More on Bystanders Who Cheer on a Criminal

In his post below, Eugene asks whether a bystander who cheers on a criminal can be criminally liable as an accomplice. His answer:

Probably yes, on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006).

This having been said, convictions based on solely encouragement-by-cheering, without any more tangible help, are apparently rare. Unless I’m mistaken, this theory was tried as to some bystanders in the infamous New Bedford barroom rape case, but they were acquitted. “

I have a somewhat different take. I don’t know of any cases on this, but my sense has been that the answer is probably “no.” The reason is that an “aider and abbettor” must aid and abet, not merely abet. A bystander who merely cheers on a criminal is not actually aiding the criminal, at least absent unusual circumstances. That is, he is not engaging in an act or omission that assists the crime. So I have tended to think that the bystander has not satisfied the act requirement of accomplice liability and therefore isn’t liable.

It’s true that some courts say that “encouraging” the crime can satisfy the act requirement of accomplice liability. But when I’ve looked for cases that purport apply this, I encountered cases in which the encourager was actually helping the crime. It wasn’t just encouragement in the sense of an innocent bystander saying, “Run, OJ, run!,” but stuff more like co-conspirators giving the bad guy a pep talk to override his doubts and make sure he would go ahead with the crime. So my tentative sense of it is that the encouragement has to actually help the crime occur or the bad guys to escape. Of course, I realize the lines are hazy here, but I tend to think the bystander ordinarily can’t be liable under this standard.