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

The information in this blog is provided for general informational purposes only and should not be used as a substitute for legal counsel on any subject matter.

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