How Acting in Concert Principles are Especially Dangerous for High School and College Kids
In my experience, younger people have an underestimated view of their level of risk when they are with other people who they know outright are doing wrong or should reasonably know that they are doing wrong. The attitude can be summed up as sort of a “not my problem” point of view. And at a certain theoretical level, this attitude mostly works.
Given a perfect ability to interpret people’s motives and actions, given a perfect ability to discern the otherwise secret operations of people’s minds, and given a perfect ability to tell when people are lying and when they speak the truth, the legal concept of acting in concert poses no risk to the truly innocent, even when they are in the company of the guilty.
But that’s a lot of givens. In the universe that I occupy, none of the above givens are “given” at all. In my universe, humans have a far worse ability to correctly interpret motives, guess at what others are thinking, and tell truth from falsehood than we like to believe.
And there is the difficulty.
So what is this big bad concept of “acting in concert” and why should anyone be worried about this principle’s tentacles wrapping around our innocent children to drag them into the criminal justice system as defendants?
The idea behind acting in concert is simple and even sensible really. Essentially, the principle of “acting in concert” allows the law to punish group criminal behavior, which is a good thing. In the absence of acting in concert principles, a group of people could get together to commit a crime, divide the crime up into individual pieces, commit the crime collectively, but none of them individually would be guilty of the crime.
Suppose, for example, that a particular crime requires that the criminal do three things, A, B, and C. Jack wants to commit this crime, but if he does all three things, he will be guilty and will be punished. So Jack joins forces with Jill. Jack does A and B. Jill does C. When they are arrested both Jack and Jill’s lawyers file motions to dismiss because the government won’t be able to prove that either Jack or Jill did all three things. Jack did A and B, but in order to be guilty of the crime, you have to have done A, B, and C. Jill did C, but not A, B.
The Criminal Law's way of addressing this problem is through “acting in concert” type principles to account for group criminal behavior designed to achieve criminals ends through group effort.
Now exactly how you formulate this principle could go any number of different ways, and could require greater or lesser “involvement” to be considered “acting in concert” and could trigger more or less punishment. But in New York at least, the principle of acting in concert is as broad as it can almost possibly be. Further, our law recognizes no distinction between someone who is acting in concert to commit a crime and someone who alone commits every single part of the crime entirely.
This means that any involvement with a view toward committing a crime, no matter how small that involvement is, makes a person guilty of whatever crime was committed in the Group effort. Another way of putting it might be that if you participate 1% in the commission of a crime, you are 100% guilty of that crime, exposed to the same conviction and punishment as if you yourself had committed the crime entirely alone. Remember that it must also be true that your intent was that the crime be committed, but that intent is up to the jury to decide based on the evidence. We will talk more about that shortly, but for now remember that evidence of intent will never be a printout from a machine that can read your mind and know your intent. Your intent will always be the subject of debate.
Here is Part of what judges in New York tell juries about acting in concert. This is what Judges in New York exactly read (in part) to juries about this issue
When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
Pretty powerful stuff, right? As long as you share the intent that a crime be committed, intentionally aiding in that crime will make you guilty. Notice that it doesn’t say, intentionally aiding “a lot” or “to a significant degree”. Any aid at all, no matter how tiny, no matter whether it even ACTUALLY aided, is enough to make you guilty. Even more, simply requesting that another person commit a crime, even if you don’t do anything to aid at all, will make you 100% guilty. Wow, right?
On the other hand, you might respond, so what? It still requires proof that you intended to commit the crime. If you are pure of heart, and say your prayers at night, what could you, or more important, your high school or college aged kids, have to fear?
Well here is where a bit of understanding of the criminal justice system and how it works on a day to day basis comes in to play.
Understand that if your defense in a criminal charge is going to be that you did not have the intent to commit the crime, then you are on a runaway train toward your trial, about a year or so after the arrest. Your intent is never something that is capable of direct proof because we don’t have machines that can peer into the secret operations of your mind.
This means that the evidence regarding your intent may be strong, weak, or somewhere in the middle, but it will never be mathematically conclusive and it will always be subject to debate. If the biggest problem with the Government’s case against you is that their argument about your intent is weak, start prepping for trial now because it is the rare case indeed where the Government fears to try such a case. The Government takes weak cases to trial all the time. Now maybe a trial is what you want and maybe even if it isn’t what you want, it could well be that you will have the assistance of a wonderful criminal defense lawyer and you will be successful at trial. But don’t imagine that the obviousness of your lack of intent will be so obvious to the Government that they will simply cry “Uncle” and give up, quickly dismissing your case.
Ok, maybe if I get arrested for acting in concert to commit a crime, it could be tricky, but if I am innocent of any crime the circumstances where I am at risk will be pretty small, or even non-existent, right?
Not if you are a high school or college age person it isn’t.
We older folks don’t tend to travel in packs that much, and when we do, it tends to be in smaller groups of people we know very well and in very particular circumstances. The same is not true about younger people.
High school and college aged kids exist in a world of constantly shifting social groups, they find each other at parties of friends of friends, they gather at clubs, and they regularly meet, hang around with, and get rides in cars from people they don’t really know that well or even at all. Add to this that young people can act foolishly when sober, let alone in circumstances where they may be under the influence of some substance or other. And add to this that younger people will tend to be out well past the hour where “nothing good” ever happens.
Then it happens.
Maybe your son (or daughter) is walking with a group of kids late at night and one of the people he is “with” sees a lone pedestrian walking by. This bad person your son happens to be "with" at this point then punches the pedestrian in the face, knocking him to the ground, grabs the cell phone from his hand, and runs away.
Your son and the others, horrified, run away too, scattering. Within minutes, somehow, police are combing the area, and spot your son walking on the sidewalk a few blocks away. When the police found the victim and asked him what happened, the victim said that "a group of kids" robbed him and took his cell phone. From the victim’s point of view, it was a group of kids who robbed him. Maybe he would have fought back but for all of the robber’s “friends” standing right there. Maybe the victim even says as much to the police. The police do know that nobody among the group of people with the main robber called 911, and the victim says that nobody in the group did anything to stop it.
Your son matches the description of one of the kids in the group, so the police stop him and detain him. Your son, being honest, tells the police he saw the whole thing and that some kid he was with whose name he didn’t know did it and ran away and that he didn’t know what to do so he ran away. (By the way, the honesty of your totally innocent son has just gone a long way toward building the Government's case against him.) The police have the victim brought to where your son is being held and the victim identifies your son as being “with” the guy who actually punched him and took his phone. This confirms what your son has already acknowledged, that is that he was “with” the robber.
And now comes the hard part.
Now your son is arrested for robbery in the second degree, a class C violent felony with a mandatory minimum of 3 1/2 years in state prison.
Your son is arrested on the strength of the almighty “acting in concert” theory. Your son was “with” the robber and maybe your son was providing support for the robbery by acting as a lookout, or simply providing support by being physically present to intimidate the victim into not resisting. The police don’t typically concern themselves much with the niceties of “intent” evidence. They leave that to the prosecutors and judges. They have a “perp” who admitted to being “with” the robber who admitted to running away from the scene, who was identified by the victim, and who was caught a few blocks away shortly after the robbery. Sure he says he “didn’t do anything” (don't they all?), but the police also know that he didn’t try to stop it, and they also know that he certainly didn’t call 911 to report a robbery to help them catch the robber. He also conveniently “doesn’t know” the name of the person who he was “with” late at night.
They are going to arrest your son and let the courts figure out his intent.
So, yes your son didn’t have the proceeds of the robbery on him, yes, even the victim says your son was not involved in the physical act of the robbery itself in any way, and yes, your son told the police he wasn’t involved.
But your son was still arrested and is still being prosecuted for a C violent felony.
This is the power of acting in concert.
Now is the Government’s case here the strongest ever? Maybe not. Maybe other members of the group (who are willing to risk arrest themselves) come forward to support your son’s innocence. But is anything likely to cause the Government to give up on the case? Not likely. Maybe they make your son's lawyer a “good” offer - maybe even a substantial deviation from the most serious charge in order to avoid a mandatory minimum or even any jail sentence at all. But the choice will likely be between trial and some sort of settlement involving a plea of guilty to something.
And before you quickly and reflexively say that of course your innocent son would go to trial and not plead guilty to anything he didn’t do, consider the pressures that you and he will face thanks to “acting in concert” and the mandatory minimum sentencing laws in New York.
Remember that bit of the acting in concert jury charge I quoted earlier? That charge is one of the last things the jury will hear before they start to deliberate - and it will be read to them by the Judge. Any involvement is enough. And remember how your son said that he was “with” the robber? Of course your son simply meant that he was physically in a group of kids that included the person who turned out to be a robber. But your son didn't say it that way. Your son simply said that he was "with" him. The jury will hear about that statement. Only the prosecutor at trial will call it a confession. The power of words is incredible. The prosecutor will repeat that your son “confessed” to being “with” the robber at the time of the robbery.
Of course the defense lawyer will have to do damage control on the use of the word “with”. In an attempted murder trial once, I felt so buried under the weight of an admission of my client to being “with” the person who stabbed the victim, that I devoted most of a round of jury selection to a discussion of what it means to be “with” someone. I used a funny example involving two jurors meeting each other at a store across the street. They are “with” each other. I got a big laugh from all the jurors when I posed the following situation: Juror A buys a lottery scratch off and the ticket is an instant million dollar winner. Juror B responds by saying “Fantastic! I’m so glad we we were with each other. I can’t believe WE won a million dollars.”
The reason this is funny is the way it illustrates how we can be “with” people for some purposes, but not “with” people for others. In order to be successful in one of these “with” cases, it is vital that jurors begin to think about this different way we use “with”. Otherwise the acting in concert case simply becomes focused on how your client is “with” the bad guy.
This is similar to what I call the “proof by pronoun” case, where prosecutors constantly characterize the actions of two or more defendants as what “they” did. Banging the pronoun drum of “they” constantly in questions and responses of witnesses can be infectious and go a long way toward making the acting in concert connection among a group of defendants quite solid. It can be so infectious that it is common to see defense lawyers get sucked into the free and easy use of “they” almost is if conceding the acting in concert. The sneaky part of it is that it is a correct use of the word itself. A prosecutor can always claim to be using the pronoun only in its literal sense without meaning to suggest the acting in concert payload implications. But those implications are there beaten into the subconscious minds of all who hear. “What did they do then?” “After they beat you, where did they go?”
And of course the biggest confirmation of this drumbeat is when the government introduces evidence of your son’s statements, not where he admits to a crime, but where he uses the pronoun “we” to describe the actions of the group that includes the bad guy. “And then when we saw the kid, Jack hit him and took his phone.” Proof by pronoun strikes again. The use of “we” carries a payload. It concedes connection, and suggests a relationship. The debate is no longer whether there is a relationship. We only now need to decide how much of a relationship there is.
Words are powerful weapons. What may seem a simple pronoun spoken in an off hand way by a young innocent person scared and contending in a system he knows little accurate information about can become a spear aimed at his heart in a trial where acting in concert is the issue.
And finally, there is the issue of risk. Winning the trial is great. Case dismissed. But a loss, which is always possible, means a C violent felony conviction and a mandatory minimum of 3 1/2 years. That mandatory minimum is real. There is no discretion. Betting on victory means betting at least 3 1/2 years of your son’s life on the idea that if he is innocent, then he could not be convicted. And as much as any parent may be tempted to do prison time for his or her child, in the end, if there is prison time to be done, the child will do it.
This is the world in which you and your child are forced to contend if you insist on a trial in a situation such as this. The solution, to pursue the case to trial, or agree to some sort of settlement is often a difficult, heart wrenching, emotionally charged decision rarely with a single obvious answer. It's only as simple as "if you are innocent you should go to trial" when it is somebody else or somebody else's child at the center of the storm.
So wouldn’t it be better to avoid it altogether?
What if our kids had a better understanding and appreciation for how easy it is to be sucked into a criminal case through the power of acting in concert? What if our kids understood enough about acting in concert to be mindful of word choice if ever confronted by the police in such a situation, or knew perhaps that it might be best to say nothing at all? Maybe, just maybe, our kids might pay a little more attention to who they are “with”. Maybe they choose to walk away from risky people and risky situations because they have a better understanding of how easy it is to be grouped into the actions of others and how serious the potential consequences can be.
The above example is not some wild, unlikely, once in a lifetime chain of events, you should know. It is virtually a category of robbery cases that make up the day to day workings of New York City Criminal Courts. I couldn't even guess at the numbers of cases I have handled over the last 27 years that have been variations on the example used in this article. Even among those cases that end "well" the process of arrest, arraignment and defending criminal charges is stressful and miserable for everyone involved, parent and child alike.
How much better if it just never happened. Through better education of our kids about Criminal Law and procedure, I believe many of these cases might never happen.
By Don Murray, Esq.
Don Murray is 27 year veteran New York City Criminal Lawyer, and founding partner of Shalley and Murray. He has provided testimony in an international extradition matter as an expert in New York Criminal law, he has written a chapter for a multi-volume series of books for criminal defense lawyers, and he as consulted on various television and movie projects involving New York Criminal law. Most recently he consulted on set for the NBC mini series, The Slap, where he was rewarded for his assistance by being allowed to appear briefly in the show (as an extra). Mr. Murray has also lectured to a New York City private high school regarding the issues raised in this article.
Come back in the coming days for the follow up articles in this series. Up next: "Presumption, Presumption, What's Your Function?."