Defining Attempt Distinguishing End of Preparation from Beginning of Perpetration Attempt in Cases Where Target Offense Was Committed Renunciation as a Defense to Criminal Attempt Impossibility of Commission of the Target Crime as a Defense to Attempt
Similarities Between Attempt and Assault
Defining Solicitation Renunciation as a Defense to Criminal Solicitation
Defining Conspiracy Renunciation as a Defense to Criminal Conspiracy Withdrawal Before the Target Offense is Committed Wharton's Rule Admissibility of Acts and Declarations (Statements) of Conspirators
Accomplice and Coconspirator Liability
Common Law Complicity
Parties to Felony Offenses at Common Law
Principal in the First Degree Principal in the Second Degree Accessory Before the Fact Mere Presence Alone Not Sufficient to Make One a Second Degree Principal Attempting to Aid Causal Connection Between Complicitor's Conduct and Completed Offense Liability Under the Natural and Probable Consequences Rule
Model Penal Code Complicity
Texas Penal Code Complicity
Individual and Vicarious Corporate (or Enterprise) Liability for the Crimes of Agents and Employees of the Corporation (or Enterprise)
Our attention now turns to "inchoate" (being only partly in existence vis a vis substantively complete) crimes (1) - Up to now, most of the cases we have read have been about crimes that were fully completed in that the conduct (actus reus) was completed or the result that was desired, contemplated, risked, or hazarded was achieved, i.e., the target was hit. Most of the cases, thus far, have centered on criminal homicides where a person has been killed. Later we will learn a bit about other completed crimes such as larceny, robbery, burglary, assault, arson, rape, etc., where harm has been done to person or property, either actually, as in the case of crimes like murder, larceny, arson, or rape, or by being threatened, as in the case of assault where battery is threatened. We generally call completed crimes "substantive" crimes vis a vis the incomplete "inchoate" offenses where conduct is incomplete or a target is not hit. It certainly has occurred to you by now that with result-oriented crimes the harm by way of result may be missing. The same may be true with conducted-centered crime where the conduct is incomplete. We refer to the incomplete or unfinished crimes as preparatory offense or inchoate crimes. 'Inchoate" means incomplete. These crimes include attempt, solicitation, and conspiracy. See Sections 5.02 and 5.03 MPC and Chapter 15 TPC. See also Husak, The Nature and Justifiability of Nonconsumate Offenses, 37 Ariz. L. Rev. 151 (1995). On this web page, we shift our emphasis from complete crimes to consider the small group of so-called inchoate (incomplete) offenses - criminal attempt, criminal solicitation, and criminal conspiracy. First we consider attempt. The we will consider two closely related inchoate offenses - solicitation and conspiracy. As we will see, the attempt crimes can be done by one person. Criminal solicitation and conspiracy involve scenarios with multiple persons. We will begin the discussion by addressing criminal attempts.
Affectus punitur licet non sequatur effectus -
The intention is punished although the consequences do not follow.
Everyone seems to agree that it would be a perversion of the institution
of punishment to convict for thoughts alone.
142 U. Pa. L. Rev. 1443 (1994) Regarding attempt (1), (2), LaFave & Scott say " The crime of attempt ... consists of (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation." Criminal Law, West (2nd ed 1986). Suppose, for one reason or another, a completed substantive crime does not occur. What should the criminal law do? By that I mean, should we criminalize the failed effort to commit a substantive crime? If we say "yes" and call the new crime "attempt," we are faced with the dilemma of how to define the incomplete crime of attempt. Policy Issues Surrounding Attempt Crime: Attempt law poses two philosophical problems. First, why punish attempts at all? Is it because the conduct of the accused is dangerous, even though no harm was inflicted on the target? Second, why punish the attempt to commit a target crime with less severity than successful completion of the target crime? As to the first issue, is it because the person who attempts crime is a socially dangerous person? As to the second issue, we find that many jurisdictions punish attempt crimes with a range of punishment less severe that the completed crime. Is this leniency due to considerations of proportionality? At common law criminal attempts were misdemeanors. Punishment for criminal attempts in Texas, under Section 15.01(d) TPC, takes a one-step-down from the target offense approach, except that there is no attempted Class C misdemeanor because there is no punishment statute. The MPC generally treats the attempt crime as qualifying for the same range of punishment as the offense attempted, except when the target crime is a capital offense or a felony of the first degree, in which cases the inchoate attempt crime is treated as a second degree felony. See Section 5.05 MPC.. Isn't the classical eye-for-an-eye, tooth-for-a-tooth philosophy based on harm? Don't we think about the harm the offender has inflicted in determining what punishment should be assessed? Is it correct that the greater the injury, the greater the crime? What about conduct that fails to cause any demonstrable harm, e.g., shooting at a person and missing by a wide margin. Defining Attempt: What is an attempt? Start from the proposition that thoughts alone cannot be punished by the criminal law. (I'm grateful for that, and assume that you are too.) There has to be some level of mens rea and actus reus.The focus is on the accused's state of mind and the proximity to the target. Yet conduct does play a part. There is a requirement of conduct, but there are different approaches in determining the minimal conduct that will suffice for an attempt. Attempt is a specific intent crime in which there is always a purpose to complete the conduct necessary to achieve the target or offense that is the objective, along with the intent necessary to attempt the target offense. Traditionally, attempt has been considered as an endeavor to accomplish a crime, which endeavor is carried beyond mere preparation but which falls short of the ultimate design in some particular, i.e., a substantial but ineffective effort to commit a target crime. It is, of course, obvious that there is going to be difficulty in some cases in determining when an attempt begins and when mere preparation ends. Read what Judge Richard Posner has to say about the meaning of "substantial step". When Posner speaks, the legal community listens. Read his opinion in United States v. Gladish, 536 F.3d 646 (7th Cir. 2008). (1)
The law of attempts is an excellent example of application of the minimum conduct requirement. How much is enough? As we consider the definition of attempt, we must decide how to measure the continuum of conduct. We can start from the end or from the beginning. If we start from the end, we would consider the conduct or result that the actor wanted to achieve and look back from the targeted end, asking ourselves how close the actor came in his effort. On the other hand, if we started from the beginning and looked forward, we might well ask ourselves how far the actor had come in his effort to engage in the conduct or cause the result. The issue of what distinguishes attempt from mere preparation is about the only area in which there has been any doctrinal attention to the question of how much conduct is enough.There is no precise formula to determine the existence of a criminal attempt. In determining if you have an attempt, we certainly want to look at the actor's intent.
[Note: Sometimes a penal code will criminalize preparatory conduct that does not constitute an attempt. For example, the substantive crime of possessing burglary tools with intent to use them is a substantive crime under Section 16.01 TPC. Quite a few other substantive crimes are punished on the basis of risk creation by conduct, e.g., reckless driving or DUID, rather than harmful result. In some substantive crimes, e.g., burglary, there is a purpose to cause greater harm than is explicit in the actor's conduct.]
- At common law, attempt came into being in the late 1700's. It was a specific intent misdemeanor crime irrespective of whether it entailed an attempt to commit a felony or a misdemeanor. Thus, at common law, though we might have a substantive murder crime based on the malice aforethought defined either as an intent to kill, depraved heart, intent to inflict grievous bodily injury short of death, or felony murder, we can have an attempted common law murder only when the mens rea is intent to kill. Similarly, in rape the mens rea of attempted rape would be intent to force intercourse from the victim without her consent, and in cases of robbery the intent to take property from the victim by means of force or threat of force. At common law, one might ask, "Did the actor specifically intend to do an act which if successful would be a substantive crime?" Also, even if the actor has the necessary specific intent, one must still look at what he did to determine if it is perpetration rather than mere preparation. It would be a logical impossibility to specifically intend a crime of recklessness or criminal negligence, e.g., involuntary manslaughter. To convict for attempt, there should probably be some unequivocal conduct on the part of the suspect. There is at least one common law felony that smacks of attempt. Burglary, which involves the unauthorized entry into the dwelling house of another at night with intent to commit a felony, has aspects of an incomplete crime since the burglary occurs irrespective of whether the target felony offense is committed. If the intended offense, e.g., theft, rape, robbery, murder, is not accomplished, doesn't the burglary offense look a bit like the attempt to commit the felony that was the objective of the burglary? Re merger of the attempt and the substantive offense under modern criminal law, the early common law rule was logical and is still followed - the attempt merges into the substantive offense. Hence, one cannot of be convicted of both the attempt to commit the target offense and the target offense. At common law, one could not even be charged, much less convicted, with attempt to commit the target crime if the facts showed that the target crime was completed.
- The Model Penal Code approach gives you three different alternative definitions of purposeful conduct that will constitute an attempt. We might view each of these MPC approaches is a way of separating mere preparation from a criminal attempt. In each of the three instances mentioned, the mens rea (culpable mental state) of the person attempting the offense is the mens rea (culpability) required for commission of the target offense. First, Section 5.01(1)(a) MPC, a so-called objective view, applies to offenses where the actor purposefully engages in conduct that would constitute the crime if the attendant circumstances were as he believes then to be. Some people refer to this MPC definition as the "proximity to danger test"; in these cases, since the actor's conduct is either completed or very near to completion, it is hard for the actor to come much more dangerously close to committing the target offense than s/he did; this sort of conduct includes the bungled attempt where the only reason the target offense is not committed is because the actor bungled the job, e.g., one who shoots at another and because of poor aim or faulty weaponry misses or one who plants a faulty bomb in an enemy's car or one who shoots pillows on a bed believing that it is a sleeping person; in the examples, the conduct is complete but, because of the bad aim, the faulty detonator, or the fortuitous absence of the sleeper, the target is not achieved and sometimes no tangible harm is done. In other instances, the target and the wrongdoer are in close physical proximity to one another. This first type pf attempt reflects an objectivist view that visualizes the harm of attempt as it relates to the proximity of the actor's dangerous conduct to the target, i.e., coming very close to committing an offense or doing it but not achieving the target because of fortuity. The "proximity to danger" and "bungler" situations are regarded everywhere as a sufficient actus reus for attempt. Second, Section 5.01(b) MPC, a so-called objective view, applies to result oriented offenses where the accused does or omits to do anything with the purpose of causing or the belief that it will cause such result without further conduct on his part. Some refer to this approach to attempt as the "last proximate cause test." In these result oriented attempts, the actor's conduct is sufficient to set up a chain of events that , once put in motion, would be expected to cause the criminal result but may depend on external or extrinsic circumstances to achieve the target crime, e.g., mailing a package containing a mail bomb to a target where the mail bomb has to go through numerous handling facilities before reaching the target. Here, an actor, who is often a long way from the site of the intended result, has done all that s/he intends to do to accomplish the crime, i.e., his conduct is completed, but the conduct of others, e.g, unwitting mail sorters and deliverers, is necessary for the target offense to be achieved. Engaging in commission of the last proximate act is regarded as sufficient actus reus for attempt in virtually all jurisdictions. Finally, under Section 5.01(1)(c) MPC so-called subjective view, an attempt can occur if the actor "purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime." The substantial step definition of attempt can involve interrupted actions of the accused. This approach is broader than the former two because it measures conduct from the perspective of what has already been done toward completion of the crime rather than what remains to be done. In other words, the focus is on how far the actor has come from purpose to go forward with the target crime rather than how close the actor is in time and space to achieving the target. If the conduct of the actor constitutes a "substantial step" toward commission of the target crime sufficient to indicate a purpose to complete the target crime, it will be considered a criminal attempt. Under Section 5.01(2) MPC, conduct shall not be held to constitute a substantial step under Section 5.01(1)(c) MPC unless it is "strongly corroborative" of the actor's criminal purpose. Section 5.01(2) MPC provides a laundry list of conduct which if strongly corroborative of the actor's criminal purpose shall not be held insufficient as a matter of law, i.e., the trial court will let the case go to the jury to decide if there is an attempt if one of the listed factors is present. Notice that one of those modes of potentially corroborative conduct, Section 5.01(2)(g) MPC, is "soliciting an innocent agent to engage in conduct constituting an element of the crime." The potential problem with the substantial step test is - How do we determine if the evidence is strongly corroborative of the actor's criminal purpose to commit the target offense? How far has the actor gone? Is it far enough to confirm the actor's willingness to carry out his intent? Does the actor's conduct reflect the criminal intent? Re merger of the attempt and the substantive offense, the accused cannot be convicted of both the target offense and an attempt to commit it. They merge; however, it is not a defense to an attempt conviction that the proof shows that the target crime was committed or that the accused was charged with the completed target crime rather than the attempt.
- As to the Texas Penal Code, look at the general attempt statute, Section 15.01(a) TPC, which defines attempt as "a person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Note that Texas general attempt is defined in terms of conduct going "beyond mere preparation" and which limits the attempt crimes to those that the actor has the specific intent to commit. The TPC furnishes no guidance as to what mere preparation is. The "tends to but fails to effect the commission" language may suggest that the Texas definition of attempt is measured by how much remains to be done. Please be aware that the penal code proposed by the State Bar of Texas to the Texas Legislature contained a "substantial step" definition, but the Texas Legislature, consistent with its tendency to maim proposed codes, did not include it in the Penal Code it enacted in 1974. It is clear that the actor must act with specific intent to commit the target offense. Hence, for example, at attempted murder would require proof of intent to kill; proof of intent to inflict serious bodily injury that might cause death, though sufficient for a murder conviction if it did cause death, is not sufficient to support an attempted murder charge. the reason being that the attempt definition requires specific intent to commit the offense, i.e., to murder. See Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1982). One might wonder whether it would be possible to have an actionable attempt where the mens rea of the target crime is recklessness or criminal negligence. If not, then there would be no such crime as attempted reckless manslaughter. An attempt to achieve a result by commission of a reckless act or a negligent act would seem to require proof that an actor intended to perpetrate an unintended act, e.g., intended to be reckless or negligent, a logical impossibility. The Texas cases bear this out. See Gonzalez v. State, 532 S.W.2d 343 (Tex. Crim.App. 1976) holding that attempted manslaughter is not a crime because one cannot have the specific intent to cause a crime recklessly. Presumably the same would be true with attempted criminally negligent homicide. Notice that the general attempt statute applies to all offense, whether felony or misdemeanor, except that there can never be an attempt to commit a Class C misdemeanor because there is no statutory punishment provided for such. Although common law prevented conviction for the attempt crime when the facts showed the target offense was committed, Texas law, under the modern rule followed by most jurisdictions, allows one to be convicted of the attempt rather than the target crime, even though the evidence shows the target crime was completed. See Section 15.01(c) TPC. As to merger of attempt with the substantive offense, the TPC is silent; however, it is safe to assume that the attempt would merge with the substantive offense as it does under the C/L and the MPC. So one could not be convicted of both the attempt to commit the substantive offense and the substantive offense itself.
Distinguishing the End of Preparation from the Beginning of Perpetration: Attempt at common law requires "an act beyond mere preparation." [Note:The Texas' Section 15.01(a) TPC definition of attempt requires, in addition, that the act be one that tends but fails to effect the commission of the offense intended.] What is mere preparation? Where does mere preparation stop and perpetration of an attempt start? Does mere preparation consist in arranging the means for the commission of the offense, and does the attempt begin with direct movement toward the target offense. Does the seriousness of the target crime have any effect on when mere preparation turns to the beginning of perpetration? Should the authorities be able to step in to arrest for attempt sooner when the target is a serious crime, e.g., an act of terrorism threatening a large populace? Let's consider the law of attempt in light of a hypothetical situation. Suppose that D decides to murder V and buys a pistol and bullets, then goes home and loads the pistol, and then goes out looking or for V at the place where D thinks V is presently located. How would the traditional common law view this scenario? Common law generally viewed this course of conduct as mere preparation. Even if D writes out his plan and tells others of what he intends to do and even if the police have watched him do each of these things, D's conduct might still be viewed at common law as mere preparation. Only when D started for V did the traditional common law begin to ask whether mere preparation for the crime had ended and perpetration had begun. Once D starts for the target, it may matter how close the target is. If the target is a great distance away, common law typically viewed it as still being mere preparation, but as D neared the target and the zone of danger, the perpetration was viewed as beginning. Attempt in Cases Where the Target Offense Was Committed: Is failure to commit the target offense an indispensable element of criminal attempt. This was the common law approach, but it is not the approach taken by the MPC or the TPC See Section 15.01(c) TPC which states," It is no defense to prosecution for criminal attempt that the offense attempted was actually committed."
Merger in Attempt Cases: If the accused (D) successfully commits the substantive target crime, the law does not permit D to also be punished for the crime of attempt to commit the target crime. The attempt to commit the substantive target crime is considered to merge into the substantive crime that is its object. The purpose is to prevent multiple conviction and/or punishment for both the attempt to commit the target offense and the successful achievement of the target offense. The merger concept applies to a continuing course of conduct. It does not apply to multiple attempts. For example, if unsuccessfully D attempts to poison V to death in one year and five years later tries successfully to kill V by shooting him to death, the attempted murder by poisoning does not merge with the murder by shooting.
Renunciation of Criminal Attempt: [Note: We are only considering the effect of renunciation (Some may call it "abandonment.") on liability for the inchoate attempt offense and not the effect of withdrawal or abandonment of a party to a crime on that party's liability for the commission of the substantive target offense. These are two totally different issues.] The potential issue of renunciation arises in attempt cases when the suspect, who has gone far enough to be guilty under the prevailing definition of attempt, voluntarily renunciates his criminal objective. The first legal issue is whether voluntary renunciation should be a defense that excuses the actor.
- At common law, if the actor loses his nerve and abandons the effort, there is no attempt if the renunciation occurs while the actor is in the mere preparation stage of conduct. However, if the actor crosses over the line into the perpetration stage, the actor's complete and voluntary renunciation is not a defense to the attempt crime. The common law does not recognize renunciation.
- Unlike common law both the Model Penal Code, Section 5.01(4), and the Texas Penal Code, Section 15.04, do recognize voluntary renunciation in narrow circumstances. In both, it is an affirmative defense that the actor voluntarily renunciated (abandoned) his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The MPC states that the renunciation of criminal purpose or intent is not voluntary if it is motivated, in whole or part, by circumstances not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. The MPC also states that renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Voluntary renunciation of one party to an attempt does not affect the liability of an accomplice who did not join in the renunciation. Notice that the renunciation defense is never available in situations where the target crime is achieved. In other words, the target crime must be prevented if renunciation is even to be considered. Section 15.04(a) TPC makes voluntary renunciation of the attempt an affirmative defense (The accused has the burden of production and the burden of persuasion by a preponderance of the evidence.) Like the MPC the renunciation must be voluntary and complete.
Impossibility of Commission of Target Crime as Defense to Attempt: The issue of impossibility comes into potential play when a defendant desires to commit a crime, but for reasons beyond his/her control, it is impossible to commit the target offense. Impossible attempts raise a couple of issues. First, how do we distinguish between a factually impossible attempt and a legally impossible attempt? Second, should either or both types of criminal attempts, i.e., factual or legal impossibility, be punished? The distinction between factual and legal impossibility is not always an easy call, and, in light of the modern trend to recognize neither as a defense to liability for criminal attempt, there may be little valid reason for trying to distinguish between the two. One conceivable way of describing the attempt that is factually impossible is that it applies to situations where the actor has done everything that he can do and still cannot complete the crime, i.e., the classic example is the pickpocket who picks an empty pocket and, ergo, cannot steal. In such cases, an extraneous physical or factual circumstance unknown to the actor or beyond his control prevents commission of the intended crime, e.g., the would be killer shoots into a bed intending to kill a sleeping victim but only hits pillows because the intended victim had stuffed pillows under the covers to make it look like he was in the bed. An attempt might be said to be legally impossible
- True Legal Impossibility: The common law, the Model Penal Code and Texas, indeed every jurisdiction, will certainly recognize so-called true legal impossibility (Dressler calls it "pure") in attempt cases when it is simply not a crime to do what the defendant intended to do. In other words, an intent to commit an act which is not characterized as a crime by the laws of the subject jurisdiction can not be the basis of a criminal charge and conviction even though the actor believes or misapprehends the intended act to be criminalized by the penal laws. For example, if a fisherman believes he is committing an offense by possessing over five perch when in fact there is no limit on the number of perch one may catch, it is legally impossible to convict the fisherman of possessing more than five perch. The fisherman's conduct would be perfectly legal despite the fact that he believes and intends to possess more perch that he is entitled to possess. Since the conduct would be perfectly legal, the fisherman could not be held accountable for attempting to violate a law that did not exist. Again, I believe Professor Dressler in his UCL book calls this "pure legal impossibility."
- Quasi-Legal Impossibility: Impossibility of a successful attempt may occur when the actor lacks legal capacity to do the crime or where the act is one which if completed as the actor contemplates it to be completed would not be a crime. The common law recognized legal impossibility but not factual impossibility as a defense to attempt crimes. However, cases sometimes applied the concept of legal impossibility to situations that went well beyond true legal impossibility as described above. In so doing, it lead us into a search for the difference between so-called legal vs factual impossibility. The lines may be blurry. One recurring situation is that of attempt to receive stolen property that in fact is not stolen, a common occurrence in cases where undercover police try to sting corrupt pawnshop owners by offering to sell merchandise that they falsely represent as stolen. The traditional common law view was that it was legally impossible to attempt to receive property that was not stolen. The theory was that there was no attempted receiving stolen property because the only element present was a mistaken intent to receive a stolen object that wasn't stolen; thus, there was nothing wrongful in the transaction. Dressler refers to such situations as "hybrid" impossibility.The contemporary view is that there would be a criminal attempt to receive stolen property when one views the situation from the defendant's perspective. Here are a few situations that require one to sort out the difference between legal and factual impossibility: (1) a pickpocket reaches into an empty pocket - the classic example of factual impossibility. See People v. Moran, 25 N.E.412 (NY 1890); (2) a would-be killer shoots into V's bedroom at a shape he thinks is V, but it turns out to be a pillow and V is alive but elsewhere - seemingly factual impossibility. See State v. Mitchell, 71 S.W. 175 (MO 1902); (3) Same facts as (2) above, except the victim is in bed but is already dead from an earlier heart attack See People v. Dlugash, 363 N.E.1155 (NY 1977) (1); (4) a hunter, knowing that it's out of season, shoots at what he thinks is a live deer, but which is really a dummy put there by a game warden. See State v. Guffey, 262 S.W.2d 152 (MO 1953) and State v. Walsh, 870 P.2d 974 (1994); (5) a would-be bribe giver offers a bribe to a person he thinks is a juror but who isn't See State v. Taylor, 133 S.W.2d 336 (MO 1939) - an example of Dressler's "hybrid" legal impossibility ; (6) a voodoo believer sticks pins in a voodoo doll likeness of V, believing it will kill V, but V doesn't die - an inherent impossibility; (7) a would-be receiver of stolen property offers money for property he believes is stolen, but which wasn't See Booth v. State, 398 P.2d 863 (OK 1964) another example of Dressler's "hybrid" legal impossibility; (8) D, thinking he is is seventeen but actually being eighteen, registers to vote by claiming he is eighteen; (9) a boy of twelve, presumed by the law to be legally incapable of of rape, forcibly has intercourse with an adult woman who does not consent; (10) a lawyer to attempts of suborn perjury by getting a witness to lie but because the testimony is immaterial the conduct is not perjury; (10) a would-be killer points a gun believed to be loaded at V's head and pulls the trigger; (11) an abortionist performs an abortion of a woman not pregnant; (12) a would-be rapist has intercourse with a woman he believes is not consenting, but she is. Although the Texas Penal Code does not inform us of the effect of legal impossibility on liability for the inchoate crimes, we do know from case law that factual impossibility is not a defense. See Chen v. State, 42 S.W.3d 926 (Tex. Crim App 2001). See also Wallace v. State, 679 S.W.2d 1 (Tex. Crim App 1983) and Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App 1984).. In Lawhorn v. State, 898 S.W.2d 886 (Tex. Crim App. 1995) case law adopted the common law defense of legal impossibility. Texas has a specific provision in its general theft crime, Section 31.03 TPC, that allows a substantive theft conviction in circumstances where police use non-stolen property to set up a sting to capture would-be receivers who are willing to buy property that they believe is stolen. The Model Penal Code, Section 5.01(1)(a), appears to abandon the differences between factual and legal impossibility and says a defendant will be liable for a criminal attempt when the means used by the defendant and the surrounding circumstances, as viewed by the defendant himself, make such crime apparently possible. There is a narrow escape provision under Section 5.05(2) MPC that allows the court to dismiss the prosecution in case of inherent unlikelihood of a criminal outcome, e.g., a defendant who employs voodoo incantations with the hope of causing death to another or, as Professor Dressler says, a chap who tries to sink a battleship by shooting at it with a pop gun. Note also that the MPC in Section 223.6 defines the offense of receiving stolen property to cover either knowledge or belief that the property is stolen.
- Factual Impossibility: Factual impossibility has not to my knowledge ever been recognized as a defense to an attempt charge by any American court. The common law did not consider factual impossibility as a defense to attempt. Thus, one would be liable for attempted theft when, with intent to steal another's wallet, he places his hand in the other's pocket only to find it empty. The MPC does not recognize factual impossibility as a defense to attempt, nor does Texas.
Similarities Between Assault and Attempt: The substantive common law crime of assault (see Silver Bullets VI) might be the the germinal form of attempt in the sense that it was an unlawful attempt, coupled with the present ability, to commit a battery on the person of another. An assault, in the sense of an attempted battery, appears to require greater proximity to the victim than a general inchoate attempt to commit an offense. Conduct that doesn't amount to aggravated assault because it doesn't meet the proximity requirement may be covered by the general attempt concept when the target crime is murder, robbery, rape, etc. and your jurisdiction has a generous definition of attempt, e.g., substantial step.
Policy Issues Surrounding Solicitation - The basic policy question re solicitation is whether inciting or soliciting a person to commit a crime should be an an offense. What is the purpose of making solicitation a crime? (1), (2) The rationale seems to be that it is useful to punish one as a danger to society for his constant determined effort to activate another to commit a crime. Allowing police to arrest a dangerous person before he has inflicted any serious damage may be considered as a good thing, perhaps, even more in the anticipated age of international terrorism. On the other hand, some might argue that the preparatory crimes of solicitation and conspiracy offer opportunity for government overreaching if carried to their extremes. Though normally the First Amendment does not act as a bar against prosecution and conviction for solicitation to commit a crime, solicitation statutes, because they focus on words, can bisect or cut across the First Amendment right of free speech in ways that require delicate balancing. Any time society chooses to criminalize words as it does with the criminal solicitation we should ask whether there are free speech implications. See Brandenburg v. Ohio, 395 U.S. 444 (1969). See also People v. Rubin, 158 Cal. Rptr. 488 (Cal. 2nd Dist. 1979) for an interesting case indicating that what might otherwise be a criminal solicitation of murder) would be protected free speech if the words posed no clear and present danger. There are other questions that must be fleshed out in deciding what we mean by solicitation, e.g., does the person being solicited have to know that s/he is being solicited, does the offense occur when the solicitor asks "Do it for me" and/or "Do it with me," does the person being solicited have to agree to the crime being solicited, does the person being solicited have to attempt the solicited offense, etc. Should it be a crime only to solicit serious felonies or should solicitation of crime be criminalized generally?
Defining Solicitation - Solicitation is the latest (recognized by the English common law in 1801) and the least of the common law inchoate offenses. It is typically a crime of words that entice, incite, order, advise or otherwise encourage another person to commit a crime. No overt act in furtherance of the solicitation is required. In some ways, solicitation is related to the formative stages of a conspiracy. One way it It differs from conspiracy is that no agreement is necessary by the person being solicited. One person can be guilty of solicitation. The crime solicited does not need to be committed.
- The gist of common law solicitation is incitement, asking someone else to commit an offense with the intent that that person (the doer) commit the offense as a first degree principal. At common law, solicitation included these elements: (1) the request, enticement, urging, or encouragement by the soliciting person, (2) of another person, (3) to commit a crime (at English common law, a felony or a misdemeanor that would breach the peace, obstruct justice or otherwise be injurious to public welfare; only a felony at American common law) as the actual doer, e.g., first degree principal, and (4) with intent that the solicited crime be committed. It was a misdemeanor. At common law, the defendant is not guilty of solicitation if he asks another person to assist him in committing the target crime. When you encounter a "do it with me" scenario, it isn't common law solicitation. Common law required an accomplice-perpetrator relationship. To be guilty, the solicitor must ask the person solicited to commit the offense himself. i.e., a "do it for me" scenario. Also, at common law the words of the solicitor must be successfully communicated to the person solicited. Re merger, solicitation at common law merges with the substantive crime and the conspiracy crime. Thus, under modern common law, a defendant cannot be convicted of both solicitation and the completed crime (or conspiracy). Also, solicitation merges with attempt, as where D1 attempts to murder V at D2's request but fails, D2 is liable as a party to the attempt under complicity theory and cannot be convicted of both the solicitation of D1 and the attempt crime committed by D1 in compliance with D2's solicitation.
- Model Penal Code solicitation is expansively defined in Section 5.02(1) MPC as follows: "A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or would establish his complicity in its commission or attempted commission." Its essential elements are as follows: (1) with the purpose of promoting or facilitating a crime, (2) the solicitor commands, encourages, or requests another person to engage in specific conduct, (3) which specific conduct would be a crime, an attempt, or would amount to complicity. Note that the target offense can be a felony or misdemeanor. The MPC criminalizes solicitation to commit an attempt. It applies even when the solicitor asks another person to aid the solicitor in committing the target crime. So it applies to both the "Do it for me" and the "Do it with me" form of solicitation. For punishment purposes, MPC solicitation, like attempt and conspiracy, is generally graded as a crime of the same degree as the most serious offense which is solicited (or in the case of attempt,"attempted" or conspiracy, "which is the object of the conspiracy"). Thus, the applicable punishment range is the same fore the solicitation of a crime as it is for the crime solicited, except that soliciting [a capital crime or] a first degree felony is punishable as a felony in the second degree. See Section 5.05 (1) MPC. The words of the solicitor do not have to be successfully communicated to the solicitee. Note that solicitation is generally considered insufficient by itself to constitute an attempt. The MPC does suggest, however, with regard to criminal attempt that "soliciting an innocent agent to engage in conduct constituting an element of the crime" shall not be insufficient as a matter of law to constitute a substantial step, if strongly corroborative of the actor's purpose. Note also that Section 5.02(3) MPC provides an affirmative renunciation defense for solicitation if the actor, after soliciting another person to commit a crime, persuades him not to do so or otherwise prevents the commission of the crime,under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.
- The Texas Penal Code, Section 15.03(a), the general solicitation statute, defines solicitation as requesting ,commanding, or attempting to induce another to engage in the target crime of capital murder or a first degree felony with intent that such crime be committed. The statute applies even when the defendant asks another to aid the defendant in committing the target crime. If the solicited target crime actually occurs or if the individual attempts the crime, the soliciting person is treated as a complicitor. The law requires the evidence to be strongly corroborative of both the solicitation and the actor's intent that the person act on the solicitation. One cannot be convicted under the general solicitation statute on the uncorroborated testimony of the person solicited. See Richardson v. State, 700 S.W.2d 591 (Tex. Crim. App. 1985); Sheffield v. State, 847 S.W.2d 251 (Tex. App - Tyler - 1992). For an example of solicitation of capital murder, see Schwenk v. State, 733 S.W.2d 142 (Tex. Crim. App. 1987); Saunders v. State, 572 S.W.2d 944 (Tex. Crim. App. 1978). Notice that there may be special solicitation statutes that cover specific types of solicitation. For example, Section 15.031 TPC creates the offense of criminal solicitation of a minor, an individual younger than seventeen, where a person, with intent that certain named felonies be committed, requests, commands, or attempts to induce a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believed the to be, would constitute one of the named felonies, or make the minor a party to the commission of such felony. The person may not be convicted of this crime on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor's intent that the minor act on the solicitation. Solicitation is punished at one level lower than the target offense. See Section 15.03 (d) TPC. Re merger of the conspiracy crime and the substantive crime, Texas law does not expressly state that one can or cannot be convicted of and punished for both the conspiracy to commit a substantive offense and the substantive offense itself. I know of no case decision on the issue. If I had to guess, I would speculate that the common law rule of no merger would apply and that conviction and separate punishment for both the conspiracy and the target offense would be allowed, particularly in light of the decidedly pro-prosecution bent of the current Texas Court of Criminal Appeals.
Renunciation of Criminal Solicitation - At common law, renunciation was not a defense to solicitation. Complete and voluntary renunciation of purpose in solicitation is recognized in Section 5.02(3) MPC. The object crime must be prevented. Section 15.04(b) TPC recognizes complete and voluntary renunciation as an affirmative defense and, like the MPC, requires one to prevent the commission of the offense solicited.
Alone we can do so little. together we can do so much.
There is strength in the union of very sorry men.
"[C]conspiracy, that darling of the modern prosecutor's nursery."
Unlike the inchoate offense of attempt and the theory of complicity liability for the conduct of another, conspiracy can be visualized as an independent crime based upon conduct involving an agreement between two or more persons to engage in an unlawful objective, e.g. at common law - an unlawful act or a lawful act by unlawful means, under the MPC - a target crime, and under the TPC - a target felony. The offense is typically described not merely as conspiracy but conspiracy to commit (name the target offense). [Note: Remember this when answering conspiracy questions on an exam.] Criminal conspiracy (1), (2) (3), (4) is an inchoate offense in the sense that it allows the authorities to nip crime in the bud. Also, unlike attempt, conspiracy liability can depend on the agreement or another and, in some jurisdictions, the commission of an overt act in furtherance of the conspiratorial purpose In the sense that it involves more than one person, conspiracy offenses are designed to protect society from the danger of organized criminal activity by groups. (1 - organized crime summarized) Looking back for a brief glimpse of the history of conspiracy in the common law (1), we discover that there was no conspiracy crime in early common law. It wasn't until 1611 that the English judges allowed the prosecution of an agreement to commit an offense. In the Poulterer's Case, the English court held that an agreement to falsely accuse an innocent party of a crime could be punished even though the objective of the agreement was not achieved. In 1832, the English case of Rex v. Jones broadened the definition of conspiracy so that "conspiracy could have as its purpose either to do an unlawful act or a lawful act by unlawful means."
Policy Issues - The purpose of the crime of conspiracy like other inchoate offenses is to allow society through the organized government to intervene against persons who have sufficiently displayed their proclivity or propensity to engage in criminality. The conspiracy crime also serves as means for proceeding against those who are inclined to band together to engage in group criminality. Indeed, the willingness to agree with others to engage in crime is a key element of conspiracy. The danger in having conspiracy to commit a target crime as an offense is that it is often a crime of words. For that reason, some jurisdictions may require the existence of an overt act in furtherance of the conspiratorial purpose as a further manifestation that the agreement is real.
Defining Conspiracy -
- At common law, conspiracy consists of an agreement between two or more persons to do either an unlawful act or a lawful act by unlawful means. No overt act in furtherance of the conspiratorial purpose is required. Conspiracy is a misdemeanor at common law. At common law, a tacit agreement could be inferred from conduct by the conspirators which is sufficient to show agreement. The common law crime of criminal conspiracy, like attempt and solicitation, is a specific intent offense. There could be no conspiracy to commit reckless or negligent target offenses such as involuntary manslaughter. Common law conspiracies are bilateral. In other words, an actual agreement is required. If there were only two parties to the agreement and one was feigning agreement, perhaps because s/he was a law enforcement agent, the common law said there was no conspiracy because there was no agreement. In other words, the common law conspiracy required "two to tango." Concerning the duration of a conspiracy for the possibility of late joiners, the conspiracy was said to end when its object was completed. Unless it is part of the agreement, acts of concealment subsequent to the commission of the target crime are not deemed to be part of the conspiracy. Also, under the common law, if all the other members of the conspiracy have been acquitted or were feigning agreement, i.e., had no intention to go through with the agreement, the remaining defendant could not be convicted of conspiracy. [Hint: In analyzing a problem for a bilateral common law conspiracy, always look for two guilty minds. Be alert for feigning conspirators. Remember also that under the traditional common law rule, if all other alleged coconspirators with whom the defendant is charged are acquitted and found not guilty by a court judgment, the remaining defendant cannot be convicted.] Re merger of conspiracy and the target substantive offense, the two merged at early common law. As time passed, the common law changed to permit convictions and dual punishment for the conspiracy and the substantive offense. [Students in the criminal law course should use this modern anti-merger of conspiracy and substantive offense rule of modern common law on the criminal law exam.] [Note: While the modern common law of today allows one to be convicted of conspiracy and the substantive offense, a growing number of states, no doubt influenced by the MPC, disagree; they preclude cumulative punishment for the conspiracy and target offense, though they generally do permit cumulative punishment when the conspiracy contemplated a number of offenses.]
- Conspiracy is defined in Section 5.03 of the Model Penal Code. A person is guilty of conspiracy with another person to commit a crime (Note that, unlike Texas, the target crime of the MPC conspiracy may be a felony or misdemeanor.) if with the purpose of promoting or facilitating its commission he (1) agrees with such other person or persons that they or one of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime or (2) agrees to aid such person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. An overt act by one or more of the conspirators is required in MPC conspiracies to commit any crime except first and second degree felonies. Thus, whether an overt act will be required under the Model Penal Code depends on the classification of the target offense. If the target offense is a first or second degree felony, no overt act is required. The MPC, Section 5.04(1)(a)& (b) takes a unilateral approach to conspiracy, requiring only that the accused agree and believe that s/he and another conspirator have agreed, based on the notion that the conspiracy law should be framed in terms of conduct that suffices to establish the liability of any given actor rather than the conduct of the group of which s/he is charged to be a part. The principal effect of the unilateral approach is that the disposition of coconspirators will not necessarily determine whether or not the actor will be liable. For example, acquittal of all the other conspirators does not bar the defendant's conviction for conspiracy. Also, for purposes of the statute of limitations, the duration of a conspiracy is defined in Section 5.03(7) MPC which indicates that the conspiracy terminates when the crime or crimes that are the object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired. Section 5.03(7) MPC presumes an abandonment of the agreement if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the period of limitations. If one conspirator abandons the agreement, the conspiracy terminates as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and his participation therein. Re the issue of merger, Section 1.07(1)(b) represents the modern trend when it makes it clear that the target substantive offense and the conspiracy to commit that target offense merge insofar as allowing conviction and punishment for both; the MPC does allow prosecution for both; it would also allow separate conviction and punishment for conspiracy where the object went beyond the substantive offense to encompass a continuing course of conduct. See Section 1.07(e) MPC.
- Section 15.02 of the Texas Penal Code, the general conspiracy statute, defines conspiracy as an agreement between the accused and one or more persons to commit a felony, coupled with and overt act by one or more of the conspirators in furtherance of the conspiratorial purpose. Thus, unlike the MPC, a criminal conspiracy does not exist unless the target offense is a felony; a state jail felony is a felony. See Section 1.07(23) TPC. Texas takes a unilateral approach with regard to cases where the person with whom the defendant conspired is not criminally responsible, e.g., a child, an insane person, a person under duress etc, or has immunity from prosecution or conviction. Another situation that can arise is the case of the feigning coconspirator. Texas seems to deviate from the unilateral rule in one instance. The code proposed by the State Bar in 1970 contained a provision that would have made one liable in the case where all but one conspirator was feigning agreement of feigned conspiracy; however, the Texas Legislature in 1974 performed an orchiectomy (surgery) without anesthetic on Section 15.02 (c) (2) of the statute and maimed it in the following manner: "(c) It is no defense to prosecution for criminal conspiracy that: ... (2) one or more of the conspirators has been acquitted, so long as two or more conspirators have not been acquitted." The italicized portion was added by the Legislature. Ergo, in Texas if all but one of the coconspirators are acquitted, it appears that the last coconspirator cannot be convicted. In this situation, it appears that the former bilateral law was retained in Texas. In Williams v. State, 646 S.W.2d 221 (Tex. Crim. App. 1983), a superficial and bare bones opinion by Judge McCormick on an important issue, a three-judge panel held that while each coconspirator's culpability is to be determined individually, there still must be an actual meeting-of-the-minds agreement between at least two conspirators. This means that if all parties to the alleged conspiratorial agreement but one are feigning agreement to commit the felony target offense, there can be no conspiracy in Texas. Note also that Texas punishes criminal conspiracy at one category lower, down to a Class A misdemeanor for conspiracy to commit a state-jail felony, than the most serious felony target crime. See Section 15.02(d) TPC. The TPC does not expressly state that one can be convicted of and punished for both the conspiracy to commit the target felony offense and the substantive felony. One might expect that the common law rule of no merger would apply. [Note, however, that if one is tried in one trial for all offenses arising out of the same criminal episode ,e.g.. conspiracy to commit the felony and the felony, the general rule is that the punishment for each shall run concurrently. See Sections 3.01, 3.02, 3.03 TPC. However, if the defense asks to have the offenses severe for trial, the severance is mandatory and the punishment for each of the crimes, e.g., conspiracy and the target felony, may be cumulative (stacked). See Section 3.04 TPC.] Be aware also of the Texas Organized Crime laws in Chapter 71 TPC.
- Federal Conspiracy The federal general conspiracy crime is defined in 18 USC Section 371. An overt act in furtherance is expressly required; however, proof an overt act is not required in any federal conspiracy statute unless the statute expressly provides for such. See Whitfield v. United States, 543 U.S. 209 (2005), a case prosecuted under the drug conspiracy statute. The general federal felony conspiracy crime is bilateral. See United States v. Escobar DeBright, 742 F.2d 1196 (9th Cir. 1984). If the only person with whom the defendant conspires is a government agent who is feigning agreement, there is no conspiracy under Section 371. In other words, the bilateral conspiracy requirement of § 371 requires at least two actors who are actually agreeing to commit the target crime. If all but one of the parties to the agreement are feigning agreement, there is no Section 371 conspiracy. As a general rule, the conviction of only one defendant in a conspiracy will not be upheld where all the other alleged coconspirators have been acquitted; however, it is also generally held that when two or more defendants in a conspiracy have been lawfully convicted, the fact that additional defendants have been acquitted is immaterial. See United States v. Musgrave, 483 F.2d 327 (5th Cir. 1973) Also, be aware of the federal law regarding Criminal Street Gangs (18 USC Section 521) passed in 1994.
Renunciation as a Defense to Criminal Conspiracy - At common law, renunciation was not a defense to conspiracy. Complete and voluntary renunciation of conspiracy is recognized in Section 5.03(6) MPC. Note the requirement that the object crime must be prevented. Renunciation of the conspiracy crime is recognized by Section 15.04(b) TPC which makes renunciation an affirmative defense when one voluntarily and completely renunciates and prevents commission of the object offense. See also Section 71.05 TPC making renunciation an affirmative defense to organized criminal activity.[ Note that in federal prosecutions of conspiracy, renunciation of criminal purpose appears to exist as a matter of federal common law; it requires an affirmative act by the actor to defeat the conspiratorial purpose. See Hyde v. United States, 225 U.S. 347 (1912); otherwise, mere withdrawal does not relieve the accused of liability for the conspiracy. See Levine v. United States, 383 U.S. 265 (1966). Withdrawal Before Target Offense is Committed as a Barrier to Liability for Target Offense - A different issue, one that may be mistakenly confused with renunciation of the target inchoate offense, is the effect of voluntary withdrawal (some may call it "abandonment") from a conspiracy before its completion on one's liability for the completed target offense. Concerning the inchoate offense of conspiracy, renunciation is no defense. Of course, under Section 5.03 (6) MPC and 15.04 (b) TPC, renunciation of the target offense may be a defensive issue with regard to an individual's liability for the inchoate crime of conspiracy. But what if the target is hit and the conspiracy is successful? Is it possible for a coconspirator to bail out or withdraw from the conspiracy before the target is achieved and, hence, relieve her/himself of responsibility for the substantive target crime? Under the common law, withdrawal can be a defense to a subsequent substantive offense that is the target of the conspiracy. There are two different traditional ways under the general law to withdraw from or withdraw from liability for the substantive offense so as not to be liable for the target substantive offense, namely, (1) cease all activity in furtherance of the conspiracy to commit the target offense and notify the other coconspirators of one's intent to abandon so that they can consider doing likewise and (in some jurisdictions) nullify your contribution to the conspiracy,e.g., "Sorry group, but you cannot use my gun for the robbery," or (2) cease all activity in furtherance of the conspiracy and timely notify the police or make some effort, albeit unsuccessful, to prevent the commission of the planned substantive target offense. Note that these efforts at withdrawal may be sufficient to cut off liability for the target crime and other collateral crimes committed by accomplices under the natural and probable consequences rule of complicity and coconspirators under the Pinkerton Rule of complicity, but they may not be sufficient to prevent liability for the conspiracy because they don't necessarily stop the target offense from occurring. See the above for the discussion of renunciation as a defense to liability for the inchoate conspiracy. Connecting an Actor to a Conspiracy - What does it take to prove that a person joined up to a conspiracy? Agreement as an element of the conspiracy offense is not always easily determinable. Sometimes courts face situations involving some degree of evidentiary ambiguity as to an accused conspirator's awareness and understanding of the criminal agreement. The courts may be faced with deciding if there was an agreement and, if so, whether the accused was a party to it. In the joiner cases the issue is typically whether the government can prove that the accused knowingly joined the conspiracy, rather than whether the conspiracy existed. The case law reflects the view that a person who is involved with other persons who are engaged in a criminal combination does not have to do or say very much to be drawn in as coconspirator. Some cases say that when a conspiracy has been shown to exist, only slight evidence is needed to connect any particular individual to it. The case of United States v. Alvarez, 610 F.2d 1250 (5th Cir. en banc 1980) is a good example of rather amorphous circumstantial acts and declarations being held sufficient. See also United States v. Brown, 912 F.2d 1040 (9th Cir. 1990). Mere sympathy, knowledge, and/or approval of a conspiracy, as well as failure to inform authorities of its existence, are a not sufficient alone to make one a knowing participant in the conspiratorial agreement. The Late Joiner - Duration of the Conspiracy - The usual cases of conspiracy focus on more or less static organizational structures. But what happens if a new conspirator agrees to join an existing scheme? The hornbook answer is that when a conspirator agrees to join an ongoing conspiracy, he becomes liable for the conspiracy. Evidence of acts and statements previously made by other conspirators in furtherance of the conspiratorial objective become admissible against the late joiner. The issue of the late joiner typically comes up in the context of an extended conspiracy. The late joiner issue may require an answer to the question, "How long does a conspiracy last for purposes of entry into it?" Common law suggests that a conspiracy ends when its object is completed; acts of concealment subsequent to the commission of the object offense are not deemed to be part of the conspiracy.The length of a conspiracy is important for purposes of the statute of limitations. Limitations begins when the conspiracy ends. The Model Penal Code, Section 5.03 (7), suggests that the conspiracy terminates for purposes of the statute of limitations when the crime or crimes which are its object are committed or the agreement that they be committed is abandoned by the accused and those with whom he conspired; abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the period of limitation. In Texas, the traditional rule is that the conspiracy lasts until the criminal objective is achieved or abandoned, i.e., until everything is done that was contemplated by the conspirators. In Texas, the period of limitations for conspiracy is the same length as that for the substantive felony. See Art. 12.03 CCP. Wharton's Rule (1), (2), (3) - The common law Wharton's Rule regarding liability for conspiracy is as follows: " When to the idea of an offense plurality is logically necessary - conspiracy, which assumes that voluntary accession of a person to a crime of such nature that it is aggravated by a plurality of agents, cannot be maintained." The idea is that a criminal conspiracy conviction is not possible when the target offense is a substantive crimes such as bigamy, incest, fornication, adultery and dueling that by definition require two actors. Hence, if two actors are needed for the commission of the substantive offense, three conspirators are necessary for a conspiracy to commit it. The punishment for these substantive offenses that require two actors already factors in plurality, and, therefore, the argument goes, it is not appropriate to add a conspiracy penalty based on the rationale of group danger. So if A and B, each married to someone else, agree to rent a hotel room so they can spend the night engaging in sexual intercourse, they cannot be convicted of conspiracy to commit adultery, assuming that the jurisdiction recognizes adultery as a crime. UCL discusses the limitations and exceptions that courts have put on Wharton's Rule. For example, if the number of actual conspirators exceeds the number required to commit the substantive offense, the prosecution may charge the conspiracy crime. The Model Penal Code does not recognize Wharton's Rule as a defense to conspiracy. The Texas Penal Code and cases are silent on Wharton's Rule. The Legislatively Protected Party Rule - What if two persons agree to commit a substantive offense and one of the two is viewed as a person the offense is designed to protect. An example would be statutory rape or sexual assault of a child. Can the agreement of the underage child whom the statute is designed to protect be considered as a conspiratorial agreement? As a matter of policy, the law may decide that a participant in an offense is not a party (complicitor or coconspirator) if that person is a member of the class of persons that are protected by the offense, e.g., a victim, or if the crime by definition requires the involvement of several participant, only some of whom are made liable. A good example of this is Gebardi v. United States, 287 U.S. 112 (1932), a Mann Act interstate transportation of a person for illicit sex conspiracy prosecution where one of the two parties, i.e., the woman, could not be liable as coconspirator because she was a member of the class of persons that the Mann Act was designed to protect. Courtroom Admissibility of Acts and Declarations of All the Coconspirators - At the trial of conspirator, one of the consequences of being a part of a conspiracy is the rule of evidence that permits proof of the statements and acts of all the members of the conspiracy against all its members. Under Rule 801(d)(2)(E) of the Federal Rules of Evidence and Rule 801(e)(2)(E) of the Texas Rules of Evidence, the out-of-court statements of members of a conspiracy that are made in furtherance of the conspiracy and pending its completion are treated as non-hearsay and, hence, are admissible in evidence against all of the conspirators. Under traditional rules of evidence, the same result occurs but under the rubric of the admissibility of the acts and declarations (statements) of coconspirators being an exception to the rule that bars hearsay out-of-court statements offered for the truth of the matter stated therein. See Krulewitch v. United States, 336 U.S. 440 (1949) See also United States v. Cornett, 195 F.3d 776 (5th Cir. 1999) holding that that the statement must be made by a coconspirator during the course of the conspiracy and in furtherance of it; United States v. Hamilton, 689 F.2d 1262 (9th Cir. 1982) indicating that as long as the declarant intended the statement to further the conspiracy, it is unnecessary that it actually did so. The net effect of this evidentiary rule of exclusion or exception from hearsay is that a person who is part of a conspiracy may be faced with evidence of everything his coconspirators said and did in furtherance of the conspiratorial purpose during the life of the conspiracy. Other Considerations Re Conspiracy Prosecutions - Joinder of Conspirators: The principle that allows joinder of all conspirators in one trial offers obvious advantages to the prosecution. Time and resources are saved, discovery is limited, and the prosecution is allowed to show the whole picture. There are obvious disadvantages to the accused: the jury may become confused about the role the defendant played; it is hard for defense lawyers with different clients to work together when they can't present a unified front; and the jury may convict based on guilt by association. Severance of Coconspirators: Severance involves granting coconspirators separate trials from one another, e,g., in federal court, under Rule 14 Fed. R. Crim. Proc., severance is permitted in the trial court's discretion if the defendant or government is prejudiced by the joinder. In Texas, severance is governed by Art. 36.09 CCP. Venue: In multi-defendant conspiracies, there may be the opportunity to forum shop. For example, under Section 5.03(4) MPC a conspiracy prosecution may be charged in the jurisdiction where the agreement took place or in any jurisdiction where an overt act in furtherance was committed. In Texas, situs for the trial can be in the county where the agreement was formed or in the county where the conspiracy was agreed to be executed or in any county where an overt act was performed. See Section 1.04 TPC and Art. 13.13 CCP. Vagueness: The vagueness of conspiracy can be traced to the common law concept that defined conspiracy in such a way that it could encompass agreements to commit certain acts which were not themselves criminal. Early Entry By Law Enforcement: When compared with attempt, the definition of conspiracy allows the authorities to arrest and convict for conspiracy earlier in the preparatory process than is true of attempts. Cumulative Punishment: The modern common law permits conviction and punishment for both the conspiracy and the object offense. Model Penal Code Section 1.07(1)(b) as a general rule merges the conspiracy and substantive offense re cumulative punishment but does allow separate conviction and cumulative punishment where the object of the conspiracy encompasses a continuing course of conduct that goes beyond the substantive offense.
Accomplice, n. One associated with another in crime, having guilty knowledge and complicity,
as an attorney who defends a criminal, knowing him guilty.
The concept of complicity has been with us for a long time. In 43 B.C., the Latin writer Publilius Syrus said, "He who helps the guilty shares the crime." The issue surrounding complicity is the extent to which one person can be held responsible for conduct committed by another. It's a plain fact that many crime involve multiple participants. What happens, for example, when one person's deed is born in another person's thoughts. Often those who actually commit the offense have been assisted, aided, encouraged, directed, or solicited by others before, during and after the commission of the offense. Students of criminal law may have difficulty keeping straight the fact that complicity is not a substantive crime in itself but rather a doctrine that determines when one person will be vicariously liable for the act of another. There is no independent crime of being an accomplice or being an aider and abettor or being a coconspirator. For more information on complicity, see Robinson, Imputed Criminal Liability, 93 Yale L. J. 609 (1984); Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev. 323 (1985); Reed, Joint Participation in Criminal Activity, 60 J. Crim. L. 310 (1996).
One of the big issues is how much the aider and abettor of a crime must do to be liable as a complicitor for the conduct of another, e.g., what does it take to make one a partner in crime (particeps criminis). Is mere presence at the scene of a crime enough to make one a party to the commission? Another issue is whether the aid has to expended with the purpose or intent of promoting or assisting the offense rather than with mere awareness (knowledge) that ones conduct may aid the actor. Another issue is whether the aider and abettor has to actually deliver some assistance to the primary actor or whether the mere attempt to aid sufficient.
Complicity Liability for Crimes Other Than the Target Offense - Accomplice Liability vis a vis Liability Based on Membership in a Conspiracy - One of the most difficult aspects of complicity to grasp is the difference between (1) complicity (liability for the conduct of another) in other crimes based upon the fact that one is an accomplice to commission of a crime, i.e., accomplice liability and (2) complicity (liability for the conduct of another) based upon one's membership in in a conspiracy, i.e., co-conspirator liability.
Remember that an accomplice, e. g., in Texas, under Section 7.02(a)(2) TPC, the person who with intent to promote or assist commission of an offense, solicits, encourages, directs, aids, or attempts to aid another person to commit the offense, is different from a conspirator, e.g., the person who conspires to commit an offense by agreeing with another persons that they or one of them will commit the offense. The exact definition of an accomplice may differ according to the jurisdiction. For example, the MPC defines an accomplice of another person in commission of an offense in Section 2.06 (3) as one who with the purpose of promoting or facilitating the commission of an offense (i) solicits such other person to commit it, (ii) aid or agrees to aid or attempts to aid such other person in planning or committing it; or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. UCL tells us an accomplice is often defined as the person who intentionally aids the primary party to commit the offense, pointing out that there are typically two factors at work, i.e., the intent to assist the primary actor and the intent that the primary actor commit the offense. Professors LaFave and Scott described accomplice liability thusly: "It may generally be said that one is liable as an accomplice to the crime of another if he (a) gave assistance or encouragement or failed to perform a legal duty to prevent it (b) with the intent thereby to promote or facilitate commission of the crime." LaFave & Scott, Criminal Law, West ( 2nd ed. 1986).
Suppose you have a person who is an accomplice to a crime. At common law, and in many modern jurisdictions, that accomplice may be held liable for other crimes committed by the principal. This is done by applying a doctrine known an the natural and probable consequences rule. The rule says that the accomplice to a crime may be held liable not only liable for that crime under traditional accomplice liability complicity, but also the accomplice may be held liable for other crimes committed by the the principals so long as those other crimes are a natural and probable consequence of the crime the accomplice is aiding; the issue becomes whether the other crimes are reasonably foreseeable. See UCL, 6th edition, pp. 475 for a better understanding.
Pinkerton Liability: What about liability for the acts of based solely on membership in a conspiracy, a crime based not upon aiding or assisting but upon mere agreement? Of course, conspiracy to commit a target offense, on one hand is a crime, to-wit, an inchoate criminal offense. Yet, under the rule of United States v. Pinkerton, 328 U.S. 640 (1946), (1), the concept of being a member of a conspiracy in another sense is also a doctrine of complicity that can hold one conspirator liable for crimes other than the target crime of the conspiracy when those other crimes are committed by a fellow conspirator provided: (i) that such other crimes are committed in furtherance of the conspiratorial purpose during the pendency of the conspiracy and (2) that such other crimes are reasonably foreseeable as a consequence of the target crime that is the object of the conspiracy. Without the Pinkerton Rule, it is possible that one whose only act is agreeing to a conspiracy could be liable for the conspiracy but not liable under complicity theory for any crimes that are committed by the coconspirators. This assumes that the person who agreed never did anything in the nature of aiding and abetting that would make him/her an accomplice. In reality, most conspirators wind up doing something, e.g. aiding or assisting the doer, beside merely agreeing; that constitutes assistance that would also make him/her an accomplice. This also assumes that the jurisdiction's definition of an accomplice does not make one an aider and abettor based merely on the act of agreement to the conspiracy. For example, if an accomplice is defined as one who "acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense," one could rightfully say that merely agreeing to a conspiracy does not fit the definition of accomplice. Note that the MPC does not embrace coconspirator liability for other crimes, i.e, it rejects the Pinkerton Rule. Nor does it embrace accomplice liability for reasonably foreseeable other crimes committed by the principal to the crime aided or assisted; in other words, the MPC does not adopt the common law natural and probable consequences rule of accomplice liability Instead, the MPC sticks to traditional accomplice liability for the offense to which one was an accomplice. Parties to Felony Offenses at Common Law - In Standefer v.United States, 447 U.S. 10 (1980) Chief Justice Burger explained, "At common law, the subject of principals and accessories was riddled with 'intricate' distinctions. In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. By contrast, misdemeanor cases 'd[id] not admit of accessories either before or after the fact,' ; instead, all parties to a misdemeanor, whatever their roles, were principals. Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. Among them was one of special relevance to this case: the rule that an accessory could not be convicted without the prior conviction of the principal offender. Under this rule, the principal's flight, death, or acquittal barred prosecution of the accessory. And if the principal were pardoned or his conviction reversed on appeal, the accessory's conviction could not stand. In every way, an accessory follow[ed], like a shadow, his principal. This procedural bar applied only to the prosecution of accessories in felony cases. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. And in felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. Not surprisingly, considerable effort was expended in defining the categories - in determining, for instance, when a person was 'constructively present' so as to be a second-degree principal. In the process, justice all too frequently was defeated." The issue of the way the common law defines the different classes of parties to an offense (1) is one that influenced the manner of charging, venue (situs of the trial), the order of trial, the grade of offense for which each participant is liable, etc., under the common law. The following common law distinctions as to the different classes of parties to crime apply only to felonies, with the exception of treason in which all parties are treated as principals. By contrast, at common law, all participants in misdemeanors "before the fact" were equally guilty as principals, while "after the fact" assistance of a misdemeanor did not constitute complicitor criminal liability at all. The net effect at common law was that all parties to a misdemeanor, whatever their roles, were principals. Dressler's UCL 6th pp. 460-465 has a good discussion of the following four categories of common law parties into one of which a party to a felony had to fall at common law; see (1) for a discussion of accomplices. [Note: Re merger of parties - All American jurisdictions currently have abolished these traditional old common law distinctions between principals and accomplices before the fact, see Section 7.01(c) TPC, so that each party may be charged and convicted without concern for the following judge-made common law niceties. Common law accessories after the fact are now typically treated with a separate crime, e.g., hindering apprehension or prosecution or obstruction of justice.]
- Principal (Note: On the crim law exam, some law students erroneously spell this "principle." Don't make this mistake.) in the first degree (PFD) - This is the actor who actually commits the felony; s/he's the one who actively engages in the harmful conduct. I think of the principal in the first degree as the "doer." The PFD is not necessarily the brains or mastermind of the operation. In some instances the PFD may utilize an innocent instrumentality to commit the crime. The PFD could be tried where the felony occurred. There can, of course, be more than one PFD.
- Principal in the second degree (PSD) - This is the actor who is present at the scene of the crime and aid and abets the first degree principal, e.g., a lookout or a getaway car driver. The PSD is vicariously liable for the felony. There is no meaningful legal difference between the PFD and the PSD insofar as level of liability and order of trial. The PSD can be tried and convicted prior to the trial of the PFD or even after the PFD was tried and acquitted. The PSD could be tried where the felony occurred. The PSD could be convicted of a higher, lower or the same crime as the PFD. In short, there is no line of procedural dependency between the PFD and PSD.
- Accessory before the fact (ABF) - The ABF is one who is not present at the scene of the crime but who aids and abets the crime in some way prior to its commission and is not actually or constructively present when the crime is committed. The ABF can include a person who plans the crime or secures implements by which it can be committed. The ABF is vicariously liable for the felony. Notice that at common law the ABF could only be convicted if there was a guilty principal. Thus, the ABF could not be tried in advance of putting the PFD to trial, though they could be tried at the same time. Hence, to some extent the ABF's conviction was dependent upon the successful prosecution of the PFD. If, for example, the PFD fled the jurisdiction or died before his or her trial or was tried and acquitted, the ABF could avoid conviction. Note that the ABF could consent to be tried before the PFD. The ABF could not be convicted of any crime greater the PFD. Also, the ABF had to be tried in the situs where his/her act of aiding and abetting occurred.
- Accessory after the fact (AAF) - The AAF is the one who aids a felon after the crime, knowing the person to be liable for a felony. The AAF's aid is directed to hindering apprehension, prosecution, and/or punishment. The AAF is vicariously liable for the felony committed even though his/her aid came after the felony was committed. The AAF had to be tried in the situs where his/her act of aiding and abetting occurred. Be aware that the common law exempted the felon's wife from liability as an AAF, i.e., a wife could not be an AAF to her husband's felonies. [Note that modern merger of parties resulted in what the common viewed as AAF being treated as a separate offense such as obstruction of justice, harboring a fugitive, or, as in Texas, Section 38.05 TPC hindering arrest, prosecution, conviction or punishment.]
Mere Presence Alone Not Sufficient By Itself to Make One a Principal at Common Law - The mere presence of a person at the scene of crime with nothing more is classically viewed as being insufficient to make one a party to the offense. But there may be circumstances where presence with actually appearing to do anything is sufficient to make one a party, e.g., the lookout who stands and observes but does not need to give an alarm but who agreed to aid by watching and calling out if necessary.
Attempting to Aid Under the Common Law - What if the conduct intended to aid another to commit an offense does not aid in any way? At common law, if the would be complicitor (accomplice, aider) does not actually aid the doer, there is no vicarious party liability. Thus, if D1 attempts without success to aid D2 to rob V, but D2 successfully robs V anyway, D1 would not be a party complicitor, i.e., an accomplice (aider), to the offense of robbery and would not be vicariously liable for robbery because D1 did not render any aid. The aid can be minimal, and it doesn't have to be essential to the doer's successful completion of the object offense. See below. Note that Section 2.06(3)(a)(ii) MPC and Section 7.02(a)(2) TPC take the opposite approach to the common law and permit complicity (accomplice) liability where D1 attempts (without success) to aid another to commit an offense.
Causal Connection Between Complicitor's Conduct and the Completed Offense Not Require Under Common Law - Though at common law the complicitor's conduct must actually aid the doer, it is not necessary that the aid be essential. One can be a party to the principal's crime even if the "but for" the aiders assistance the crime would have occurred anyway. Stated differently, a person can be an accomplice at common law even though there is no "but for" causal connection between the accomplice's conduct and the offense for which s/he is being held vicariously liable. The accomplice's liability is viewed as derivative (derived from) the person who committed the offense.
Common Law Accomplice Liability Under the "Natural and Probable Consequences Rule" (NPCR) for Collateral Offenses Committed by the Doer - The common law natural and probable consequences rule (NPCR) is a doctrine that makes an accomplice liable for secondary offenses other than the one that the complicitor intentionally aided or assisted. It is important to recognize that the NPCR links complicity liability for secondary crimes with the crime that the complicitor intentionally aided or assisted. In other words, the NPCR clicks in only when we have an accomplice to a primary crime; this link is necessary before we ask the reasonable foreseeability question regarding secondary crimes. The NPCR makes the accomplice liable for secondary crimes committed by the doer that are the natural and probable consequences of the offense the accomplice intended to assist. This means that when D1 intentionally aids D2's commission of the primary crime, e.g., bank robbery, and, in the course of committing the robbery of the bank, D2 commits a secondary crime, e.g., murder of a bank guard, the accomplice could be liable not only for bank robbery but also for murder of the guard, provided that the murder was a reasonably foreseeable, i.e., a natural and probable, consequence of the primary offense (bank robbery). Notice that the complicity liability imposed under the NPCR can be imposed when the complicitor - accomplice was simply negligent with regard to the possibility that the doer (common law PFD) might commit the secondary offense, i.e, the complicitor should (ought to) have foreseen it, even though he may not in fact have done so. [Note that the MPC rejects both the NPCR (rule of accomplice liability for collateral crimes by the doer) and the federal Pinkerton Rule (rule of liability for foreseeable acts of a coconspirator in furtherance of the conspiratorial purpose); Texas does not have a version of the NPCR, but does have a Texas version of Pinkerton in Section 7.02 (b) TPC.] MODEL PENAL CODE COMPLICITY - Model Penal Code Section 2.06 describes liability for conduct of another, i.e., complicity. Legal accountability for the conduct of another person is based on three situations: (1) acting with the kind of culpability required by the offense and causing an innocent or irresponsible person to engage in the conduct, e.g., a would be robber sending a child or insane person into the bank to commit the offense; (2) where the law defining the offense or the Code makes one liable for conduct of such other person; and (3) where one is an accomplice of another person in the commission of an offense. MPC Rejects the NPCR and the Pinkerton Rule - The Model Penal Code rejects the NPCR and the Pinkerton Rule. TEXAS PENAL CODE COMPLICITY - Complicity is described in Chapter 7 - Criminal Responsibility for Conduct of Another under the Texas Penal Code. (1) Tx. Cases - (1)(2)(3)(4)(5)(6) Traditional complicity liability for an offense committed by the conduct of another is established under Section 7.03(a) TPC in three situations: (1) where one, acting with the kind of culpability required for the offense, causes or aids an innocent or nonresponsible person to engage in the conduct prohibited by the definition of the offense; (2) where one, acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids or attempts to aid the other person to commit the offense; and (3) where one, having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, fails to make a reasonable effort to prevent commission of the offense. Liability under Section 7.02(a)(2) TPC is not established by mere presence. In Texas, mere presence is not sufficient to make one a complicitor. See Randolph v. State, 656 S.W.2d 475 (Tex. Crim. App. 1983); Golden v. State, 851 S.W.2d 291 (Tex. Crim . App. 1993). Presence is, however, a circumstance that may be considered as one factor among others that may establish complicity. The solicitation, encouragement, direction, aid, or attempted aid that is sufficient to make one a complicitor can be very slight. There is no "but for" requirement, i.e., it is not necessary that there be a "but for" causal connection between the complicitor's conduct and the completed offense. Unlike common law but like Section 2.06(3)(a)(ii) MPC, attempting to aid another to commit an offense can be the basis for complicitor liability in Texas, even though the conduct intended to aid does not aid in any way. An "agreement to aid another" in commission of an offense, though part of the express definition of an accomplice under Section 2.06(3)(a)(ii) MPC, is not mentioned in Section 7.02(a)(2) TPC. What if D1 hands D2 a gun with which D2 murders V? Is D1 criminally responsible for the conduct of D2? See Navarro v. State, 776 S.W.2d 710 (Tex. App. - Corpus Christi - 1989) The Texas version of the Pinkerton Rule of vicarious responsibility of one coconspirator for the felony offense(s) committed by another of the coconspirators is found in Section 7.02 (b) TPC. See Fuller v. State, 827 S.W.2d 919 (Tex. Crim. App. 1992). Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). It reads as follows :
"If in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy."
Query, doesn't this create the a theory of complicity under which conspirator D in Texas could be liable for all secondary felonies committed by coconspirators D1, D2, D3, D4, etc, in furtherance of the crime that was the object of the conspiracy where D's only mental state was being negligent about whether one of his coconspirators would commit these secondary felonies, i.e., D should have anticipated that the collateral felony(ies) would be committed as a result of the carrying out of the conspiracy? Good policy or bad policy in terms of vicarious liability? Could it be used to make a co-conspirator liable for capital murder? (1 - apparently so)
Individual and Vicarious Corporate (or Enterprise) Liability for the Crimes of Agents and Employees of the Corporation (or Enterprise)
The corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.
A corporation is just like any natural person, except that it has no pants to kick or soul to damn.
I hope we shall take warning from the example of England and crush in its birth the aristocracy of our
moneyed corporations which dare already to challenge our Government to trial,
and bid defiance to the laws of our country.
Corporations cannot commit treason, nor be outlawed, nor excommunicated, for they have no souls.
The country is governed for the richest, for the corporations, the bankers, the land speculators,
and for the exploiters of labor.
Vicarious Individual Liability
Vicarious liability of an individual, as opposed to complicity based on being accomplice or coconspirator, is imposed not for the accused's affirmative participation in a crime or membership in a conspiracy, but rather because of the relationship of the accused and the perpetrator of the crime. Vicarious liability does not require the defendant to do anything in an effort to aid the commission of the crime. Nor does it rest upon the defendant's membership in a conspiracy to commit a crime. Most often, vicarious liability is imposed because the otherwise faultless defendant is being held liable not for what he has done but for the what his business employee has done, e.g., when the statutes allow the owner of the liquor store to be held liable for selling liquor to a minor when his sales clerk employee actually committed the crime unbeknownst to the owner and without any conduct on the store owner's part. (1)(2) Notice that at common law, the faultless employer was not criminally liable for unauthorized criminal conduct of his employee with two exceptions, nuisance and libel. See LaFave, Principles of Criminal Law, 2nd Edition, Sec. 12.4(a) The question arises as to the difference between the concept of strict liability and vicarious liability. Both concepts involve liability without fault. They differ in that strict liability though requiring conduct on the part of the accused dispenses with the requirement of mens rea. Whereas, vicarious liability dispenses with the requirement of criminal conduct by the accused and leaves only the issue of whatever culpable mental state may be required by the law, e.g. negligence, if any is required (often not). Sometimes a high managerial agent will be vicariously liable as an individual for a statutory public welfare type offense when he is unaware of the criminal conduct for which he is being held responsible. A good example of this vicarious liability is reflected in United States v. Park, 421 U.S. 658 (1975) where Acme Markets as a corporation and its CEO Park, in his individual capacity, were each charged with a violation of the Federal Food, Drug and Cosmetic Act for causing food shipped in interstate commerce to be stored in a building accessible to rodents. (in Texas we call 'em rats.).The corporation pled guilty but Park appealed his $50per count fine to the USSC, where he lost. Another case that affirmed the individual criminal responsibility of a high corporate official for the conduct of corporate employees with lower pay grades was United States v. Dotterweich, 320 U.S. 277 (1943) where the corporate president/general manager of Buffalo Parmacal Co. was held individually to have a responsible relation to the adulteration and misbranding of drugs by subordinates in the company in violation of the Federal Food, Drug and Cosmetic Act. See Crum v. State, 946 S.W.2d 349 (Tex. App. [14th Dist]1997); Hefner v. State, 735 S.W.2d 608 (Tex. App. [5th Dist.] 1987); Littlefield v. State, 586 S.W.2d 534 (Tex. Crim. App. 1979) See also Scholarship - Law Review Articles.
Vicarious Corporate Criminal Liability Criminal liability based on respondeat superior is well entrenched in the law. To repeat what was said above, vicarious liability of a corporate or non-corporate enterprise, rather than complicity based on being an accomplice or coconspirator, is imposed not for the accused's affirmative participation in a crime or membership in a conspiracy, but rather because of the relationship of the accused and the perpetrator of the crime. Vicarious liability does not require the defendant enterprise to do anything in an effort to aid the commission of the crime. Nor does it rest upon the defendant enterprise's membership in a conspiracy to commit a crime. Most often, vicarious liability is imposed because the otherwise faultless enterprise is being held liable not for what it has done but for the what its business employee has done. Corporations and other enterprises have no souls, but they are legal entities with deep pockets, and in many jurisdictions, statutes allow corporations to be convicted and fined for the crimes of their agents and employees. Prosecutors may even charge a parent corporation for crimes of its subsidiary’s employees. Of course, it is possible that a person who is an agent or employee of a corporation may also be charged with a crime in an individual capacity See United States v. Park, above, where both the corporation and its president were charged.
Common Law: At common law a corporation did not have capacity to commit a crime because a corporation was deemed incapable of forming mens rea.
MPC: §2.07(1)(a), (1)(b), and (1)(c) recognize three circumstances in which a corporation can be criminally responsible. The MPC sates that a corporation may be convicted of the commission of an offense if (a) the offense is a violation or the offense is defined by a statute other than the Code in which a legislative purpose to impose liability on corporations plainly appears and the conduct is performed by an agent of the corporation acting in behalf of the corporation within the scope of his office or employment, except that if the law defining the offense designates the agents for whose conduct the corporation is accountable or the circumstances under which it is accountable, such provision shall apply; or (b) the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or (c) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment. When absolute liability is imposed for commission of an offense, a legislative purpose to impose liability on a corporation shall be assumed, unless the contrary plainly appears. MPC 2.07 (3) also allows an unincorporated association to be convicted of the commission of an offense if (a) the offense is defined by a statute other than the Code that expressly provides for the liability of such an association and the conduct is performed by an agent of the association acting in behalf of the association within the scope of his office or employment except that if the law defining the offense designates the agents for whose conduct the association is accountable or the circumstances under which it is accountable, such provision shall apply, or (b) the offense consists of an omission to discharge a specific duty of affirmative performance imposed on associations by law. Section 2.07 also provides a due diligence defense for prosecutions under Subsection (1)(a) or Subsection(3)(a) other than an offense for which absolute liability has been imposed; the due diligence defense provides that a defendant must prove by a preponderance of the evidence that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission. The MPC makes it clear that a person is legally accountable for any conduct that he performs or causes to be performed in the name of the corporation or an unincorporated association or in in its behalf to the same extent as if it were performed in his own name or behalf. The MPC provides that whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself. Re punishment, when a person is convicted of an offense by reason of his legal accountability for the conduct of a corporation or an unincorporated association, he is subject to the sentence authorized by law when a natural person is convicted of an offense of the grade and the degree involved.
Texas: Texas has specific penal provisions dealing with corporate criminal responsibility. See §7.21; §7.22; §7.23; §7.24 (corporate criminal responsibility) and §12.51 TPC (punishment for corporations). A "person" includes individuals, corporations and associations. See §1.07(a)(38) TPC. See also, Ex parte Austin Independent School District, 23 S.W.3d 596 (Tex. App. [3rd Dist.] 2000). Thus, a corporation can commit any offense that is defined in terms of the conduct of a person. See Collection Consultants Inc. v. State, 556 S.W.2d 787 (Tex. Crim. App. 1977), involving a charge of telephone harassment. Corporate criminal responsibility for felony offenses is tied to conduct and mens rea of the board of directors acting in behalf of the corporation or high managerial agents acting in behalf of the corporation and within the scope of employment. The board must be acting on behalf of the corporation and so must the agent. In addition, the agent's conduct must be within the scope of his employment. Due diligence of the agent to prevent commission of the offense is an affirmative defense. See §7.24 TPC. Corporate Responsibility in Texas for Criminal Homicide: A few words should be said about corporate criminal responsibility for homicide. One might wonder how an artificial entity (a corporation) without a mind or the capacity to have mens rea could be guilty of a mens rea crime such as a criminal homicide. See, Corporation’s criminal liability for homicide, 45 ALR4th 1021.Consider whether a corporation could be liable for criminal homicide in Texas? The Texas high court has held that a corporation may be convicted of the crime of negligent homicide; the corporation unsuccessfully argued that, because corporations are unable to form mens rea, they cannot be prosecuted for any type of criminal homicide. See Vaughn & Sons v. State, 737 S.W.2d 805 (Tex. Crim. App. 1987); See also Sabine Consolidated v. State, 806 S.W.2d. 553 (Tex. Crim. App. 1991) where death resulted to an employee killed in an inadequately reinforced construction trench. Federal Law: Under federal law, a corporation can be held vicariously liable for a crime if an agent committed a crime while acting within the scope of his authority for the corporation. This is the majority rule around the country. See Johnson v. Abbe Engineering Co., 749 F.2d 1131 (5th Cir. 1984). Of course, Ralph Nader may have been close to the mark when he said, "The administration is not sympathetic to corporations, it is indentured to them." Query: What if the board of directors of a corporation knowingly and intentionally voted to commit a mens rea crime to benefit the corporation, i.e., pollution or bribery or even murder? Wholly aside from the individual liability of the directors, should the corporation also be liable to punishment? If we accept the concept of corporate criminal responsibility for mens rea offenses, we must determine how low in the corporate structure we wish to go in making the corporation liable for conduct of its workers, e.g., corporate directors, upper management, middle management, lower management, blue collar workers. In 1909, the United States Supreme Court noted that corporations could be held responsible for and charged with the knowledge and purpose of their agents, acting within the authority conferred upon them. See New York Central & Hudson Railroad Company v. United States, 212 U.S. 481 (1909). In recent times some courts have used the doctrine of "collective knowledge" to find corporate mens rea by aggregating the knowledge of the corporate employees. See United States v. Bank of New England, 821 F.2d 844 (1st Cir. 1987). See also Coffee, "No Soul to Damn: No body to Kick": An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Michigan L.Rev. 386 (1981).