Unit 30: Complicity III


  • Dressler 461-471

  • Pinkerton (CP)

Key Words: 

  • abandonment

  • Pinkerton liability


Common Law Limits to Accomplice Liability

A victim of the crime cannot be guilty as an accomplice.

Many jurisdictions recognize the defense of abandonment. In order for the defense to apply, the accomplice must negate any aid that he or she provided. For example, if the accomplice helped the principal to light and set a bomb, then the accomplice must deactivate the bomb. If the accomplice encouraged the principal, then the accomplice must communicate withdrawal to the principal, or negate the given aid in some other way.

Pinkerton Liability

Under the Pinkerton doctrine, a member of a conspiracy is liable for any crime committed by a co-conspirator if (1) the crime is “committed by one of the conspirators…in furtherance of the conspiracy,” (2) the crime “fell within the scope” of the conspiratorial agreement and (3) the crime can be “reasonably foreseen as a necessary or natural consequence of the unlawful agreement.”  For example, if Jim and Kathy agree to rob a bank, and Jim steals a car to use as the getaway car, Kathy would also be guilty of stealing a car under Pinkerton. Kathy would be guilty even if she was unaware that Jim had committed the offense and had not agreed to it.

The federal system and a majority of jurisdictions follow Pinkerton.

Accomplice Liability under the MPC

Under MPC 2.06, a defendant is liable for an offense if it is committed by his own conduct or by the conduct of another person for whom he is legally accountable. A defendant is legally accountable for innocent instrumentalities (innocent agents a person causes to commit a crime); however, to be liable, the defendant must have the requisite mens rea (MPC 2.06(2)(a)). A person can also be legally accountable for the conduct of another if defined by another statute or the MPC (2.06(2)(b)). Finally, a defendant can be liable as an accomplice (2.06(2)(c)).

The actus reus requirement for accomplice liability is satisfied if the defendant (1) solicits the offense, (2) aids, agrees, or attempts to aid another person in planning or committing the offense, or (3) omits to act where there is a legal duty (MPC 2.06(3)(a)(i)-(iii)). Notice that aid does not have to be effective to constitute the act under the MPC (“attempt to aid”), departing from common law.

The MPC requires a two-fold mens rea similar to that under the common law: (1) the accomplice must act with purpose as to the principal’s conduct in committing the offense, and (2) the accomplice must possess the same mens rea in the statute as to the result.  As with the common law, the required mens rea as to the attendant circumstances is ambiguous under the MPC.

The MPC rejects the natural and probable consequences doctrine and Pinkerton liability.

A victim of a crime cannot be liable for the offense (2.06(6)(a)). A person whose conduct is “inevitably incident” to the commission of the offense (such as a drug purchaser) is also not liable as an accomplice (2.06(6)(b)). Finally, the MPC recognizes abandonment as a defense: the person must end his participation in the crime before it is committed, and negate the aid rendered, warn the police, or otherwise prevent the crime from occurring (2.06(6)(c)).

Attempting to Aid and Aiding an Attempt under MPC 2.06 and MPC 5.01

Suppose the accomplice provides aid to the principal.

If the principal is arrested after taking a “substantial step,” but before completing the crime, then the principal would be guilty of attempt under M.P.C. 5.01. The accomplice who provided aid to the principal would also be guilty of attempt, through the doctrine of accomplice liability. If the principal is arrested before taking a “substantial step,” however, then the principal is not guilty of attempt (or any crime). But the accomplice would be guilty of attempting to aid the principal, which is recognized as a form of attempt under MPC 5.01(3).

Questions for Review:

Q1. Steven provides Janie with a gun, intending to help her kill her abusive father. Janie is arrested before she has taken a substantial step toward the commission of the offense. Is Steven liable under the MPC?

Q2. Teresa is running late getting to the airport to catch a plane. She tells her taxi driver Bob that the faster he drives, the more that she’ll tip him. When he drives fifteen over the speed limit, she says she’ll tip him $15. When he drives thirty over the speed limit, she says she will tip him $30. Bob is driving thirty over the speed limit when traffic up ahead comes to a stand still, and although he brakes, he is unable to stop in time. He crashes into a car, killing the passenger. Bob is found guilty of negligent homicide. What is Teresa’s liability under the MPC?

Q3. Xavier and Yolanda agree that they are going to murder their neighbor. Then, Xavier leaves town for a week to attend a conference. While Xavier is gone, Yolanda robs a convenience store at gunpoint and takes black masks, duct tape, rope, and a tool kit. When Yolanda’s friend Zelda comes over and sees the supplies after hearing about the robbery on the news, she confronts Yolanda. Yolanda kills Zelda and hides her body in the deep freezer. Xavier returns home, and they use the supplies Yolanda stole to break into their neighbor’s house. They are wearing masks and ready to kill him as soon as he comes home. They are then arrested by the police. In a Pinkerton jurisdiction, what crimes is Xavier liable for?