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Criminal Law - Outline Part 6

By Collin B. Hardee

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<< Part 5


  • NO Factual Impossibility: D would have been unable to commit the crime even if D had gone through w/ it DOES NOT prevent conviction of attempt – impossible to complete but can be attempt based on facts
      • Legal Impossibility: actor engages in lawful conduct that he believes is illegal
      • Legality Rule
  • Renunciation/Abandonment (few courts accept)
    • Must be voluntary
    • D must manifest “voluntary and complete renunciation of the criminal purpose”

Punishment – less than crime

  1. (Result Crime): Purposefully engage in the conduct that would be criminal in circumstances as D believes them to be (required mens rea of target offense); OR
  2. (Conduct Crime): does or omits to do anything w/ PURPOSE of causing or w/ the belief that it will cause such a result, w/o further conduct on his part; OR
  3. (Incomplete): purposely does or omits to do anything that, 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 crime

Actus Reus Test:

  • Substantial Step Test
    • Combination of “Proximity” and “Equivocality” test
    • Conduct meets the requirement if, under the circumstances as D believes them to be:
      1. There occurs “an act or omission constituting a substantial step in a course of conduct planned to culminate in D’s commission of the crime – substantial step corroborated w/ mental state evidence; AND
      2. the act is “strongly corroborative” of the actor’s criminal purpose
        1. Examples of Sub. Step:
          1. Lying in wait, searching for, following contemplated victim
          2. Reconnoitering the place contemplated for commission
          3. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
          4. Possession of materials to be employed, specifically designed for, or serve no lawful purpose
          5. Possess, collection of fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if has no lawful use
          6. Soliciting an innocent agent to engage in conduct constituting an element of the crime

Punishment – same as attempted offense b/c culpable state of mind



  1. Abandons or prevent it from occurring
  2. Conduct manifests complete/voluntary renunciation of criminal purpose

MPC: person is guilty if they agree to:

  1. Commit an offense;
  2. Attempt to commit an offense;
  3. Solicit another to commit an offense; OR
  4. Aid another in planning or commission


Merger – cannot be charged/convicted of BOTH attempted and completed crime


Merger – D who solicits another to commit a crime cannot be convicted of both solicitation and completed crime


NO MERGER – always can have whether act completed or not; “Prosecutor’s darling”

Accomplice Liability (Complicity) – Partnership in Doing Wrong; Intentionally Assists Another Person in Criminal Conduct Principal in 1st Degree

Actually engage in the act or commission that constitutes the criminal offense

Principle in 2nd Degree

Incites, aids, commands, encourages the Principal and is present, either actively or constructively at the time of the crime

  • PRESENT (aiding and abetting)
Accessory Before the Fact

Person who aids, abets, or encourages the principal but are not present at the crime

  • Aiding/Abetting BEFORE

NC collapsed three under NC Gen. Stat 14-5.2: abolished distinction between accessories before the fact and principals to the commission of a felony

  • If perpetrator is justified, then there is no accomplice liability b/c there is no crime
  • If perpetrator is excused, there may still be accomplice liability
  • Mental States:
    • Must possess BOTH:
      • Intent to do an act that help assist/encourage the crime
      • Intent to assist in the crime but doesn’t have to be physical (encouragement)(gun used in crime)
  • Accomplice liability is generally liable for all crimes that are reasonably foreseeable result of contemplated crime
  • Aid must impact upon actual perpetrator but doesn’t have to be necessary for successful commission; nor does perpetrator have to be aware of assistance UNLESS it’s encouragement by accomplice
  • Accomplice can be convicted of any crime that the primary party is guilty of that is a direct result of their intentional assistance
  • Punishment is SAME as for the crime accomplice to
  • Mere presence alone is not enough, but mere presence w/ very little else will be enough


  • Withdrawal/Abandonment: MUST take place before the events are unstoppable
    • Must communicate that doesn’t want to continue anymore
    • Need to take back the instrumentality
    • Tell the police in order to prevent crime
Accessory After the Fact

Person who assists principal after the crime

  • Aiding/Abetting AFTER
  1. Felony was committed by another person AND
  2. After felony committed, the person knowingly gave the principal person assistance in escaping or attempting to escape detection, arrest, or punishment
  3. Knowing that the principle committed the crime
MPC Accomplice Liability


  • Principal – acting w/ requisite mens rea, actually engaging in the act or omission that causes the crime, or acts through an irresponsible or innocent agent (Innocent Instrumentality) to commit the offense
  • Accomplice – incites or abets w/ requisite intent before or during the commission of the offense. Includes solicitation and omission when a duty is present

Mens Rea

  • PURPOSEFULLY promote or facilitate in the commission of a crime – MUST act w/ culpability sufficient for the commission of the offense
  • NOTE: in jurisdictions w/ felony murder, it makes an accomplice in the conduct (underlying felony) strictly liable for the resulting death b/c he had the requisite mens rea as to the result
  • NO actual assistance for accomplice liability is necessary – agreement to aid is enough
  • Accomplice can be convicted even if the perpetrator has not yet been prosecuted, has been convicted of lesser crime, has been acquitted, or is lying
  • DOES NOT recognize the natural and probable consequence rule
  • INCLUDES the crime of attempt to aid and abet


  • Protected Class Exemption: underage girl in statutory rape – can’t be accomplice in crime that law was made to protect
  • Abandonment: An accomplice may abandon a conspiracy and thereby eliminate accomplice liability. In order to do so, the accomplice must generally 1) notify the principal that he or she is withdrawing from the conspiracy and 2) take some action to neutralize whatever steps he took to assist in the crime.
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