1. Complicity, Vicarious Liability, Conspiracy and Attempt

2. Parties to Crimes Sometimes called the law of “complicity”
More colloquially, called “parties to offenses”
Sometimes called “inchoate” or preliminary or preparatory offenses
Many jurisdictions complicate the issue unduly (IMHO) by Principals (1°, 2°), Accessories Before the Fact, Accessories After the Fact, etc.
CT simplifies greatly (Model Penal Code approach)!

3. Connecticut’s Approach
Sec. 53a-8. Criminal liability for acts of another. (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.

4. Read This!
No mention of when the help is rendered (no “before” or “after”)
Mens Rea – D must have acted volitionally with intent or purpose of causing the actor to commit the crime (specific intent), Knowing acquiescence in criminality is not enough. Misprision of a Felony (Misdemeanor) is NOT a crime en CT!
Actus Reus – The act of the soliciting, requesting, commanding, importuning or intentionally aiding. But note well that liability under 53a-8 is completed whether or not the actor actually commits the crime! In some cases, the solicitation need not even be directed at a specific person!!!

5. Other Issues
Communication – Criminal liability under 53a-8 is incurred even if the solicitor (etc.) never effectively communicates the request to the “doer.” Once the D has spoken, written ( ed?) or otherwise attempted to communicate his wishes to the doer the crime is complete. It matters not that the doer never heard, read or understood the D’s desires!
“Joking” Communication – What if the D is ‘joking’ or kidding when he ‘solicits the act and the doer actually goes out and commits the act? What am I really asking here? (E.g., RMN and a Twilight Zone episode.)
Request to commit a legal act – At times a bad guy will get a “fall” guy to take the last step in his intended crime (‘willing dupe’). E.g., taking poisoned cookies to an intended victim (grandma?), making a secret compartment in a motor vehicle, etc. This is not solicitation. The dupe is merely an instrument of the D’s crime. It must be clear to the intended doer that the act being solicited is a criminal act.
Renunciation – …Prior to the offense being committed…etc.

6. Sec. 53a-10. Defense. (a) In any prosecution in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8, it shall be a defense that the defendant terminated his complicity prior to the commission of the offense under circumstances: (1) Wholly depriving it of effectiveness in the commission of the offense, and (2) manifesting a complete and voluntary renunciation of his criminal purpose. (b) For purposes of this section, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in 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. 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.

7. Attempts Attempted Murder, etc. CGS 53a-49 (on screen)
Mens Rea – Requires the general intent to volitionally do the acts constituting the attempt and the specific intent that the acts constitute a substantial step AND the necessary intent to commit the underlying crime
Actus Reus – The acts that constitute the attempt must progress sufficiently toward the intended underlying crime

8. 53a-49
Sec. 53a-49. Criminal attempt: Sufficiency of conduct; renunciation as defense. (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally 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 a course of conduct planned to culminate in his commission of the crime. (b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime. (c) When the actor's conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

9. Issues
When does the Actus Reus pass from being an “act of preparation” to “an act of perpetration?”
CT uses the Model Penal Code language (“…strongly corroborative…”)
Other tests have developed:
Last proximate act
Control over all indispensable elements
Physical proximity – what remains to be done
Res ipsa loquitor
Best one, probably – the closer the D is to completing the crime, the more likely it is an “attempt” if the crime is thwarted in some way

10. Renunciation
“…(c) When the actor's conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
Sec. 53a-50. Effect of motivation on renunciation. For purposes of this part, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in 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. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct or to transfer the criminal effort to another but similar objective or victim.

11. Special Problems with Attempts
Impossibility: What if a defendant believes that he can successfully commit a crime, but tht for reasons unknown to him, it is in fact impossible?
Legal Impossibility – The defendant sets out to commit an act that he believes is a crime, but that, in reality, is not! This is a complete defense! Examples?
Factual Impossibility – D set out to do something that is a crime but that, for reasons unknown to him at the time, is impossible. This is not a defense. Examples?
Obvious (Inherent) Impossibility – D sets out to do something that is clearly not attainable, thinking it is a crime. This is a complete defense. Examples?

12. Special Problems with Attempts
Abandonment – At common law, there was no such defense. The crime was complete after sufficient steps were taken so as to corroborate D’s intent. Modern statutes (including CT’s) have recognized the defense. Re-reading the requirements of the defense, do you think that it is often used? Often succeeds? Does its presence in the statute provide incentive for a D to abandon his plan?

13. FYI Exam 1

14. Conspiracy
Sec. 53a-48. Conspiracy. Renunciation. (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. (b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

15. Elements of Conspiracy
Mens Rea1: Intent to Agree
Mens Rea2: With Intent that conduct constituting a crime be performed
Specific Intent?
General Intent?
Actus Reus: Agrees with one or more persons
Commission of an Overt Act by any one of them (???)

16. Mens Rea
Intent to Agree – This is Specific Intent. What does this requirement eliminate?
Intent that Conduct Constituting a Crime be Performed –
What if D doesn’t know what that crime is?
What if he isn’t sure?
What if he knows that his part will merely make the accomplishment of the crime “easier?”
What if D’s acts are to provide others with the instrumentalities of the crime without knowledge that the were to be used as such?
Tough questions!! Generally speaking, if the more the D benefited in some way from the crime and the more serious the crime, the more likely it is that he will be regarded as a co-conspirator.

17. Actus Reus Agreement – A “meeting of the minds”
Actual – written, oral
Implied – D may “accept” an offer to participate by deeds alone! Example?
Overt Act – Not necessarily by the D! May be accomplished by any of the co-conspirators. Why this additional requirement?
Concept of “harm” in criminal law. If 2 or more agree on a criminal act and no one does a thing about if, what’s the harm? Isn’t this like just “thinking” about committing a crime for an individual?
Provides and opportunity for the conspirators to “repent.”
Overt Act Defined – “An overt act is any step, action, or conduct that is taken to achieve or further the objective of the conspiracy. An overt act, therefore, is one that is committed or caused to be committed by any member of the conspiracy in an effort to accomplish some objective or purpose of the conspiracy” (State v. Boykin, 1992)

18. Special Problems in Conspiracy
Between 2 or more persons…. What happens if all of the others are acquitted? Never found? Die? Does this mean D cannot be charged alone?
MPC and CT – no effect
Liability for crimes of co-conspirators – What if the others commit crimes as overt acts or crimes in furtherance of the conspiracy? Need D specifically authorize such acts? Even know of them?
Generally speaking, NO!!!! D is criminally liable for all acts of co-conspirators committed in furtherance of the conspiracy, whether he knew if them or not!!
How long does the conspiracy last? Does it include an escape from the scene of a crime?
The conspiracy lasts until all of the objectives of the conspiracy have been achieved. This means that some NEVER end! This is especially important in light of the vicarious liability each of the conspirators for the act of the other.

19. Special Problems in Conspiracy
Overt Act – Note well that this requires much less than the “substantial step” we talked about with regard to “attempts!”
Conspiracy with unknown parties – It is not necessary that all of the parties even know of the existence of the others!
Conviction may be had for the Conspiracy AND the completed crime (unlike attempts)!
May conspire with “feigned” co-conspirators. That is, with po9lice officers posing as bad guys!
Wharton’s Rule – No conspiracy to commit crimes with element requiring more than one person. Examples: dueling, incest, bigamy, adultery, etc.

20. Special Problems in Conspiracy
Liability for acts of co-conspirators (Pinkerton v US (1946) – Each member of the conspiracy is liable for the criminal acts committed by all other members of the conspiracy if:
Such act was “reasonably foreseeable,” and
Committed “in furtherance of the conspiracy.”
Liability for acts already committed by co-conspirators prior to D’s joining? Difference of opinion!!

21. Withdrawal Connecticut allows. General requirements are:
Communication to ALL others in the conspiracy
Timely – prior to the accomplishment of the object(s) of the conspiracy
Prevention of the target crime? Some states require this.

22. The “Darling” of the Prosecutor’s Nursery
Cute, huh?
Gives prosecutor more flexibility in proving offenses – makes D’s job more difficult
Allowing conviction of conspiracy and criminal objective (along with the act of co-conspirators) allows for increased penalties
Choice of “venue” – D may be tried in any jurisdiction where the agreement or any of the overt acts was carried out
Hearsay exception – Statements of conspirators are admissible against all others
Joint trials –cheaper and faster.

23. Comparison of Inchoate Crimes in Connecticut
Solicitation, etc.
(53a-8)
Attempt
(53a-49)
Conspiracy
(53a-48)
Mens Rea
Intent to cause the person solicited to commit the crime
Specific Intent to – (i) commit the acts or cause the result constituting the target crime and (ii) the intent necessary to commit the target crime
Specific Intent to (i) enter into agreement and (ii) achieve the objective of the conspiracy
Actus Reus
Soliciting, requesting, commanding, importuning or intentionally aiding
Another person to commit an offense
Acts that constitute the attempt must progress sufficiently toward the intended underlying crime
(i) agreeing and (ii) the commission of an overt act by any member of the conspiracy
“Merger?”
Yes No
Withdrawal?