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An accessory is someone who aided or contributed to the commission or concealment of a crime. There are two categories of accessories: accessory before-the-fact and accessory after-the-fact. Unlike an accomplice, an accessory does not need to have been actually or constructively present during the commission or concealment of the crime. 

Accessory before-the-fact

An accessory before-the-fact is someone who did anything to encourage, aid, or assist in any material manner in the commission of a crime, thereby “participating in the design of the crime.” See Johnson v. State, 290 So. 3d 1232 (Miss. 2020).

The basic elements the government must demonstrate to prove that a defendant was an accessory before-the-fact are: (1) someone committed the underlying crime; (2) the defendant advised and agreed, urged the parties, or in some way aided them to commit the offense; and (3) the defendant was not present when the offense was committed. See Evans v. State, 145 So. 3d 674 (Miss. 2014).

The quantity of the aid is immaterial and may come through some intermediary. The aid or counsel may be far removed in time from the commission of the crime, although it must be shown to have retained some relationship to it by causing, encouraging, or assisting the offense.

An accessory before-the-fact is as liable as a principal actor and may be indicted without regard to whether the principal has been convicted. One can be indicted as an accessory before-the-fact even if the accessory does not have the capability to perform the crime.

The primary distinction between an “accessory before-the-fact” and an “aider and abettor” is the actual or constructive presence of the party. If the defendant was actually or constructively present at the offense because of their participation, they are an “aider and abettor.” However, if the defendant was not present, they are an “accessory before-the-fact.”

Accessory after-the-fact

An accessory after-the-fact is someone who, knowing a crime was committed, receives, relieves, comforts, or assists the offender or in any manner aids them to escape arrest or punishment. See: U.S. v. Triplett, 92 F.2d 1174 (5th Cir. 1991). The aid provided by the defendant to the principal must be given after the principal completes the crime. 

The basic elements the government must demonstrate to prove that a defendant was an accessory after-the-fact are: (1) the commission of an underlying crime against the United States; (2) the defendant’s knowledge of that offense; and (3) assistance by the defendant in order to prevent the apprehension, trial, or punishment of the offender. See: U.S. v. White, 135 S. Ct. 1573, 191 L. Ed. 2d 656 (2015); Ellis v. U.S., 806 F. Supp. 2d 538 (E.D. N.Y. 2011).

It is not required for the government to prove that the defendant acted willfully and with specific intent to commit the original crime; rather, to convict someone of being an accessory after-the-fact, the government must prove that the defendant had knowledge of the original crime and acted with this knowledge when assisting the principal. If the crime charged is murder and the defendant aided the offender prior to the victim’s death and after the victim’s wound, the defendant cannot be convicted as an accessory after-the-fact to murder.

A defendant may not be convicted of both a crime and of being an accessory after the fact to the same crime. Except as otherwise expressly provided by a Congressional Act, an accessory after-the-fact cannot be imprisoned for more than one-half the maximum term of imprisonment nor fined more than one-half the maximum fine prescribed for the punishment of the principal. If the principal is punishable by life imprisonment or death, the accessory must not be imprisoned for more than 15 years. See: 18 U.S.C. § 3.

[Last updated in January of 2022 by the Wex Definitions Team