§ 30.09 Model Penal Code

§ 30.09 Model Penal Code

[A] Forms of Liability

[1] In General

Under the Model Penal Code a person is guilty of an offense if he commits it "by his own conduct or by the conduct of another person for which he is legally accountable, or both."164 In other words, a person can be convicted of an offense if he personally commits the crime, or if his relationship to the person who commits it is one for which he is legally accountable. Three forms of accountability for the acts of others are recognized by the Code and are described below.

[2] Accountability Through an Innocent Instrumentality

The Code adopts the accepted principle that one is guilty of the commission of a crime if he uses an innocent instrumentality to commit the crime. A person (D) is legally accountable for the conduct of "an innocent or irresponsible person" (X) if he (D): (1) has the mental state sufficient for commission of the offense; and (2) causes the innocent or irresponsible person to engage in the criminal conduct.165

It should be observed that the Code is explicit where the common law is implicit: The innocent-instrumentality doctrine applies only if D causes X to engage in the conduct in question. Thus, this section does not apply merely because X is insane or otherwise "innocent or irresponsible." D must have done something to manipulate or otherwise use X, so that it may fairly be said that, but for D's conduct, X would not have engaged in the conduct for which D is being held accountable.

If D causes X, an innocent or irresponsible person, to engage in criminal conduct, D is responsible for X's conduct if, but only if, D possessed the mental state sufficient for the commission of the crime. For example, if D coerces X to have nonconsensual sexual intercourse with V, D is guilty of rape because he possessed the mental state required for that offense.166 Or, suppose that D provides his car to X, an insane person with a known "penchant for mad driving."167 If X proceeds to drive D's car in a dangerous manner, D may be convicted of reckless endangerment, on the basis of D's recklessness in providing the car to a known insane driver. However, if D is unaware of X's dangerous tendencies, D would not be guilty of reckless endangerment: He has caused X to engage in the conduct, but he does not possess the mental state (recklessness) sufficient for commission of the offense.

[3] Miscellaneous Accountability

A person may be held accountable for another person's conduct if the law defining an offense so provides.168 This provision is not of broad importance, but it does recognize that a legislature may wish to enact special laws of accomplice liability, as, for example, when it prohibits aiding and abetting a suicide attempt,169 or knowingly causing or facilitating a prison escape.170

[4] Accomplice Accountability

A person is legally accountable for the conduct of another person if he is an accomplice of the other in the commission of the criminal offense.171

Two features of accomplice liability should initially be observed. First, it is a form of liability independent of the innocent-or-irresponsible-person doctrine described in subsection [2], i.e., the rules of accomplice liability described below have no bearing on the situation in which a person uses an innocent instrumentality.

Second, accomplice liability is dependent on the relationship of the parties in the commission of a specific offense. In other words, if S is prosecuted for robbery because he allegedly served as P's accomplice, the issue that must be resolved is whether S was P's accomplice in that robbery, and not whether S was P's accomplice in the commission of some other crime or of crimes in general.

[5] Rejection of Conspiratorial Liability

The Model Code does not apply the Pinkerton172 doctrine of conspiratorial liability. That is, under the Code, a person is not accountable for the conduct of another solely because he conspired with that person to commit an offense. The liability of one who does not personally commit an offense must be based on one of the preceding forms of accountability. The drafters of the Code rejected the Pinkerton doctrine because they believed there was "no better way to confine within reasonable limits the scope of liability to which conspiracy may theoretically give rise."173

[B] Nature of an "Accomplice"

[1] Conduct

[a] In General

S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he: (1) solicits P to commit the offense; (2) aids, agrees to aid, or attempts to aid P in the planning or commission of the offense; or (3) has a legal duty to prevent the commission of the offense, but makes no effort to do so.174

[b] Accomplice Liability by Solicitation

S is an accomplice of P in the commission of an offense if he solicits P to commit the crime. The complicity section does not define the term "solicits." Rather, accomplice liability exists if S's conduct would constitute criminal solicitation, as that offense is defined elsewhere in the Code.175

[c] Accomplice Liability by Aiding

The Code dispenses with the many common law and statutory terms used to describe the conduct that may constitute assistance in the commission of an offense, and replaces them with the single word "aids." It should be observed, however, that in the Model Code, "soliciting" a crime is not a form of "aiding"; it is an independent basis for accomplice liability. This distinction can prove significant, as discussed in the next two subsections.

[d] Accomplice Liability by Agreeing to Aid

S is an accomplice of P if he agrees to aid P in the planning or commission of an offense. This requirement is met, for example, if S tells P that he will help to plan the commission of the offense, or if he agrees to provide P with an instrumentality for the commission of the crime, even if S does not fulfill his promise to aid. However, because this form of accomplice liability is based on "aiding," rather than "soliciting," S is not an accomplice of P merely because he agrees to solicit the commission of an offense but fails to do so.

This feature of the Code differs at least in form from the common law. In most cases, S's agreement to aid in the commission of an offense serves as encouragement to P and, therefore, functions as a basis for common law accomplice liability. The Code does...

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