Accomplice-Witness Rule

Criminal law disfavors the testimony of an accomplice.  The policy behind this is clear - factfinders should be leary of trusting those who have a substantial stake in the litigation.  The 2nd District Court of Appeals (Fort Worth) recently provided a good synopsis of the Accomplice Witness Rule, which I felt was worth sharing.  The following execerpt is taken from Clark v. State (June 17, 2010).

The accomplice-witness rule is a statutorily imposed sufficiency review andis not derived from federal or state constitutional principles that define the legal andfactual sufficiency standards.  An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense.  Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of anaccomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidencethat tends to connect the accused with the commission of the crime.”  The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself.  Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Rather, the evidence must simply link the accused insome way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to theoffense.”  Additionally, “[p]roof that the accused was at or near the scene of the crime at orabout the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”

I omitted the citations, so you should click on the link above and go to page 15 of the opinion if you wants the various cites for the law above.

Can an Accomplice be Prosecuted for "Aiding & Abetting" if the Principal is Acquitted?

YES. In Texas, "collateral estoppel" does not bar an accomplice's trial. Simply put, "collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit arising from the same event or condition. In the criminal arena, collateral estoppel is embodied within the double-jeopardy clause of the 5th Amendment and only concerns the relitigation of specific factual determinations between the same parties.

When multiple actors (a principal and his accomplices) are tried in separate trials for the same offense(s), double jeopardy and collateral estoppel are not implicated. This is primarily because the parties to each case are different. While it seems illogical that the law allows an accomplice to stand trial after a jury has acquitted the principal actor, it can (and does) happen. I mean, how can someone be prosecuted for aiding and abetting a person who is found "not guilty" of the ultimate crime? A silly question is seems. Here's what the 8th District Court of Appeals (El Paso) recently put together on the subject:

Does Collateral Estoppel Bar Accomplice's Trial?

Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the controlling case on whether an accomplice may be tried for the same offense after the principal was acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins of aiding and abetting, and found that there was "a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." Id. at 19. The Court further noted that collateral estoppel would not bar the accomplice's trial because through lenity, compromise, or mistake the jury might have reached an irrational result in the prior trial, which was not subject to review at the government's instigation. Id. at 21-23. Although "symmetry of results may be intellectually satisfying, it is not required;" thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25.

The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually innocent of capital murder when a different jury found the principal guilty of only felony murder. Id. at 551-52. In rejecting the argument, the Court noted that it "is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices," and that the acquittal of the principal does not prevent conviction of his accomplice, regardless of whether the acquittal of the principal occurs before or after the accomplice's trial. Id. at 553-54.

See full text of State v. Cotto, (29 Jan 2010) HERE.

Murder Conviction Remanded Because of Accomplice Perjury

The Texas Court of Criminal Appeals has long held that the Due Process Clause of the 14th Amendment is violated where the State knowingly uses perjured testimony to obtain a conviction. In Ex parte Chabot the Court was faced with whether to extend this holding to cases wherein the State unknowingly presents perjured testimony.

Appellant was convicted of murder and sentenced to life. The State predicated its trial theory on the testimony of an accomplice who was present at the time of the murder. Post-conviction DNA testing later revealed that the accomplice lied during trial when he denied any involvement in the sexual abuse of the victim.

On a subsequent application for writ of habeas corpus, the CCA considered: WHETHER DUE PROCESS IS VIOLATED WHEN THE STATE HAS UNKNOWINGLY PRESENTED PERJURED TESTIMONY?

In Ex parte Fierro, 934 S.W.2d 370 (Tex. Cr. App. 1996), the Court held that the knowing use of perjured testimony is a trial error that is subject to a harmless error analysis, wherein the applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment. The Court now extends its application of this harmless error analysis to cases involving unknowing use of perjured testimony as well.

The court considered this question in a slight different setting in Ex parte Carmona, 185 S.W.3d 492 (Tex. Cr. App 2006)(plurality opinion), when a plurality held that community-supervision revocation based solely on perjured testimony, unknown to the State at the time of revocation, violated the applicant's due process rights. So really, this decision is only a small step from prior Court precedent.

In this case, the State acknowledged the critical importance of the accomplice testimony and conceded that the perjured testimony contributed to the verdict. Noting that it is the "ultimate factfinder," the CCA adopted the findings of fact of the lower court (5th District) and held that "the circumstances of the present case merit a finding that the applicant's due-process rights were violated, notwithstanding the absence of the State's knowledge of the perjured testimony at the time of trial." Remanded.