What Is an Accessory after the Fact?

Accessory after the fact is rarely charged in Virginia. To be convicted of accessory after the fact, the Commonwealth must prove that the defendant had actual knowledge of the commission of a felony and thereafter provided the perpetrator with aid or comfort. This cannot be charged with respect to an immediate family member.

It is not one of the more common charges in Virginia, but occasionally I will meet with someone who has been charged as an accessory after the fact. Often these individuals, with the best of intentions, have assisted a friend or family member with either hiding evidence or fleeing the scene of a crime, or in some cases sheltering them after they have committed a crime. Accessory after the fact is a serious charge, a Class 1 misdemeanor carrying up to 12 months in jail and a fine of up to $2,500. That said, it actually is a difficult crime for the Commonwealth to prove, and there is much that can be done to fight back against the prosecution.

First and foremost, to be convicted of accessory after the fact under Virginia Code §18.2-19, the defendant must have been aware of the underlying felony. Knowledge of the commission of a misdemeanor is not enough. Furthermore, the Commonwealth must prove that the defendant knew that a felony had been completed (not attempted). This knowledge element is the hardest part for the Commonwealth to prove. The Commonwealth can usually prove that the felony was completed, and that the defendant assisted the person in some way after the fact; but the challenge is demonstrating that the defendant actually knew about the felony. Knowledge is the critical element that most typically results in acquittal in these cases.

Also, it is important to note that the code section excludes immediate family members from prosecution. So if you provide assistance to your spouse, sibling, parent, child, or grandchild, you cannot be prosecuted as an accessory after the fact.

Again, this code section is rarely used. When I have seen it used it is often in a means to put pressure on a witness to "flip" and assist the prosecution with the underlying felony. Very often this can be avoided where the Commonwealth simply does not have the evidence necessary to prove the accessory after the fact charge. If you have been charged as an accessory after the fact in Virginia, contact our office right away. This is an unusual charge and is best addressed by a criminal defense attorney who has dealt with it before.

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