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evidence_law:evidence-of-accomplice

Evidence of an Accomplice

Accomplice: An accomplice is a person who actively participates in the commission of a crime. To be an accomplice, it is sufficient to aid and abet, advise, or encourage the commission of the crime.

A person does not become an accomplice merely by witnessing an act and taking no steps to prevent.1) An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state.accomplice Further, the accomplice witness's participation must involve an affirmative act that promotes the commission of the offence with which the defendant is charged. There must be sufficient evidence to connect the alleged accomplice to the criminal offense as a blameworthy participant.2)

Active and purposeful engagement in criminal activity

An accomplice is one who actively and purposefully engages in criminal activity and is criminally responsible for the criminal actions of his/her co-conspirators, which are committed in furtherance of the criminal endeavor.

Accordingly, two prongs must be satisfied for a person to be labeled an accomplice:

  1. First, there must be evidence that the person intended to aid or promote the underlying offense.
  2. Second, there must be evidence that the person actively participated in the crime by soliciting, aiding, or agreeing to aid the principal.

Further, a person cannot be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene. There must be some additional evidence that the person intended to aid in the commission of the underlying crime, and then aided or attempted to aid.3)

An informer or agent is not accomplice

The general rule, however, is that one who participates in a crime for the purpose of gathering evidence against another participant is not an accomplice. An informer or agent in the employ of the police who makes a narcotics purchase from a suspected seller is not an accomplice. A person who participates in criminal activity only as an agent of law enforcement lacks the requisite criminal intent to have aided or abetted the commission of the crime.

A person’s status as an accomplice can be decided as a matter of law, if it appears without substantial conflict in the testimony that the person participated in, or encouraged, the crime. But where there is uncertainty whether a witness is an accomplice, the issue should be submitted to the jury to be determined as a question of fact.4)

Accessories

Like accomplices, accessories intentionally do something to help the principal commit a crime. While laws vary by jurisdiction, an accessory typically helps either before or after the crime and is not physically present at the crime scene.

Conspirators

Conspirators are two or more people who agree to commit a crime. Conspiracy is related to aiding and abetting, but it is the agreement that distinguishes the two offences and makes each conspirator a principal offender. In order to convict someone of conspiracy, prosecutors must prove that the person entered into an agreement with at least one more person to commit a crime.

Approvers

An approver is an accomplice in crime who accuses others of the same offence, and is admitted as a witness at the discretion of the court to give evidence against his companions in guilt.

An approver is a most unworthily friend, if at all and, he having bargained for his immunity must prove his worthiness for credibility in the court. The approver’s evidence must show that he is a reliable witness. This test is common to all the witnesses. If this test is fulfilled, his evidence should be corroborated in material particulars to connect each of the accused persons with the commission of the offence. If the testimony of the approver is itself uninspiring and unacceptable justifying its outright rejection, it would be futile and unnecessary to look for corroborative evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused persons with the commission of the crime charged.5)

Testimony of accomplice

Conviction not illegal, but corroboration desirable.

The conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.

Though under section 133 of the Evidence Act, a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to section 114 lays down that a court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In the case of such a person on his own showing that he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on anther, it is necessary that what he has deposed must be corroborated in material particulars. In contrasting this with the statement of a person making a confession who stands on a better footing, one need only find out when there is a retraction whether the earlier statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object that corroboration is sought for.

Although section 114 illustration (b) provides that the court ‘may presume’ that the evidence of an accomplice is unworthy of credit unless corroborated, ‘may’ is not must and no decision of court can make it must. The court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the court's view as to the credibility of evidence tendered by an accomplice.

Corroboration need not be direct

The corroboration need not be direct evidence that the accused committed the crime; it is sufficient, if there is merely a circumstantial evidence of his connection with a crime.6)

Purpose of corroboration

The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible, but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible.7)

There is nothing technical in the idea of corroboration. When in the ordinary affairs of life, one is doubtful, whether to believe a particular statement, one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.8)

Nature of corroboration required

Generally, one who is found to be an accomplice is deemed liable for the crimes committed by the primary party. Some courts even consider accomplices liable for other crimes that are the “natural and probable consequences” of the crime, which the accomplice aided or abetted. Law is not that the evidence of an accomplice deserves outright rejection, if there is no corroboration. What is required is to adopt great care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration of accomplice’s evidence, it is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true.9)

(1) First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction.

As Lord Readings says— “Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony.”

All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.

(2) Secondly, the independent evidence must not only make it safe to believe that the crime was committed, but it must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identify must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there would be independent evidence, which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that “a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. It would not at all tend to show that the party accused participated in it.

(3) Thirdly, the corroboration must come from independent sources. Thus, ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. Nevertheless, the circumstances may be such as to make it safe to dispense with the necessity of corroboration. In those special circumstances, a conviction so based would not be illegal.

(4) Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient, if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, many crimes, which are usually committed between accomplices in secret, such as incest, offences with females (or unnatural offences) could never be brought to justice.10)

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
R vs Morris, [1979] 2 SCR 1041
2)
Korell vs State, 253 SW 3d 405 (2008)
3)
Commonwealth of Pennsylvania vs Rega, 933 A 2d 997 (2007)
4)
State vs Chacon, 186 P 3d 670 (2008)
5)
State of Orissa vs Bishnu Charan Muduli, 1985 Cr LJ 1573
6)
Rex vs Baskerville, 1916 (2) KB 658
7)
DPP vs Hester, (1972) 3 AER 1056
8)
DPP vs Kilbourne, (1973) 1 AER 440
9)
State of Tamil Nadu vs Suresh, AIR 1998 SC 1044
10)
See: Sitaram Sao vs State of Jharkhand, AIR 2008 SC 391; 2008 (56) BLJR 242; 2007 (13) SCALE 51


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