Modes of Liability

Question 1

Principals

Answer 1

First degree: performed the actus reus of the crime

Question 2

Forms of Accomplices

Answer 2

Second degree: present at the scene of the crime and aiding and abetting the fact to be done (literal or constructive—distant)
Before the fact: distance from scene but concerned in its commission prior to act
After the fact: provided assistance after the crime’s commission (disposing body, evading capture/detection), less culpable

Question 3

Assistance or Support by Accomplices

Answer 3

1. Act requirement for accomplice liability is very broad
2. Usually an accomplice must perform an affirmative act to support the principal
3. There is something more than a defendant’s passive presence during the planning and commission of a crime that is required to constitute “encouragement”
4. Mere presence or even prior knowledge does not make one a accomplice to a crime absent evidence showing that defendant advised, instigated, encouraged, or assisted in perpetration of crime. Passive behavior, such as mere presence, absent evidence that defendant affirmatively did something to instigate, embolden, or help others is not enough to qualify as encouragement.

Question 4

Purpose v. Knowledge for Accomplices

Answer 4

The federal courts require the purpose standard (specific intent)
Leonard Hand defined an accomplice as someone who in some sort associates himself with the venture that he participates in it as in something that he wishes to bring about, that he seek by his action to succeed
Knowledge must be advance knowledge to be sufficient for accomplice liability

Question 5

Natural and Probable Consequences Doctrine of Accomplice Liability

Answer 5

Happens when the principal performs a different crime than the one that was initially intended
A person encouraging or facilitating the commission of a crime could be held criminally liable not only for the crime but any offense that is a natural and probable consequence of the crime aided and abetted. Each person is responsible for everything done by his confederates which follows incidentally in the execution of the common design as one of its probably and natural consequences even though it was not intended as a part of the original design or common plan.

Question 6

Elements of “Aiding and Abetting”

Answer 6

(a) have to have knowledge of the unlawful purpose of the perpetrator
(b) and intent or purpose of committing encouraging or facilitating the commission of the predicate or target offense
(c) by act or advise aided promoted encouraged or instigated the commission of the target crime
(d) defendant’s associate committed an offense other than the target crime
(e) the offense committed by the associate was a natural and probable consequence of the target crime that the defendant aided and abetted.

Question 7

Innocent Instrumentality Rule

Answer 7

One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. An intervening act which is reasonably foreseeable cannot be relied upon as breaking the chain of connection between an original act of negligence and subsequent injury.

Question 8

Conspiracy as a Mode of Liability

Answer 8

Each coconspirator criminally liable for offenses committed by other co-conspirators under Pinkerton (vicarious criminal liability)

Question 9

Pinkerton Liability

Answer 9

Conspirators are vicariously liable for crimes committed by their coconspirators that are either
1. Part of agreement
2. Not part of the conspiratorial, but reasonably foreseeable as a consequence of that agreement
3. Crimes committed by coconspirators which are outside the scope of the conspiratorial agreement are reasonably foreseeable if the time was objectively foreseeable form the perspective of a reasonable person in singular circumstance