Imagine this scenario, your best friend come to you and tells you he or she is thinking about committing a crime. They could be thinking about murdering an ex-boyfriend due to infidelity or more realistically thinking about stealing money from their company because of the bad economy. What should you do? What are the legal ramifications of your actions? Will you be liable if you tell them to do what you know is wrong? How liable would you be? What if you say or do nothing? Should you notify the police and “sell out” your friend?
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In looking at this sometimes complex problem, that you may run into during your lifetime, I must first say that you should not tell your friend to go through with the crime. Do the right thing and try and talk them out of it. However, not all situations are black and white and not all crimes are as obvious as the ones premised in the above hypothetical and it can be hard to know what the right thing to do is. Massachusetts criminal law answers all of the above questions under the law of accessory before the fact.
If you are found to be an accessory before the fact you are just as criminally liable as the person who committed the crime. However, in order to be an accessory before the fact the prosecution must prove, beyond a reasonable doubt, that you aided the person who actually committed the felony through “counseling, hiring, or procuring.” The prosecution must also show that you had intent to aid in the felony. Therefore, if you think your friend is kidding and you kid back that he should go steal money from a casino like they did in “Ocean’s Eleven”, chances are you are not an accessory. However, if you think that what they are about to do is a good idea and you tell them to go through with the criminal act, you might be liable.
The law of accessory before the fact does not extend to non-action. You DO NOT have to tell the authorities that your best friend is about to steal from a company under the law. Morally you may feel that telling on your friend may be the right thing to do, but you don’t have to. In order to be an accessory before the fact you must actually take active steps in aiding the commission of the felony. This can be done through encouragement or actual physical help. Even if you know the crime will be committed by your friend, doing nothing will not make you liable for their actions. You don’t even have to try and talk them out of committing the crime. You are not liable unless you tell them they should commit the crime or actively help them in some way.
In the end, this is a complicated situation for anyone to handle. I would urge you to do the right thing and at least try and talk them out of doing something illegal. Breaking the law should never be the answer. However, in grey areas you should know your rights and what you are getting yourself into if you help your friend do something potentially illegal during desperate times. Finally, it is hardly ever illegal to stay out of the situation, letting your friend make their own mistakes. Sometimes that may be the best route to take, saving yourself from liability and saving your friendship as well.