Accessories assist the principal (the person who actually commits the crime) before or after the crime is committed.
Accessory Before the Fact
Under G.L. c. 274, §2, being charged as an accessory before the fact is nearly as serious as being charged with the primary felony itself. To persuade a jury to convict a defendant as an accessory before the fact, the Commonwealth must prove beyond a reasonable doubt:
- Someone other than the defendant committed a felony;
- The defendant counseled, hired, or arranged for the principal to commit the felony; and,
- The defendant acted with intent equal to the intent required of the principal to be guilty of the felony.
To prove a defendant is guilty of being an accessory before the fact, the Commonwealth must demonstrate more than that the defendant was aware that the principal intended to commit the felony; it must prove that the defendant encouraged the principal to follow through with the crime, assisted in planning the crime, or stood by while the principal carried out the crime in case his assistance was needed. An individual may be charged as a principal and as an accessory before the fact, though it is no longer common for the Commonwealth to do so. If the individual accused of committing the felony is acquitted, the individual charged with being an accessory must also be acquitted.
If convicted of being an accessory before the fact, a defendant faces the same sentence as if he were charged with the felony the principal committed. There is no family member exception to “before the fact” accessories.
Accessory After the Fact
Under G.L. c. 274, §4, an individual is guilty as an accessory after the fact if he intentionally assists the principal, following the commission of a felony, in his efforts to evade arrest, conviction, and/or punishment. To secure a conviction against an individual charged with being an accessory after the fact, the Commonwealth must prove the following elements beyond a reasonable doubt:
- Someone other than the defendant committed a felony;
- The defendant harbored, concealed, maintained, or assisted the principal (or the accessory before the fact) or provided any other assistance;
- The defendant knew the principal committed a felony; and,
- The defendant assisted the principal in his effort to escape detection, arrest, trial or punishment.
An accessory after the fact need not have been aware that the principal intended to commit the crime. He must, however, be aware that the principal committed a felony and assist the principal following the commission of the crime. That assistance may include destroying or hiding evidence, harboring the principal, helping the principal to escape the jurisdiction, lending the principal money, or misleading the police.
Family Defense
Under G.L. c. 274, §4, husbands, wives, parents, grandparents, children, grandchildren, brothers, or sisters of the principal can invoke the family exception to avoid conviction as an accessory after the fact. Relations can be by blood or through adoption. The wife of Boston bomber Tamerlin Tsarnaev cannot be convicted, under Massachusetts law, as an accessory after the fact because of this exception.
Punishment
A defendant convicted as an accessory after the fact may be punished by imprisonment in the state prison for not more than seven years or in jail for not more than two and one half years or by a fine of not more than one thousand dollars.
Federal Crime of Accessory After the Fact
Under 18 USC §3, an individual is guilty of being an accessory after the fact if he “receives, relives, comforts, or assists a principal, with the intention of obstructing punishment or arrest of the principal.” The maximum punishment is half that of what the principal to the crime faces, be it imprisonment or fine.
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