The Getaway Driver


What do we do with the driver of the “Getaway” car? Is he responsible for the actions of those who exit/enter his car as part of the robbery or burglary of a premises when he drives them there or away? As with most legal issue, the answer is It all depends.

Depends on the facts, and what the reasonable person would know upon seeing those facts.

There are two types of evidence presented in court: Direct and Circumstantial.

Direct evidence comes from a witness who tells us what he saw or heard the defendant do or say. But witnesses bring their baggage with them.

  • Sometimes they fail to appear in court, or on time,
  • Or they testify inconsistently with their pre trial statements, or refuse to testify,
  • They may have been high on drugs when they made their observations,
  • Or have several felony convictions
  • They may have biases or motives and appear not believable to the jury.

The other is the form of evidence I always preferred: Circumstantial.

With that form of evidence, the facts suggest what happened. Fingerprints, hair or clothing fibers or DNA tells us who was at the scene. That evidence is presented by crime scene techs and the forensic scientists at the Crime Lab. They tend not to have prior felony convictions nor were intoxicated at the time they performed their work. They usually appear when subpoenaed, and despite some allegations by defense attorneys have no bias or motives to color their testimony.

Another form of circumstantial evidence to show who committed the crime may be the testimony of the police officer who saw the defendant wearing the victim’s jewelry, or cell phone records indicating the presence of the defendant in a certain location. This may place the defendant in the vicinity of the crime or refute his claimed alibi.

One story I used to tell juries after defense counsel argued to the jury that circumstantial evidence was not sufficient to convict, was that of a homeowner who paved a new sidewalk in front of his house. He hired a dozen clergymen of several faiths to stand all night around the wet cement to guard it.

In the morning our homeowner went out and asked the clergymen if anyone had walked on the wet cement. “No one, Sir,” they all responded. “As God is my judge, I saw no one even come close.”

Problem was the homeowner saw footprints in the cement. What do we rely upon? Which is more reliable: the direct unimpeachable testimony of the clergymen, or the circumstances of the footprints?

The facts cannot be mistaken, or have a motive to lie. Which evidence is stronger?

Returning to our getaway driver, what evidence can we use to prove our case, or even if we have a case.

If the driver had prior knowledge of the crime to be committed, and did something to encourage or assist the main actor to commit the crime, he is a principal and the law treats him as if he did all the things the other person did, if he knew the crime would be committed, and did some act or said some word to assist the person to commit the crime. There are plenty of people in the slammer, not only for robbery, but for the homicide committed during the robbery, even though they had no knowledge that their armed buddies were going to shoot anyone.

Mere knowledge that a crime is about to occur, or presence at the scene however proves nothing. What would make the driver culpable for the actions of the main subjects? We could have some direct evidence of prior conversations, or possibly circumstantial evidence of the driver’s participation by chasing another car in a reckless manner moments before his passenger fired into the other car. Without such prior knowledge and assistance, there is no responsibility for the actions of others.

What if the passenger asks the driver to stop at the convenience store (so he can go in and buy something?). Without further evidence (direct or circumstantial) of the driver’s involvement, he has not committed any crime.

Now let’s look to the actions of the passenger (or passengers) as he (they) return to the car. Running out of the store with a gun in one hand and a handful of cash in the other (let’s jazz it up and have the victim running out after them yelling, “Stop thief,” should put a reasonable person on knowledge as to what happened in the store. Driving the main subjects away after viewing that conduct is clearly assisting the felon get away On the other hand, walking slowly to the car with no suspicious activity would not involve the driver in whatever happened inside.

Based upon the evidence, all the circumstances indicating that a crime has taken place, our driver buys into the robbery by driving them away. He is not a principal as there is no evidence he had prior knowledge, but he clearly renders assistance with knowledge of what his passengers did. Fleeing from the pursuing police cars. lights and sirens going, only ads to what his intentions are. Assistance after the fact is the crime of Accessory After the Fact. The operative word is after. Prior knowledge and assistance makes him a principal. If the only evidence is the helping afterwards, the driver is not a principal and not responsible for the robbery. Accessory is generally a lesser crime. Be careful which one you charge as if you select the principal theory, and the evidence indicates the only help he gave was after the fact, our bad guy walks.

The crime of Accessory After the Fact requires knowledge on the driver’s part of the fact that a crime was committed and that he then did some act that assisted the main subject in avoiding arrest, prosecution or punishment? Would this apply to the girlfriend who alibis up her guy to the investigator? Has she assisted him in avoiding arrest, after she has knowledge of his criminal activities, or hides him knowing the cops are looking for him? If the evidence is there, she goes to jail.

When relying upon circumstantial evidence, the circumstances must not only be consistent with guilt, but inconsistent with any reasonable hypothesis of innocence.

We do not allow a jury to speculate on which hypothesis to follow. If both are reasonable, they must accept the inference leading to innocence.

Therefore, when the evidence only shows the passengers returning calmly to the car, one reasonable hypothesis is that the driver has no knowledge of what they did in the store. Would a wild police chase change anything? Suppose the driver was running as his license was suspended, or the car was stolen or he had open warrants? He may be going to jail, but not for the robbery his friends just committed, or the crime of Accessory After the Fact, even though one reasonable inference is that he did know what they had done. For a recent Florida case overturning such a conviction based upon such speculative circumstantial evidence see Grandison v. State, 2015 WL 1018102 (Fla. 1DCA, 2015).

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected], or thru LET.



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