Secondary Liability

Question 1

What are the three relationships that people can have to a committed crime?

Answer 1

Implicated person can be:

1. Principal;
2. Accomplice; OR
3. Accessory after the fact

Question 2

Who is the principal?

Answer 2

The person who commits the crime

Question 3

What is an accomplice?

Answer 3

(1) A person who aids or encourages the principal (2) with the intent that the crime be committed

Question 4

What MR is required to be held liable as an accomplice?

Answer 4

If MR for a crime is recklessness, may be accomplice through recklessness (majority, incl. NY)

Question 5

What crimes can an accomplice be charged with?

Answer 5

1. All crimes he aids or encourages, as if he had committed the crime himself; AND
2. All other foreseeable crimes along with the aided crime

Question 6

How much of involvement must an accomplice have in the crime?

Answer 6

AR: Must actively aid or encourage the principal (mere presence not enough)

MR: Must intend to aid or encourage the principal (mere knowledge of crime not enough)

Question 7

NY QUESTION

In NY, what can a person be charged with if they have knowledge but not the intent?

Answer 7

Criminal facilitation (doesn’t rise all the way to accomplice)

Question 8

How does an accomplice withdraw?

(If Encourager)

(If Aider)

Answer 8

IF Encourager: Repudiating the encouragement before the crime is committed

IF Aider: Must either neutralize assistance OR otherwise prevent the crime from happening (e.g., notifying authorities)

Question 9

NY QUESTION

How does an accomplice renunciate (withdraw) in NY?

Answer 9

Accomplice must make a substantial effort to prevent the commission of crime

[Affirmative defense]

Question 10

What constitutes an accomplice after the fact?

Answer 10

Accomplice after the fact is a D who:

1. Helps a principal who has committed a felony;
2. Has knowledge that the crime has been committed; AND
3. Assisted P with the INTENT to help him avoid arrest or conviction (separate crime)

Question 11

What is the general rule for enterprise liability?

Answer 11

When corporate agent engages in criminal conduct, both agent and corporation are liable if:

1. Agent was acting on behalf of the corporation, AND
2. Acts are within the scope of his or her office

Question 12

What is the enterprise liability for public welfare offenses?

Answer 12

When a corp. commits a regulatory offense involving public safety, its AGENTS can ALSO be held criminally liable IF they have a “responsible relation” to the situation

(e.g., Where unsanitary conditions existed at Galactica Supermarket, both the company and its CEO Adama are criminally liable for FDA violations because Adama had the authority to address the situation)

Question 13

What are the elements of solicitation?

Answer 13

AR: Asking someone to commit a crime WITH the intent that the crime be committed

MR: specific intent (crime is in the asking—irrelevant whether crime is actually committed)

Question 14

What are the elements of a conspiracy?

(4 + Intent to ____…)

Answer 14

AR: (1) An agreement (2) between two or more people (3) to commit a crime, and they do (4) an overt act in furtherance of the crime.

MR: Intent to enter an agreement + Intent to accomplish the objectives of the conspiracy (crime is agreement; no completion required)

Question 15

What constitutes an agreement for a conspiracy?

Answer 15

Concert of action towards a common goal; need not be express agereement

Question 16

What constitutes an overt act for a conspiracy?

Answer 16

Any act, even if merely preparatory performed by any of the co-conspirators

Question 17

What is the bilateral approach to conspiracies (CL)?

Answer 17

At least two guilty minds, both of whom actually agree to accomplish the conspiracy’s objectives

(N.B. If all parties are acquitted, last remaining guy can’t be convicted)

(N.B. No conspiracy where only two guys and one is a cop; BUT SEE NY)

Question 18

NY QUESTION

What is the unilateral approach to conspiracies (NY)?

Answer 18

Only one guilty mind is required to form a conspiracy

(i. e. Can be guilty even if other parties acquitted OR Other parties only pretending to agree)
(i. e., Can be in a conspiracy with a cop)

Question 19

NY QUESTION

What is the Wharton rule?

Answer 19

When two or more people are necessary for the commission of the substantive offense, there is NO conspiracy UNLESS more parties participate in the agreement than are necessary for the crime.

(e.g., Apollo and Baltar agree to a duel, which is illegal; the cops arrive and charge them with conspiracy to engage in a duel. NO conspiracy, because the underlying crime (duel) required two people, and you’d need at least one more to form a conspiracy)

(NY follows Wharton rule)

Question 20

What is Pinkerton conspiracy liability?

Answer 20

D is liable for the other crimes of co-conspirators, if the crimes are:

1. Committed in furtherance of the conspiracy’s objective AND
2. Were foreseeable (even if D is in jail at the time)

Question 21

NY QUESTION

Does NY apply Pinkerton theory of conspiracy?

Answer 21

No

Question 22

Which defense is unavailable for conspiracy liability?

Answer 22

Impossibility (i.e. D may still be guilty of a conspiracy to kill an already-dead person)