Due Process Limits on Accomplice Liability

Abstract

American accomplice liability law is a disgrace, and this paper examines a rarely discussed aspect of that law: the operation of the "natural and probable consequences" doctrine. In this short piece, I point out how many such laws violate Due Process in two respects. First, they violate Winship in dispensing with any requirements that the prosecution prove the elements of the offense as against the accomplice. Second, compounding this violation, these laws fail Due Process on vagueness grounds, as they contain no elements that can be proved, thus providing an open-ended liability for these secondary actors.

Keywords: natural and probable consequences, due process, common design