Liability for conduct of another and inchoate offenses

Question 1

Types of liability for conduct of another and mens rea

Answer 1

principal accomplice and accessory after the fact and enterprise
1) intent to aid and 1) intent for commission of crime

2. mens rea: with intent to assist the principal and with the intent that the underlying crime be commited
   b. Mere knowledge that a crime may result from the aid is inufficient for accomplice liability, esp where aid involves the sale of ordinary goods at ordinary prices
   UNLESS there are other factors beyon dmere supplying of goods, like chargin inflated price, more serious the underlying crime as supplier understands it to be, the more liely a court is to find that supplying is necessary to the crime

a. recklessness and gross negligence crimes: if P’s crime requires a mental state of recklessness or criminal negligence, most jdxns hold an accomplice liable for intentional conduct that aids the P and manifests required recklessness or negligence
i. for ex giving keys to drunk person if you give keys to person if you should have been aware that giving keys would have created substantial risk of death of another

Question 2

Scope of liability for accomplice liability and withdrawal.

Answer 2

i. Guilty of all crimes he aided or encouraged just as if he did it
1. AND all other foreseeable crimes
ii. When a person is not an accomplice
1. mere presence ≠ accomplice
2. mere knowledge ≠ accomplice, must INTEND to aid or encourage.
3. for ex a bunch of guys drinking beer stolen by someone else ≠ actively aiding.
iii. Withdrawal: an accomplice can avoid criminal liability by withdrawing before the crime is committed. What is required to withdraw depends on how he assisted the principal.
1. Encourager: accomplice who only encouraged the P may withdraw by repudiating the encouragement before crime is committed.
2. Aider: accomplice who actually helped the principal must either neutralize the assistance OR otherwise prevent crime from happening (e.g. calling cops)

Question 3

Accessory after the fact

Answer 3

i. CL approach: separate common law of being accessory after the fact a ∆ must
1) aid with 2)knowledge and 3)intent

1. help a ∆ who has committed a felony
2. with knowledge that crime has been committed and
3. with intent to help P avoid arrest or conviction
   ii. Modern law approach: in many jdxns, CL accessories after the fact commit separate statutory crimes, e.g. obstruction of justice, harboring a fugitive, hindering prosecution

Question 4

Enterprise liability

Answer 4

corporations and their agents. (similar to vicarious liability in torts– a way to hold the co criminally responsible for acts of the agents)

i. General rule: when a corporate agent engages in crime, the corp AND the agent may be held liable, provided the agent is acting
1. on behalf of the corporation AND
2. within the scope of his or her office
ii. Public welfare offenses: when a corp commits a regulatory offense involving public health or safety, agents can also be criminally liable, provided agents stand in responsible relation to the situation creating the public danger
1. the statute should create criminal liability – for ex FDA

Question 5

Offenses involving judicial procedure

Answer 5

perjury, subornation of perjury, bribery, compouding a crime, misprison of a felony

Question 6

perjury

Answer 6

intentional taking of a false oath (lying) in regard to a material matter (something that might affect the outcome) in a judicial proceeding

Question 7

Subornation of perjury

Answer 7

procuring or inducing another to commit perjury

Question 8

Bribery

Answer 8

i. Common law—corrupt payment or receipt of anything of value for official action
ii. modern statutes—may extend to nonpublic officials, and either offering OR taking may constitute a crime

Question 9

Compounding a crime

Answer 9

agreeing for valuable consideration not to prosecute another for a felony or conceal the commission of a felony or location of a felon

Question 10

Misprison of a felony

Answer 10

failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony.
i. modern law—requires affirmative action of aiding a felon

Question 11

3 inchoate offenses

Answer 11

solicitation, conspiracy, attempt

Question 12

Solicitation

Answer 12

1. definition: asking someone to commit a crime with the intent that the crime be committed
2. mental state: specific intent
3. Completion unnecessary: the crime is in the asking
4. for ex asking someone to help you commit a crime

Question 13

Conspiracy

Answer 13

1) agreement + overt act
1. requirement: agreement bw 2 or more ppl to commit a crime, plus an overt act in furtherance of the crime

a. Agreement: need not be express can be proved by conduct, that is a concert of action
b. overt act: ANY act even if merely prepatory, performed by ANY of the co-conspirators—
i. not a req in historical common law
c. MUST HAVE 2 PEOPLE: so if one person is undercover or faking it, the other cannot be charged of conspiracy. (may still be guilty of attempt)
i. Otherwise you can entrap people by just getting them to agree to commit a crime, without actually doing anything.

2. Mens rea: specific intent to do two things
   a. enter an agreement AND
   b. accomplish objectives of conspiracy
3. completion unnecessary: essence is agreement. completion of the conspirational objective is unnecessary

Question 14

Can you have a one person conspiracy

Answer 14

a. CL rule: NO
i. bilateral approach: must be at least 2 guilty minds,
ii. Related rule: if all other parties are acquitted the last remaining ∆ cant be convicted
b. MPC: YES, a ∆ may be guilty even if other parties are acquitted or were just pretending to agree
i. for ex the others were cops undercover
ii. bc sting operations are more common, easier to prosecute. entrapment hard to prove. prosecution friendly

Question 15

Conspiracy – wharton rule

Answer 15

when 2 or more people are necessary for the commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement
a. for ex if the crime is a duel, two people are NEEDED to do the crime, so not a conspiracy. must have at least 3 ppl

Question 16

Conspiracy– vicarious/ pinkerton liability

Answer 16

a. VERY prosecution friendly. in addition to conspiracy, a ∆ is liable for other crimes committed by co-conspirators so long as the crimes were
i. commited in furtherance of the conspiracy’s objective AND
ii. were foreseeable.
iii. pinkerton case– ∆ was in jail, co conspirators were outside committing crimes. he was racking up felony after felony

Question 17

Is impossibility a defense to a charge of conspiracy

Answer 17

7. Impossibility: is not a defense to a charge of conspiracy
   a. factual impossibility is not a defense- for ex, conspiracy to kill but V is still dead. Can still be convicted of conspiracy for murder

b. withdrawal or abandonment is not a defense to a completed conspiracy, it only immunizes ∆ from subsequent foreseeable actions

to withdraw from a conspiracy
i. if all you did was utter words of encouragement– then repudaition is enough to immunize yourself from subsequent foreseeable actions
if you actually commited some acts– must neutralize assistance to immunize yourself from subsequent foreseeable actions

can still be charged for conspiracy

Question 18

Attempt required acts and mens rea

Answer 18

1. Basically: substantial step + specific intent
   a. unlike conspiracy, attempt requires an overt act BEYOND mere preparation.
   c. MPC/ majority approach—substantial step test (better for prosecution) – ∆ must engage in conduct that constitutes a substantial step towards commission of crime, provided that conduct strongly corroborates the actor’s criminal purpose
   b. Minority/ common law proximity test (better for ∆) – ∆ must engage in conduct that gets dangerously close to the commission of the crime

i. For ex: buying an untraceable gun in prep for murder
CL: not close enough to be “dangerously close to commiting a crime”
MPC: jury MAY find buying a gun is a substantial stpe

ii. for ex: driving along route V usually takes when walking home from work
1. Common Law: no not dangerously close if can’t find victim
2. Majority/MPC: jury MAY find is substantial step

b. Unintentional crimes: cant attempt unintentional crimes bc you cant intend to do something unintentional. No attempt for 3 classes
i. recklessness, negligence or felony murder

Question 19

Inchoate offense doctrines. withdrawal

Answer 19

i. Withdrawal /renunciation/ abandonment: what happens when a solicitor, coconspirator or attemptor changes his mind
1. General rule: withdrawal is NOT a defense
a. Exception: withdrawing from a conspiracy means no longer vicariously liable for crimes committed by co-conspirators after he left.
i. still liable for anything that happened before withdrawal.

ii. effective withdrawal
1. must occur before the crime is committed
2. repudiation is sufficient for mere encouragement
3. clear withdrawal and neutralize assistance required if more than mere encouragement
4. may contact the police in time to withdraw
5. mere withdrawal without action is insufficient

Question 20

Exception to accomplice liability

Answer 20

iii. exception to accomplice: if the legislative intent is to protct members of a class from exploitation, members are immune from liability, even if they participate.
1. for ex. young girl cannot be accomplice to statutory rape

Question 21

Conspiracy and merger

Answer 21

conspiracy does not merge into the substantive offense

Question 22

Merger rules for inchoate offenses

Answer 22

1. solicitation and attempt merge with the completed crime
2. BUT CONSPIRACY DOESN’T MERGE (UBE FAVORITE)
   c. See hypo p. 33 of pdf summarizing inchoate offenses.