GROUP CRIMINALITY

·        Accomplice Liability

o       Definitions

§        Principal of an Offense

·        1st Degree – as the scene of the crime, committing the crime; he is the actor and absolute perpetrator

·        2nd Degree – at the scene of the crime, but not the one who commits the crime; he who is present, aiding and abetting the fact to be done

o       Ex.  Look out or Getaway Car

§        Accessory – he who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein

·        Before the Fact – involved in the crime and knows about it in advance, but doesn’t go to the scene of the crime; one who being absent at the time the crime is committed, but yet has procured, counseled, or commanded another

·        After the Fact – doesn’t know about the existence of the crime until after the crime is committed, but knowing that the crime has committed, receives, relieves, comforts, or assists the felon/co-felon

o       Modern Penal Structure

§        Principal – same level of culpability

·        Principal in the 1st Degree

·        Principal in the 2nd Degrees

·        Accessory before the Fact

§        Accessory After the Fact – lower level of culpability

o       Aiding and Abetting – actus reus is providing some facilitating service to assist those committing the crime

§        Active participation is not necessary.  Mere acquiescence or knowledge is not enough.  MUST have specific intent to aid or abet the commission of a crime.

o       Accessories to a crime can be convicted before the principal is convicted (however, it must be proven that a crime was committed)

o       Begins the discussion on CONSPIRACY

·        Conspiracy

o       Loose Definition – A partnership in crime [or criminal purpose]

§        18 U.S.C. § 371

o       Elements

§        Each party must know that other parties exist, even though not necessarily their precise identity

§        There must be a community of interest among the participants

o       Functions in the Legal System

§        As an inchoate crime, it complements the provisions dealing with attempt and solicitation in reaching preparatory conduct before it has matured into the commission of a crime

·        Inchoateness allows the prosecution to reach back in time and get people on the path towards criminality

·        Shows a national fear of GROUP CRIMINALITY

o       Conspiracy is a Prosecution Friendly doctrine

§        Hearsay Testimony – though hearsay is generally inadmissible in court, there is a co-conspirator exception, which allows for a conspirator to testify against another co-conspirator

§        Δs can typically be coerced into testifying against each other for deals on sentencing.  Therefore, a conspiracy can crumble under the right type of prosecution

§        Can have increased punishment

§        Venue in court can be used for jurisdiction of ANY of the co-conspirators.  So the prosecution can take the case to a jurisdiction that is friendly to their prosecution

§        Imposes vicarious liability – any member of the conspiracy is liable for any crime committed by any other member of the conspiracy so long as it is foreseeable or in furtherance of the crime

o       Procedural Ease

§        Joinder – more you can get others charged, the more convictions you will have because they will start talking

§        Hearsay Testimony Exception

§        Venue – can bring a conspiracy trial into any jurisdiction in which anything having to do with the conspiracy has taken place

o       Conspiracy OFFICIALLY ends when the target crime is carried out

o       Conspiracy DOES NOT merge with the substantive crime

o       Vicarious Liability

§        Pinkerton’s Rule – each member of a conspiracy, while a member, is liable for every act and is bound by the acts of every other conspirator if they are foreseeable and in furtherance

·        Still good law in federal jurisdictions, while many state jurisdictions reject the rule

§        Withdrawal – Must be bother voluntary and complete

·        1- The individual withdrawing must make his abandonment known to EVERY member in the conspiracy

·        2- Withdrawal must be a voluntary change of heart, rather than fear of detection

·        3- Must by complete by (1) prevention of the target crime, or (2) bring in law enforcement to thwart commission

o       Mens Rea ­– Specific Intent (as in all inchoate crimes)

§        To establish agreement, need only show no more than a tacit, mutual understanding between co-conspirators to accomplish an unlawful act