§ 30.08 Conspiratorial Liability: The Pinkerton Doctrine

§ 30.08 Conspiratorial Liability: The Pinkerton Doctrine49

[A] "Accomplice" versus "Conspiratorial" Liability

Courts and lawyers frequently fail to distinguish between accomplice liability, the subject of the preceding sections of this chapter, and conspiracy liability—complicity based solely on a conspiratorial relationship—which is the topic of this chapter section. This is because the two concepts "normally go hand-in-hand."150 However, it is sometimes necessary to distinguish between the two forms of complicity liability, particularly because, as will be seen, conspiratorial liability is potentially a broader form of liability than accomplice doctrine.

The distinction between the two forms of accountability is this: An agreement between two or more persons to participate in the commission of a crime is the key to a conspiracy and, therefore, to conspiratorial liability. Actual assistance in committing the crime that is the object of the conspiracy is not required. In contrast, accomplice liability requires proof that an actor at least indirectly participated (assisted) in the crime; an agreement to do so is not needed.151

In most circumstances, an accomplice is also a conspirator with the primary party in the commission of the crime. For example, if S drives P to a bank, which P robs with S's weapon, and S drives P away from the bank, it is reasonable to infer a prior conspiratorial agreement between S and P. And, looking at the matter from the other direction, the sheer act of agreeing may serve as encouragement to the primary party, and thereby render the conspirator an accomplice in the commission of the crime.

Nonetheless, one can be a conspirator without being an accomplice. For example, in Pinkerton v. United States,152 S and P conspired to violate certain provisions of the Internal Revenue Code. Thereafter, P violated the Revenue Code provisions. However, he did so while S was incarcerated for unrelated reasons. The prosecutor did not claim that S assisted P in the planning or commission of the substantive offenses. And S's presence in prison negated any reasonable inference that his earlier act of agreeing encouraged P when he committed the crimes. S's responsibility in P's conduct, therefore, was not based on accomplice principles, and had to find its source exclusively in conspiracy law.

Accomplice liability in the absence of a conspiracy is also possible. For example: P enters a bank to rob it; S, a customer, observes P's actions and silently assists in the crime by disabling a bank security camera. Here, P and S never agreed to commit the robbery together. But S is P's accomplice in light of his assistance.153

Thus, in most cases an accomplice is a co-conspirator, and vice-versa. Sometimes, however, only one theory of complicity will apply.

[B] Rule of Conspiratorial Liability

According to the Supreme Court in...

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