Complicity - Conspiratorial Liability

Conspiratorial Liability

A conspiracy is an agreement between two or more people to commit a crime or unlawful act or a lawful act by unlawful means. In the United States, any conspirator is responsible for crimes within the scope of the conspiracy and reasonably foreseeable crimes committed by coconspirators in furtherance of the conspiracy, under the Pinkerton liability rule. Notice the extent of potential liability. Under the Pinkerton rule, the conspirator could be held liable for crimes that he did not participate in or agree to or aid or abet or even know about. The basis of liability is negligence - the conspirator is responsible for any crime that were a foreseeable consequence of the original conspiratorial agreement.

WIth the exception of an accessory after the fact in most cases an accomplice is a co-conspirator with the actual perpetrator. For example, the person who agrees to drive the getaway car while his confederates actually rob the bank is principal in the second degree for purposes of accessorial liability and a co-conspirator for purposes of conspiratorial liability. However, many situations could arise where no conspiracy exists but the secondary party is still an accomplice. For example, the person in the crowd who encourages the batterer to "hit him again" is an aider and abettor but not a co-conspirator. As Dressler notes, the difference between the two forms of complicity is that with a conspiracy an agreements is sufficient no assistance is necessary whereas with accessorial liability no agreement is required but some form of assistance is necessary for liability.

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