to participate in criminal activity.⁹ Whereas aiding and abetting does not necessarily require an agreement.

You may also find helpful our article on the difference between aiding and abetting.

1.1. When can the prosecutor charge someone as an accomplice?

With respect to the criminal allegation, the prosecutor doesn’t “charge you” with aiding and abetting. Rather, under the California Penal Code, the prosecutor charges you with the underlying crime and presents the case on the theory that you acted as an aider and abettor.¹⁰

In determining whether you acted as an accomplice, among the factors to be considered are:

• “presence at the scene of the crime,
• companionship, and
• conduct before or after the offense”.¹¹

Note that these are just some of the factors that help determine whether you should be charged as an accomplice. But they are not conclusive.

1.2. Presence at the crime scene is not necessarily required for aiding and abetting liability

There is no requirement that you be present at the crime scene in order to be convicted under an accomplice liability/aiding and abetting theory.¹² Neither must you physically or logistically assist in the commission of the crime. Instigating, encouraging or promoting the crime is sufficient.¹³ The test under PC 31 is whether you “in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.”¹⁴

Example: Defendant was convicted of insurance fraud for filing a false personal injury claim.  The co-defendant, the defendant’s girlfriend, was the one who actually forged the necessary signatures and filed the claims.  The defendant knew the fraudulent claims had been filed and blatantly lied to the insurance investigator, saying he had received medical treatment (which he hadn’t) and that he had to take time off work (which he didn’t).  The defendant argued that because he didn’t actually assist in filing the fraudulent paperwork, there was no accomplice liability.

The court disagreed.  It held that because defendant knew about the claims that were fraudulently filed on his behalf – and therefore had knowledge about the perpetrator’s plan and encouraged its commission by lying, thus intending to defraud the insurance company – he was properly convicted on an aiding and abetting theory. This was the case despite the fact that he did not physically participate in the crime.¹⁵

1.3. Knowledge alone isn’t sufficient to be guilty of aiding and abetting

Simply knowing that the crime is about to be (or is being) committed and failing to report it or prevent it generally isn’t enough in and of itself to sustain a conviction for aiding and abetting.¹⁶ However, if you have a legal duty to take every step reasonably possible to prevent the crime…and fail to do so…you could be convicted as an aider and abettor.

So if you have a legal duty to try to prevent a crime – but do not reasonably attempt to do so – you could face accomplice liability under Penal Code 31 PC.

Example: Defendant was convicted of committing lewd acts on a minor as an aider and abettor.  The prosecutor presented evidence that the defendant stood by and watched her boyfriend molest her 4-year-old daughter on more than one occasion.

The defendant argued that because she didn’t encourage or participate in the lewd acts on the minor, she shouldn’t be liable as an accomplice.  However, the court ruled that the defendant/mother’s presence, in itself, assisted the boyfriend, since her presence not only encouraged the boyfriend to continue molesting her daughter but also encouraged her daughter to comply rather than resist.

Moreover, the court held that because the defendant had a legal duty to act (to protect her child)…yet failed to do so…she was properly convicted under an aiding and abetting theory.¹⁸

2.4. You had no duty to act

It bears repeating that even if you know that a crime is going to be committed…but do nothing to prevent its occurrence…you are not guilty of being an aider and abettor under Penal Code 31 unless you have a legal duty to act.

And because legal duties are so few and far between — since they must be specifically conferred upon you by a law — they will not come into play very often.

As a result, mere knowledge of the underlying crime will not typically be enough to convict you as an aider and abettor.²¹

2.5. You only facilitated the crime after its commission

If you do help facilitate the crime…but only after it is over…you are not an aider and abettor.  You may, however, be an accessory after the fact. (In contrast, aiding and abetting is sometimes called being an accessory before the fact.) Accessories after the fact are not treated in the same manner as accomplices under PC 31, but are instead treated as “obstructers of justice”.²²

Consequently, if you are convicted of being an accessory after the fact, you will most likely face a much lesser penalty than you would as an accomplice to the crime.  An aider and abettor to carjacking, for example, faces up to 9 years in prison (just as does the actual perpetrator). Whereas the maximum penalty for being an accomplice after the fact is three years in the California state prison.²³

3. How is aiding and abetting a crime punished?

Each individual convicted of aiding and abetting under the California Penal Code will be regarded as a “principal” to the crime and is subject to the same penalties and consequences as if he/she personally committed the offense.²⁴

3.1. Accomplice liability for murder

As the Supreme Court of California recognized, in some situations, an aider and abettor may be guilty of a greater homicide-related offense than the actual perpetrator, since defenses or extenuating circumstances may exist that are personal to the actual perpetrator and do not apply to the aider and abettor.²⁶

Example:  Two defendants fire shots in a drive-by shooting. Only one defendant fires the shot that actually kills the victim.  He is labeled the perpetrator, and the other defendant …who was riding in the passenger seat…is labeled the “aider and abettor”.

If, for example, the perpetrator proves that he only fired that shot in
self-defense, his charge would be reduced to
voluntary manslaughter or possibly even dismissed.  However, the second defendant (the aider and abettor)…who still shot at and intended to kill the victim in the drive-by shooting…could still be convicted of murder.²⁷

3.2. Natural and probable consequences

Aiders and abettors under PC 31 are not only equally responsible for the perpetrator’s intended criminal activity. They are also equally responsible for any crimes that are the natural and probable consequences of that original crime.²⁸

“Natural and probable consequences” are foreseeable consequences given all the surrounding circumstances.²⁹ Whether a further crime is a “natural and probable consequence” of the original planned crime is a question that the jury must answer.³⁰

Example: The defendant was in charge of driving the “get-away” car after the perpetrator robbed a jewelry store.  The perpetrator entered the store wearing a ski parka with a hood and sunglasses and carrying a brown paper bag that held a pillow.

While in the store, the perpetrator shot an employee in the face, and then shot and killed the store owner.  The defendant argued that he should not suffer accomplice liability for murder and attempted murder because he did not share in the perpetrator’s intent to kill either victim.

The court disagreed.  It reasoned that “to ‘share’ the perpetrator’s intent does not mean that the aider and abettor is prepared to commit the offense by his own act.  All that is needed is a knowing intent to assist the perpetrator’s commission of the crime.  Once that intent is formed, the liability of an aider and abettor ‘extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages’”.

When the perpetrator entered the store with a gun and a pillow to muffle the sound of possible gunfire, the shootings were indeed a natural and probable consequence of the robbery itself.³¹

Legal References: