What is Aiding and Abetting?

What is Aiding and Abetting?

About a half-dozen co-conspirators assisted John Wilkes Booth when he assassinated President Abraham Lincoln in April 1865.1 Many probably didn’t know all the details of Booth’s plans, but they were still punished harshly for aiding and abetting.

Mary Surratt ran the boarding house where Booth and his gang met. Although she wasn’t directly involved in their activities, she became the first woman to be hanged by the United States government in July 1865. Dr. Samuel Mudd set the leg Booth broke during his escape from Ford’s Theater. Once again, he probably knew little or nothing about Booth or his crime. Nevertheless, a jury sentenced Dr. Mudd to life in prison. President Andrew Johnson pardoned the doctor in 1869, but to this day, his name is still “mud(d).”

The takeaway should be obvious. Criminal cases are not limited to “bad” people. Almost anyone could get caught up in an investigation simply because they associate with people who seem friendly but have committed illegal acts. As outlined below, aiding and abetting cases in New York has many moving parts. As a result, a Rochester criminal defense lawyer can often successfully resolve a&a charges.

Elements of the Offense

Surratt, and probably Mudd, may have been guilty of aiding and abetting under New York Penal Code Article 20.2 This provision applies if a person:

  • Solicits, commands, importunes, requests, or intentionally aids another person, and
  • The defendant has the required “mental culpability” to commit the underlying offense.

Booth and his ilk met at Surrat’s boarding house multiple times over several months. Furthermore, Booth and his co-conspirators were up to no good. There’s enough circumstantial evidence to prove Surrat intentionally aided the gang.

Likewise, there may have been enough circumstantial evidence to convict Mudd. Most likely, Booth lied to Mudd about his broken leg. If Mudd knew about Lincoln’s assassination, he probably should have put two and two together, especially if Booth was a lousy liar.

In most states, aiding and abetting is a lesser offense. For example, since Booth was charged with capital murder, prosecutors could charge Mudd and Surratt with second-degree murder.

Possible Defenses

Generally, prosecutors use conduct to prove intent. But this technique is unavailable in aiding and abetting cases. So, prosecutors must generally rely on weaker circumstantial evidence, like proximity to the crime, statements the defendant made, and the prior relationship between the aiding and abetting defendant and the primary actor. All these things are the seed of a possible defense.

The evidence is different in an aiding and abetting case, but the burden of proof is the same. It’s challenging to meet this burden of proof beyond a reasonable doubt with circumstantial evidence.

DUIs are a good example. The conviction rate is much higher in direct evidence test cases than in circumstantial evidence field sobriety test cases.3 Defendants could do poorly on these tests because they are intoxicated, disabled, tired, or for numerous other reasons.

Statements defendants make are generally inadmissible under the Fifth Amendment. Officers must read suspects’ rights before they begin custodial interrogation. This phrase means asking any questions when the defendant doesn’t reasonably feel free to leave.

The Fifth Amendment also applies to indirect evidence. For example, if Sam tells officers about incriminating text messages that prove Sam was part of a criminal conspiracy, these text messages are inadmissible unless officers read Sam his rights first.

Speaking of inadmissible evidence, statements about prior associations between two people may be inadmissible under New York’s rules of evidence. That’s especially true if the two people associated with each other before the crime. Such evidence is arguably irrelevant.

On a related note, many defendants roll over on their co-conspirators, hoping for more lenient treatment. This testimony may not be inadmissible, but it often is unreliable. Most people say almost anything for love, usually a reduced sentence or money.

Resolving Aiding and Abetting Charges

Public shock and grief over Lincoln’s assassination most likely prompted jurors to sentence Surratt and Mudd so harshly. Typically, this dynamic is absent, which is why many favorable resolutions are often available.

Deferred disposition is a good example. The defendant pleads guilty and serves a period of probation. If the defendant completes probation, the judge dismisses the case.

Many prosecutors are willing to offer deferred disposition in these situations because, as far as they are concerned, aiding and abetting is a lesser-included offense. Additionally, these prosecutions usually have proof problems, as outlined above, so the state is motivated to make a deal.

Deferred disposition has some significant pros and cons. No conviction record is a huge pro. However, if the defendant violates probation for any reason, the judge could sentence the defendant to the maximum under the law. Therefore, defendants shouldn’t accept these plea bargains without talking seriously with their attorneys, especially if the charge is a felony.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester, NY, criminal attorney. Virtual, home and after-hours visits are available.



[1] https://www.pbs.org/wgbh/americanexperience/features/assassination-co-conspirators/

[2] https://www.nysenate.gov/legislation/laws/PEN/20.00

[3] https://one.nhtsa.gov/people/injury/research/dwiconviction/dwiconvictions.htm

Types of Defenses in Criminal Law

Types of Defenses in Criminal Law

Statistically, there’s no effective defense in any criminal law case. Prosecutors have about a 95 percent conviction rate.[1] However, this number is deceptive. Nearly all of these convictions are plea bargains. If a criminal case goes to trial, the conviction rate is much lower, perhaps as low as 50 percent. In both pleas and trials, at least one procedural, substantive, and or/affirmative defense is usually available.

During plea negotiations, a Rochester criminal defense attorney leverages these defenses and obtains more favorable plea bargain terms. These favorable terms usually include reduced charges and/or a reduced sentence. If prosecutors charge Tom with aggravated assault (a felony) and he pleads guilty to simple assault (a misdemeanor), that counts as a conviction. However, in practical terms, that plea bargain is a clear win for Tom. Attorneys also use these defenses during trials. If just one juror buys the defense, the defendant is not guilty as a matter of law.


Over the last several years, the violent crime rate has increased in almost every state. Many lawmakers, especially those who love to pass the buck, have pressured law enforcement agencies to “do something” about this increase. To take this pressure off, many field officers take illegal shortcuts, and many of their supervisors look the other way.

Technicalities, or procedural defenses, are very effective. Once officers make a mistake, they cannot undo it. Furthermore, a technicality allows a Rochester criminal defense lawyer to obtain a favorable result, either at trial or during plea negotiations, without addressing the case’s merits.

The Fourth Amendment protects people from unreasonable searches and seizures. Unless officers had a warrant based on probable cause or a narrow search warrant exception applied, the search was unreasonable, and the evidence is inadmissible in court.

Fourth Amendment issues are often huge in possession cases, like drug and weapons cases. The prosecution crumbles if prosecutors cannot produce the illegal item at trial. Fourth Amendment issues also apply in other cases, most notably DUIs.

The Fifth Amendment gives people the right to remain silent. Most people have watched enough cops-and-robbers TV shows to know this. However, most people don’t know how early this right applies and how broad it is.

Legally, before officers detain and question suspects, they must inform them of their Fifth Amendment rights. “Detention” means the suspect doesn’t feel free to leave. In other words, detention begins long before officers handcuff defendants. Moreover, the Fifth Amendment not only covers the right to not say anything. It gives suspects the right not to do anything. They don’t have to pose for pictures or appear in lineups.


In the aforementioned aggressive enforcement environment, many officers avoid procedural errors. However, they jump the gun and arrest suspects before they have enough evidence to convict them. As a result, a lack of evidence may be the most effective defense in criminal cases.

A lack of evidence is based on the presumption of innocence as well as the burden of proof in criminal cases, which is beyond any reasonable doubt.

At trial, most jurors assume that the defendants did something wrong. So, a Rochester criminal defense attorney must drive home the presumption of innocence. Usually, lawyers stress that when the trial begins, the defendant is falsely accused, as far as the law is concerned. Additionally, after the prosecutor makes an opening argument, no matter how convincing it is, the defendant is still falsely accused. The state hasn’t introduced any evidence at that point.

The presumption of innocence is so powerful that even if a Rochester criminal defense attorney says nothing during a trial, the jury could still acquit the defendant. Therefore, many criminal defense lawyers act somewhat uninterested during trial. This attitude often convinces jurors that the state doesn’t have much evidence.

Beyond a reasonable doubt is a very unclear concept in criminal law. New York courts use the unhelpful definition: “It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”[2] That’s a lot of Legalese which, quite frankly, even we don’t understand.

Sometimes, an example works better. We mentioned DUIs above. Assume Becky is charged with causing a collision while DUI. The “driving” element in a DUI collision is often hard to prove in these cases. If Becky was in the car alone, a space alien could have driven the car and disappeared before the cops arrived, but that’s not a reasonable scenario.

If Becky was in the car with Eddie, jurors could reasonably believe that Eddie was the driver instead of Becky. Indeed, according to the presumption of innocence, that’s the conclusion they must reach unless prosecutors convince them otherwise.

A quick word about circumstantial evidence. This evidence could be enough to convict a defendant. If no one saw Sam break into Mike’s house, yet Sam threatened Mike on social media, and officers recovered Sam’s hair at the crime scene, Sam could be guilty of burglary. That’s assuming the evidence was admissible under the procedural defense rules, and the hair was scientifically reliable. Scientific reliability is a can of worms that we’ll address in another post.


Usually, an affirmative defense is the last line of defense. Defendants must admit that they committed the crime and argue their conduct was justified under the law. Self-defense in an assault or other similar cases and consent in a sexual battery or other similar cases are the two most common examples.

Proportionality is the key element in a self-defense argument. Usually, the response must be proportionate to the threat. However, that’s not always the case. If The Rock threatened me, I might reasonably believe I need a gun to stop him, even if The Rock was unarmed.

Usually, consent is a current, voluntary agreement to engage in a certain sexual act. This defense is quite complicated because many of these cases are “he said, she said.” The burden of proof comes into play as well. A “he said, she said” case might be enough to prove liability in civil court, where the burden of proof is lower. But it’s not enough to prove guilt in a criminal case, where the burden of proof is higher.

There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. Virtual, home, and jail visits are available.



[1] https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf

[2] https://www.nycourts.gov/judges/cji/1-General/CJI2d.Presumption.Burden.Reasonable_Doubt.pdf