Unto itself the Law of Parties statute is fine. It holds that if two or more people are involved in the commission of a crime, then principal offender(s) and the accomplice(s) are equally responsible. In the Anglo-American criminal justice system, this idea of equal responsibility between principal and accomplice criminal conduct is hundreds of years old.

The classic example is a bank robbery. One person goes in the bank with a gun and the other stays in the car to be the getaway driver. Even though sitting in a car outside of a bank is not (by itself) illegal, the getaway driver is also equally guilty of robbing the bank. It is no defense for the getaway driver to argue anything like “But I never got out of the car”. The getaway driver knew that the bank was being robbed and did nothing to prevent it. Also, if a bystander gets killed during the bank robbery, then the getaway driver is also equally guilty of capital murder. The getaway driver can’t argue “But I didn’t kill anyone.” And this felony-murder rule is hundreds of years old. It applies in every state of the United States.

This begs a second example. Two people are in a car. The passenger is carrying a gun, but the driver doesn’t know it. While going down the street the passenger says, “Oh, stop in front of that bank. I need to cash a check. I’ll be right back”. But instead of simply cashing a check, the passenger goes into the bank and robs it. When the passenger gets back into the car, he doesn’t say anything about the robbery. Thinking that the passenger has cashed his check, the driver drives the car away. The driver is not guilty of any crime. The Texas Law of Parties does not make the driver equally responsible for this second bank robbery. The driver didn’t know what was going on. However, the driver will probably be in for the hassle of his life. Even though technically innocent until proven guilty, the driver will probably need to prove (instead of the other way around) to the prosecution the he didn’t know that the bank was being robbed. This is the real problem with the Texas Law of Parties, having the prosecution use it in circumstances in which it shouldn’t be used. The driver, even though interacting with the passenger immediately before, was clearly innocent of this bank robbery. The prosecutor is very likely going to argue “But you were in the car. You must have known that he was going to rob it.”

Third example. Two guys rob three banks within an hour. In each case, the passenger goes into the bank with a gun and the driver stays in the car. After the third robbery the passenger asks the driver to stop at a convenience store. The passenger says that he wants to buy some cigarettes. The driver stays in the car, but instead of simply buying cigarettes the passenger robs the convenience store and kills the store’s cashier. Is the driver guilty of this convenience store capital murder? It becomes a mess. The driver can truthfully argue “I didn’t know that the passenger was going to rob the convenience store and murder the cashier.” Conversely, the prosecution can legitimately argue “But you knew that the passenger was carrying a gun. You knew that you and he had just robbed three banks. This convenience store robbery-murder is clearly a continuation of a series of armed robberies. Thus, you’re an accomplice to (and just as guilty of) the convenience store murder.

In the first example, the driver is stone cold guilty of bank robbery. In the second example, the driver is absolutely innocent of all charges. And if the prosecution is fair and reasonable, the driver should be released within a couple hours after questioning. In the third example, the driver is going to get tried for capital murder. Whether the driver should be found guilty of capital murder in the third example will be left for the jury to decide.

I was getting ready to write a post on the common law tradition of this doctrine. Thanks for keeping me from having to do it!