Pleading General Crimes and Theories of Liability

Questions frequently arise about the requirements to charge the various types of general crimes like attempt, conspiracy, and accessory. A related question is whether the theory of liability, such as acting in concert or aiding and abetting, must be specifically pled. For defenders new to felony work, it can come as an unwelcome surprise to discover the jury is being instructed on an unexpected theory not identified in the pleading. This post lays out the basics for pleading general crimes and theories of liability of participants in the crime and links to the jury instructions for each. Solicitation must be pled, unless the defendant is charged with accessory before the fact to murder. Solicitation is asking someone else to commit a crime with the intention that the person solicited will perform the criminal act. It is its own crime and generally must be pled. An exception exists if the defendant is charged with accessory before the fact to a completed murder, a theory of liability discussed below. Then, solicitation to commit murder becomes a lesser-included offense of accessory before the fact. State v. Westbrooks, 345 N.C. 43 (1996). Solicitation is not a lesser included offense of murder by acting in concert, another theory for holding a person liable for a completed offense. State v. Kemmerlin, 356 N.C. 446 (2002). The pattern jury instruction on solicitation is N.C.P.I—Criminal 201.20. Accessory before the fact need not be pled. An accessory before the fact is one who assists the principal actor in completing the [...]