Test-Taking Accomplice

Abstract

On June 13, 2007, Paul Formella, a junior at Hanover High School in New Hampshire, and two friends were studying at the town library near school. The school had a regular early dismissal day that afternoon, releasing the students at 2 p.m. After studying for about two hours, Paul and his buddies returned to school to retrieve some books from their second-floor lockers. Upon entering the school, they encountered a group of six students who said they intended to steal the mathematics final exams from the third floor. Paul's threesome agreed to serve as lookouts from the second floor, with instructions to yell, you get your math book? up to the third floor to alert the thieves if someone was coming. Paul and his two friends collected their books from their lockers and had second thoughts about alerting the thieves. They decided to head back to the first floor to wait for the other group. As they headed down the stairs, they encountered two janitors, who told them to leave the building. They did so but waited in the parking lot for the other group. When the others arrived, all of the students shared the exam questions, which included those for Advanced Math Honors that Paul was scheduled to take two days later. Eventually, 40 to 60 other students reportedly accessed the stolen exams. The following week, the assistant principal learned that some students had stolen the exams. The assistant principal called police, who interviewed Paul as part of their investigation. He admitted his involvement in the theft, leading to charges and ultimately conviction of acting as an accomplice. Convicted of this crime, Paul appealed his conviction to the state's highest court, because New Hampshire does not have an intermediate, appellate court. He claimed two reversible errors: 1) that the evidence was insufficient for guilt beyond a reasonable doubt, and 2) that the trial judge's failure to make factual findings of the timing of his withdrawal from the theft and the timing of the completion of the theft precluded application of the defense in the accomplice provision of the state's criminal code. Specifically, said provision excludes from accomplice culpability a person who terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness ... or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent commission of the crime. On November 21, 2008, the Supreme Court of New Hampshire rejected Paul's arguments, thus affirming his conviction as an accomplice to theft. (1) The judges were unanimous that--subject to their disposition of Paul's second claim--the evidence met the requisite quantum of proof based on Paul's confession to the captain of the Hanover police department, who testified credibly at the trial. Indeed, he did not dispute the precedent that agreement and action to serve as a lookout suffices for accomplice liability. For Paul's second claim, the judges reached the same conclusion by two different routes. At issue was whether 1) Paul terminated his complicity, 2) the termination was prior to the commission of the crime; and 3) Paul wholly deprived his complicity of effectiveness. Paul met the first of these required elements. But the Model Penal Code and its accompanying commentary require an affirmative overt act, such as making one's disapproval known to the principals sufficiently in advance of the commission of the crime to allow them time to reconsider. The majority of the justices concluded that Paul did not meet this requirement. Instead, recalling Paul's testimony that he and his companions had simply left the scene after initially checking to confirm or dispel whether anyone was around, the court observed: He did not communicate his withdrawal, discourage the principals from acting, inform the custodians, or do any other thing which would deprive his complicity of effectiveness. …