Vicarious & Accessory Liability

Question 1

What are the definitions of vicarious and accessory liability?

Answer 1

Vicarious liability=the relationship to the criminal alone is culpable - no action is required
Accessory liability = liability for the crimes of others when D has affirmatively been involved

Question 2

Is attempt a substantive crime?

Answer 2

YES but its definition and punishment are highly contingent on the object crime

Question 3

What are the 2 ways to calculate sentences for attempt?

Answer 3

Majority Rule: Sentence attempt as a lower grade of the substantive offense
MPC Rule: Sentence attempt at the same grade as the object offense but make exceptions for more serious offenses
(In practice, attempt is sentenced much more lightly than the object offense)

Question 4

What are 5 levers to fine tune the crime of attempt?

Answer 4

1) Raise or lower the bar for mens rea
2) Raise or lower the bar for actus reus
3) Raise or lower the bar for abandonment defense
4) Lowe the bar for police to stop/arrest someone but maintain a high bar for conviction
5) Create crimes of preparation

Question 5

What are the 2 standards for mens rea for attempt?

Answer 5

Majority (Smallwood) Defendant must actually intend to commit the relevant harm
Minority (MPC) Mirror the requirement of the object offense

Question 6

What are the two metrics for evaluating circumstantial evidence to establish specific intent?

Answer 6

1) The certainty of the action to cause the harm

2) availability of another motive to explain the actions

Question 7

What are the 2 standards for actus reus of attempt?

Answer 7

1) The Dangerous Proximity Rule-emphasis placed on what is left to complete
2) The Substantial Step Rule- emphasis is placed on what D has already completed

Question 8

What are reasons to raise the bar for actus reus in attempt?

Answer 8

Raise: We want to preserve the locus penitentiae
Lower: The longer you wait to intervene the more risky it becomes for the police

Question 9

Explain the impossibility defense to attempt?

Answer 9

Traditional Rule: Factual impossibility is not a defense (D thinks they are doing something illegal but facts to he world prevent the conduct from achieving the crime)
Legal impossibility is a complete defense (D thinks they are doing something illegal but tis not actually illegal)

MPC Rule: D is guilty if he did something which would objectively be illegal under the circumstances as he subjectively believes them to be

Question 10

What are the traditional and MPC rules for abandonment defense to attempt?

Answer 10

Traditional Rule: there is no abandonment defense
MPC Rule: If D either abandoned their effort to commit the crime or otherwise prevented its commission and that abandonment was a complete and voluntary renunciation of the criminal purpose, then its a defense

Question 11

Is complicity a substantive crime?

Answer 11

No, it is just another way to commit the substantive offense

Question 12

What is the punishment for complicity?

Answer 12

It’s the same as the object offense

Question 13

What is a principal and what is an accomplice for purposes of complicity liability?

Answer 13

Principal=the person physically present at the scene and committed the crime

Accomplice=anyone other than the principal who furthered the criminal efforts

Question 14

What are the 3 separate mens rea requirement for complicity?

Answer 14

1) D must specifically intend to encourage/assist the principal (can be proven with knowledge plus circumstantial evidence)
2) D must satisfy the mens rea of the ultimate crime committed by the principal
3) Mens rea for attendant circumstances

Question 15

What are the 3 options for actus reus for complicity liability?

Answer 15

Option 1) encourage/solicit/incite the crime (encouragement must be perceived but does not have to be effective)
Option 2) aid in the planning/commission of the crime (does not have to be a but for cause, presence along is mot enough unless there was a prior plan)
Option 3) Fail to perform a legal duty that might have averted the crime (suffers from the limitations for omissions liability)

Question 16

What are the dual burdens of proof for complicity liability?

Answer 16

1) Principal must be proven to have violated the law (must have a common criminal purpose)
2) Accomplice’s actions must be proved to have crossed into complicity

Question 17

What is the innocent agent exception to the requirement that the accomplice and principal share a common criminal purpose for complicity?

Answer 17

If the accomplice puppets an unknowing principal then the actions of the principal are imputed to the accomplice

Question 18

What is the Feigned Principal Exception to the requirement that the accomplice and principal share a common criminal purpose for complicity?

Answer 18

If the feigned principal is a police officer, then the accomplice can still be charged with accomplice liability even if the principal never had any criminal purpose

Question 19

Does attempted complicity ever exist?

Answer 19

Majority (CL Rule): No
Slim Minority (MPC Rule): Yes

Question 20

Does conspiracy liability attach more easily or less easily than attempt?

Answer 20

Conspiracy liability attaches more easily

Question 21

How is conspiracy sentenced?

Answer 21

Majority: Liability is capped at the object offense
Minority: Sentence without regard to the object offense (could even exceed)

Question 22

What are the elements of conspiracy?

Answer 22

1) an agreement
2) with at least one other person
3) to commit a criminal offense
4) and maybe an overt act towards the commission of the crime

Question 23

What are the different kinds of agreements that satisfy the agreement prong of conspiracy?

Answer 23

1) explicit agreement (can be proven circumstantially)
2) tacit agreement (the parties are aware of the collective criminal enterprise and each acquiesce to do their part)
Some Jurisdictions require Bilateral Agreement (genuine agreement) but some will accept Unilateral Agreement

Question 24

What are the two ways to define the scope of the conspiracy?

Answer 24

1) Hub and Spoke Conspiracy (may or may not be one large conspiracy)
2) Chain Conspiracy (one large conspiracy per US v Bruno)

Question 25

What are the two takes on the overt act requirement for conspiracy?

Answer 25

Minority (Traditional): no overt act required

Majority: Overt act required (but the bar is much lower than a substantial step)

Question 26

What is the mens rea requirement for conspiracy?

Answer 26

D must SPECIFICALLY INTEND the conduct and the object criminal offense (Can be proven via knowledge plus circumstantial factors)

Question 27

Is Conspiracy a substantive or vicarious crime?

Answer 27

Definitely substantive (and does not merge into the completed crime like attempt would)
Vicarious liability only exists under the Pinkerton Rule?

Question 28

What is the Pinkerton Rule?

What changes under the Bridges alteration?

Answer 28

Once a conspiracy is established, each conspirator is liable for all crimes committed to further the conspiracy as long as they are

1) in furtherance of the criminal goal
2) within the scope of the agreement (subjective)
3) reasonably foreseeable as the natural or necessary consequences of the conspiracy

Bridges says it doesn’t matter if the crime was within the scope of the agreement subjectively speaking, what matters is that the crime was an objectively foreseeable consequence of the conspiracy

Question 29

When is a conspiracy abandoned?

Answer 29

When none of the co-conspirators are acting in furtherance of the objective for the SOL

Question 30

What does it take to withdraw from a conspiracy?

Answer 30

EITHER 1) the conspirator affirmatively communicates the withdrawal directly to co-conspirators and acts in a way inconsistent with the conspiracy OR 2) reports the conspiracy to the police

Question 31

Is withdrawal a complete defense?

Answer 31

Traditionally, it is only a defense against the vicarious liability but not the conspiracy itself

Question 32

What is MPC renunciation?

Answer 32

Renunciation is a complete defense

must renounce the criminal purpose AND succeed in preventing the commission of the conspiracy’s objective

Question 33

What is the mens rea for corporate crime?

Answer 33

There is none

Question 34

What are the the 2 rules for determining what crimes a corporation is liable for?

Answer 34

1) Respondeat Superior (Least Defendant Friendly)

2) High Managerial Agent (More Corporate Friendly-MPC)

Question 35

What is a high managerial agent for the purpose of the MPC corporate crime liability?

Answer 35

Pure MPC: HMA is a person whose actions can fairly be presumed to represent the policy of the corporation

Beneficial Finance Version: HMA is in a position to act on the corporations behalf when engaged in particular business where the crime was committed

Community Alternatives Version: HMA are those who supervise employees

Question 36

When are corporate leaders held personally accountable for violations?

Answer 36

1) When they take any actions on the company’s behalf
2) If the leader is in a position of responsibility or authority to prevent or remedy the violation (Vicarious Liability)

Question 37

What is a defense to personal criminal liability for corporate leaders for the actions of subordinates?

Answer 37

Impossibility Affirmative Defense: If the leader was in fact powerless to remedy the violation, they are not liable

Question 38

What is the mens rea for a corporate leader for vicarious criminal liability for the actions of subordinates?

Answer 38

If regulatory/strict liability offense, then no mens rea is required
If its a traditional offense, the leader mist meet that mens rea