In criminal law, vicarious liability occurs when one person is held liable for the criminal actions of someone else. It assigns liability to an individual who did not directly cause the harm in question. Criminal law tends to stay away from vicarious liability due to the notion that a person is liable for their actions and not the actions of others. There are exceptions, of course, as vicarious liability is used in limited circumstances in some criminal cases. More commonly, vicarious liability is employed in civil cases, namely, employment law.

Three Theories of Vicarious Liability

There are three theories of vicarious liability in criminal law, and they are as follows:

1) Criminal Conspiracy: A member of a conspiracy can be held liable for the crimes committed by another member if the crime was part of the original objective and it was foreseeable for the crime to occur. For example, a group of bank robbers were committed and intended to rob a bank, but one member thought that’s all they were going to do. Yet during the process of robbing the bank, they also had to steal a car to get away. While the one member may not have approved or wished to steal a car, the fact that a car was stolen is part of robbing the bank (must flee the scene) and foreseeable.

The following elements required to establish conspiracy include:

  • Two or more people have agreed to commit a crime;
  • All parties involved must have had intent to enter the agreement;
  • All parties must have intended to follow-through on the agreed-upon crime; and
  • There must be an overt act in furtherance of the agreement (such as buying a weapon, or holding a meeting to plan the crime).

2) Accomplice Liability: An accomplice is a person who helps another person (the principal) commit a crime by aiding, abetting, counseling, or by encouragement to follow through. For example, a security guard at the bank gives the robbers the map of the bank and tells them how to get in. While the security guard might not be there at the robbery, and didn’t help the robbers during the robbery, it doesn’t mean he is not liable for the crime.

The following elements may be present for accomplice liability:

  • The accomplice aids and abets with the intent that the principal would commit the crime; 
  • The accomplice typically aids and abets prior to the crime or as it is happening;
  • The person is an accessory after the fact if he provided help after the commission of the crime, and is not vicariously liable; and
  • The crime of being an accessory after the fact is usually directly liable, not vicariously, for another crime such as the obstruction of justice.

3) Vicarious Liability for Felony Murder: If a victim is killed during the commission of a felony, then the person who killed the victim is directly liable for murder. A co-felon will be held vicariously liable for murder even though they didn’t commit the murder, provided that the victim’s death was reasonably foreseeable.

For example, during the bank robbery one of the tellers tries to get help. One of the robbers shoots and kills the teller, even though it wasn’t part of the plan. However, the robbers had loaded firearms and used them to complete the robbery. It is reasonably foreseeable that using a firearm during the robbery could have resulted in the death of an innocent person. Therefore all of the robbers will be held liable for the murder committed by just one of the robbers.

The following issues are considered for a co-felon’s vicarious liability in felony murder:

  • Common felonies where vicarious liability is triggered are: robbery, burglary, rape, arson, kidnapping, and other inherently dangerous felonies;
  • The commission of the felony, including an attempt to commit the felony in which death results will trigger liability for murder; and
  • If death occurs after the felony was completed, vicarious liability for murder may not exist.

Seeking Help from an Attorney?

If you believe you may be vicariously liable for any crime that you did not personally commit, or if you are facing criminal charges, speak to a criminal lawyer immediately. Vicarious liability is a serious charge and the penalties can be severe. An experienced lawyer will advise you of your rights, help you determine your next course of action, and will also represent your best interests in court.