CHAPTER FOUR
CRIMINAL LIABILITY
Learning Objectives
After reading this chapter, students will be able to:
1. Identify when conduct has crossed the line between thinking about committing a crime
and attempting to commit a crime.
3. Identify the steps that must be taken before one can be guilty of a conspiracy.
5. Identify the circumstances when abandonment of the criminal purpose can have an effect
on liability for an attempt, or liability for criminal acts done in a conspiracy.
7. List the parties who can be treated as principles for purposes of criminal liability.
Lesson Plan
Correlated to PowerPoints
I. Preliminary, anticipatory, or inchoate crimes
Learning Objective 1: Identify when conduct has crossed the line between thinking about
committing a crime and attempting to commit a crime.
Learning Objective 2: Explain the function and need of corroborating evidence in solicitation
prosecutions.
Learning Objective 3: Identify the steps that must be taken before one can be guilty of a
conspiracy.
Class Discussion/Activity
Have students discuss the elements needed to charge a person with
solicitation and conspiracy. Have students get into groups and perform
role-playing.
A. Questions that Arise with Inchoate Crimes
i. Where and when does non-criminal conduct become criminal conduct by a
further act of the suspect?
ii. Which of the preliminary offenses, if any, has the suspect committed?
iii. When does the commission of the principal offense begin, so as to allow
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the state to charge either the preliminary offense or the principal offense?
What If Scenario
Your friend calls you on the phone and says that he has gotten a great deal on a large quantity
of illegal iPads and wants you to help him sell them. He offers to give you half of all the money
that is received. You agree to the suggestion but then call the police and tell them what has
transpired. Has the situation gone far enough at this point to solicitation? What information do
you have that would justify charging your friend with solicitation?
B. Solicitation or Incitement to Commit a Crime
i. Attempt to get another to commit a crime.
ii. Attempt to commit a conspiracy
iii. Prosecutions under solicitation statutes require a showing that the defendant
has done more than make a casual suggestion that a crime be committed.
iv. Crime and stated intention
Class Discussion/Activity
How does corroborating evidence function in solicitation prosecutions?
Why is corroborating evidence important? Is corroborating evidence
necessary?
C. Conspiracy to Commit a Crime
What If Scenario
As part of an effort to deal with the threat of terrorism the Department of Homeland Security
has asked the Federal Government to pass a law making it illegal to discuss terrorism at any
time, for any reason. What problems would there be in such a law? What constitutional
challenges would be likely if such a law were to pass? Has any similar legislation been passed
since 9/11?
i. Oldest of the preliminary crimes
ii. Can be traced to around 1300 A.D.
iii. All states have conspiracy statues for the following reasons:
1. increase potential harm to the society
3. increase the chances of success of a crime
4. can make actions more difficult to detect than when one individual
prepares to commit a crime
iv. An agreement between two or more persons to engage in unlawful acts.
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v. The purpose of criminal conspiracy statutes is to prevent and punish criminal
partnerships in crime and to stop, if possible, such criminal combinations of
people before attempts to commit substantive crimes are made.
vi. Because conspiracy was looked on as a partnership in crime, the traditional
view, known as the “bilateral approach,” was that the state must prove the
“unilateral” approach.
viii. Partnerships
ix. Conspiracy can also be proved even if the co-conspirator cannot be found or
cannot be identified.
D. The Requirement of an Overt Act – Assignment Number 3
Class Discussion/Activity
What is the purpose of requiring proof of an overt act in a criminal
conspiracy charge? Why doesn’t the federal statute forbidding drug
conspiracies have such a requirement?
i. Under the common law conspiracy rules, proof of the criminal partnership
was all that was required to prove the crime of conspiracy.
ii. Today, most states have written into their criminal conspiracy statutes the
requirement of proof of an overt act by a defendant.
iii. The Model Penal Code, section 5.03(5) states that a conviction for conspiracy
requires proof of an overt act, unless the underlying crime is a “felony of the
first or second degree.”
iv. The overt act requirement exists in some federal conspiracy statutes, but not
others.
i. The general federal conspiracy statute, 18 U.S.C. § 371, expressly
requires proof of an overt act done in furtherance of the criminal
conspiracy that is charged.
ii. 21 U.S.C.A. § 846, which applies to a conspiracy to violate federal
drug laws, has no requirement of proof of an overt act, but only
proof of a criminal conspiracy.
iii. Conspiracy prosecutions under the Federal Racketeer Influenced and
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Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, have
presented some problems in the overt act requirement.
1. Salinas v. United States: a person could be convicted of the
3. Overt acts are often very convincing evidence of the
sincerity of a conspiracy agreement, and almost all strong
conspiracy cases have evidence of overt acts.
v. The Wharton Rule
i. Some crimes cannot be committed alone but require two or more
people.
ii. Impossibility: In United States v. Jimenez Recio23 the Court reversed
a Ninth Circuit Court of Appeals decision that conspirators could not
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E. The Crime of Attempt – Assignment Number 2
What If Scenario
Abusive practices by the prosecutor’s office have led the legislature in your state to remove the
crime of attempt from the legal code. What consequences may occur as a result? Would the
effects of this change be limited to the criminal justice system? What other areas of your state
may feel impacts of this change?
1. Attempted murder
2. Strict liability crimes
F. Impossibility in Attempt Cases
2. Legal impossibility
3. Most state courts and the federal courts have abandoned the distinction
4. One form of the impossibility defense in attempt cases remains viable.
a. If a defendant plans to engage in conduct that he or she believes to
be a crime, but the conduct as planned is not a crime, the defendant
is not guilty of an attempt.
Class Discussion/Activity
While friends were finishing a late night barbeque dinner on the patio of a
home, a man wearing a hood and brandishing a gun burst onto the patio
and demanded money, threatening to shoot someone if his demand was
denied. The robber took off his hood, reached for some barbeque chicken.
After eating a few bites he commented the food was very good. The
partygoers offered him more food, and he put his gun in his belt. He
apologized and told the guests he had come to the wrong house. The
robber left, stealing nothing and hurting no one.
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Did the robber commit the crime of attempted robbery or robbery? Can he
argue successfully that he abandoned his criminal activity before a crime
was committed?
G. Abandonment of the criminal purpose
i. The Model Penal Code, Section 501.04, states that it is a defense to the crime
II. Parties to the principal crime – Assignment Number 1, 3
Learning Objective 6: State the rule for liability of one conspirator for actions of another.
Learning Objective 7: List the parties who can be treated as principles for purposes of criminal
liability.
A. The following four common law categories were used to determine the penalty
that would be applied after conviction to the parties to the principal crime:
2. Principle in the second degree; historically knows as the person(s)
3. Accessory before the fact was a person who, knowing that a crime
4. Accessory after the fact: was a person who knew that the crime had
been committed and gave aid or comfort to the person who
committed the crime.
B. Today, most states have done away with the four common law categories, as has the
federal government.
1. The majority of jurisdictions have statutes that create the following two
categories of criminal liability and make all principals or parties to the crime
liable to the same punishment:
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a. All people who knowingly are involved in or connected with the
commission of a crime either before or during its commission are
C. Theories of Criminal Liability
1. Criminal liability as an aider and abettor and/or a conspirator
3. Criminal Liability Under the Common Design or Common Plan Rule.
a. Scope of liability of persons who are party to a conspiracy or other
agreement to do an unlawful act.
D. Liability for Crimes Other than the Planned and Intended Offense
1. When the evidence demonstrates a common design or conspiracy to commit
an unlawful act to which all the defendants agreed, whatever is done in the
furtherance of the criminal plan is the act of all, if it is a natural and probable
consequence of the intended crime.
2. The Pinkerton Rule
a. Criminal liability can result from intentional, reckless, or grossly
negligent conduct.
What If Scenario
Liability for crimes other than the planned and intended offense
John and Joe plan to commit a burglary at a residence. Joe is the lookout and getaway driver
while John commits the burglary in the house. John commits the following crimes during the
burglary. For which of the crimes committed by John may Joe be convicted?
John is surprised by the homeowner and, in an attempt to get away, kills the man.
John is surprised by an eleven-year-old boy who lives in the house and needlessly kills the boy.
III. Post-crime offenses – Assignment Number 4
Learning Objective 7: List the parties who can be treated as principles for purposes of criminal
liability.
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A. The material elements of crimes include conduct that is forbidden or required, and
often the mental state existing at the time of the forbidden act or omission.
1. Today, all states and the federal government have enacted many statutes
regarding post-crime offenses meant to assist law enforcement officers in
performing their duty of investigating crimes and apprehending criminals.
a. Some statutes punish people who knowingly give police false
Lecture Notes
Students need to think carefully about why the law punishes people who haven’t yet committed a
crime. Is this good public policy? What goals does it serve? Can this authority be abused by the
government? What is the actus reus of an attempt to commit a crime? How close to committing a
crime must the defendant get to be guilty of attempt? Is preparing to commit a crime sufficient? If
so, how much preparation is need before a criminal attempt has occurred? These are not easy
Students should be encouraged to start noticing news accounts about attempt and conspiracy
convictions. They’ll probably be surprised by how often inchoate crimes are charged and how often
they lead to convictions. For example, Apple is fighting in court against charges that it conspired
with publishers to drive up the price of e-books.
Conspiracy law is extremely controversial because it allows people who agree to commit a crime to
be prosecuted as criminals. The actus reus is the very act of agreement. The agreement doesn’t
have to be in writing. In some states, the agreement itself is sufficient. In other states there is a
requirement for an overt act to verify the agreement. The Pinkerton rule (named after Pinkerton v.
Ask students what is required for an individual to be criminally liable as an aider, abettor, or
conspirator. Discuss the importance of reasonable inferences in these crimes. The common design or
plan is very important here. Individuals must agree to a commit an unlawful act and they can then be
Key Terms
preliminary, anticipatory, or inchoate crimes – Criminal acts that lead to or are attempts to
commit other crimes. (p. 87)
solicitation or incitement crimes – Attempting to get another to commit a crime. (p. 87)
conspiracy crimes – An agreement between two or more persons to engage in unlawful acts. (p. 88)
Wharton rule – Named after Francis Wharton, the author of an early treatise on Criminal Law,
states that the crime of conspiracy cannot be charged if the number of people involved are only those
necessary to commit the crime. (p. 91)
attempt crimes – Acts that are a substantial step toward the commission of a crime that is not yet
completed. (p. 93)
parties to the principal crime – Under common law, persons who either committed the crime, or
aided or abetted the commission of the crime or the persons who committed the crime. (p. 99)
accomplice – One who aids another in the commission of a crime. An accomplice is generally
treated the same as a principal. (p. 100)
aider and abettor – One who provides help to the person who commits a crime, either before or
after the crime is committed. (p. 101)
conspirator – A person who is a party to an agreement to commit an unlawful act. (p. 101)
common design or plan – Scope of liability of persons who are party to a conspiracy or other
agreement to do an unlawful act. (p. 101)
Assignments
1. There have been several high profile conspiracy cases that generated a lot of media
coverage. Have students research and report on one of the following cases or encourage
them to find some of their own that they find interesting. This assignment can be done
individually or in small groups. Additionally, students can be assigned to research two or
more conspiracy cases and compare and contrast the similarities and differences.
2. Students should research the crime of attempt in their state statutes. It would also be
instructive for them to research the meaning of attempt in several other state criminal
3. Students can review their state statutes to see how the parties to a crime are defined.
In the case United States v. Falcone (1940), the defendants sold yeast and sugar to a man
who was making illegal alcohol. The evidence showed that defendants knew that their
products were being used for illegal purposes. What was the Supreme Court’s decision
regarding the existence of a conspiracy. What was the Court’s reasoning? What if a gun
dealer sells guns to a person he knows will use them to commit crimes? [LO 3, 6, 7]
4. Have student’s research news articles to find an example of a post-crime offense. Provide
time during class to discuss the different types of post-crime offenses the students found.
How many different types of post-crime offenses did they find? Do they believe that they
have found a good representation of the types of post-crime offenses that your
jurisdiction has? If not, what others are there? This can be an individual or small group
Case Analysis and Writing Exercises
1. Assume that the defendant is riding in a car being driven by a person who is clearly
intoxicated. Nonetheless, the defendant urges the driver to exceed the speed limit and ignore
traffic signs. The driver does so, and smashes the car into a building, injuring another
passenger. Can the defendant be charged, under accomplice liability, for driving while
intoxicated? Vehicular assault (the auto accident)? See People v. Childress, 363 P.3d 155
2. Illinois police became concerned about the number of high-powered rifles Olutosin Oduwole,
a student at Southern Illinois University, had ordered on the Internet. The purchase order
came shortly after the killings at Virginia Tech in 2007. After monitoring Oduwole’s
conduct, officers found a written note in Oduwole’s car (left unattended on campus) that said
“send $2 to this PayPal account” or another “murderous rampage similar to the VT shooting
will occur at another highly populated university. THIS IS NOT A JOKE!” Police
subsequently found that Oduwole had recently opened a PayPal account. Oduwole was
charged with attempted terrorist threat under the Illinois terrorist threat statute. Should he be
convicted? See People v. Oduwole, 985 N.E.2d 316 (Ill. App. 2013), review denied, 39
3. The defendant, Brantley, was driving a car with her boyfriend, a convicted felon, when she
was stopped by police for a traffic violation. When the two police officers began questioning
the boyfriend, he got out of the car, pulled a gun, and killed both officers. Then he ran away.
The defendant drove away from the crime scene, and the two exchanged various text
messages. Brantley was charged with misprision of felony under 18 U.S.C. § 4. What did
4. Allen, a volunteer fire fighter in Vermont, and some of his other fire fighters, believed the
lack of fire calls was “like kind of getting boring.” So, they decided to set some fires in
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uninhabited grasslands, so they could respond to a fire call at the fire station. Some of the
fires were set in federally owned park lands. Allen was charged and convicted of conspiracy
to violate 18 U.S.C. § 1855, which makes it a crime to “willfully” sets on fire timber or grass
on any land owned or managed by the United States. Allen claims the prosecution failed to