Criminal Law Class Notes 12/8/03


People v. McCoy


What’s the problem that this case speaks to?  Why is it here?  The issue is whether an aider and abettor can be guilty of a higher offense than the actual perpetrator of the crime.  In this case, both defendants were initially convicted of first-degree murder.  McCoy is the triggerman, and Lakey is our accomplice.  What crime is McCoy arguably guilty of?  He was convicted of first-degree murder.  What’s the problem, though?  McCoy claimed imperfect self-defense, which on retrial could reduce McCoy’s offense to manslaughter.


At traditional common law, self-defense can only be claimed if there is a reasonable belief that, etc.  If your belief wasn’t reasonable, you have no defense at all.  However, in some states like California, if you unreasonably believed that you were subject to an unlawful deadly attack, you may have your charge knocked down from murder to manslaughter.  In some states, in other words, it’s not an all-or-nothing proposition.


The Model Penal Code § 3.04 in conjunction with § 3.09 says that if you have a negligent belief in self-defense, you would be guilty of negligent homicide, while if you were reckless about your belief, you could be convicted of “reckless homicide” – namely, manslaughter.


These two guys were tried together.  McCoy’s conviction has been overturned due to a bad jury instruction.  The Court of Appeal was of the belief that an accomplice couldn’t be convicted of a higher crime than the actual perpetrator.  Since they were tried together, Lakey had to have his conviction overturned, or so the theory goes.


How can it be that an accomplice can derive more liability than the perpetrator, like the Supreme Court of California says?  According to the court, what does the accomplice derive from the perpetrator?  The accomplice derives the actus reus of the crime from the actual perpetrator, but each individual’s mens rea will be “fed into the picture”.  It’s at least possible that the accomplice may have the mens rea for murder, whereas the actual perpetrator may have the mens rea for only manslaughter.


The court gives the “Othello” example.  Othello might kill Desdemona in the heat of passion, but Iago, who set him up, actually premeditated the killing.  Why should Iago get the benefit of the heat of passion defense when he’s calm, cool, and calculating?


Does this case stand for the proposition that if I’m the accomplice in a robbery or a rape or a larceny…does the same principle apply there as it does to a homicide?  No, they limit the scope of their ruling to homicide cases, not to other crimes.  They express no view on the application of these principles to other crimes outside the homicide context.


Recall the case of Hayes and Hill.  In that case, there was no mens rea on the part of the perpetrator, and therefore there was no crime.  In turn, Hayes could not derive liability from Hill.


But in this case, there is a crime because there is both mens rea and actus reus.  The perpetrator has a mens rea, and there’s a dead body.


California takes an approach that many states follow: in a homicide context, it is possible for an accomplice to be convicted of a higher degree of criminal homicide than the actual perpetrator.  Once you get outside the realm of homicide, it’s not so clear.


What this case stands for is the majority rule as it applies to criminal homicide.  However, you can’t assume that the rule will apply to non-homicide crimes.


Conspiracy liability


When we started our discussion of complicity, Dressler said that there were two kinds of ways a person could be held accountable for the actions of others:


1.     Accomplice liability

2.     Conspiracy liability

3.     “Innocent instrumentality” doctrine


Hopefully, with Pinkerton it will be clear why we need to keep these doctrines distinct.


In 99% of the cases where there is accomplice liability there is also conspiracy liability and vice versa.  Sometimes, it isn’t the case.  In a few cases, you can have accomplice liability but not conspiracy liability or vice



Pinkerton v. United States


The prosecutor did not claim accomplice liability in this case, but instead claimed conspiratorial liability.  What was it about the facts of this case that compelled the prosecutor to essentially concede that Daniel was not an accomplice of his brother’s crimes, but only a co-conspirator in the crimes?  It was the fact that Daniel was in jail the whole time the crimes had been going on.


Why is it that Daniel could have been an accomplice if he was out of jail, but he can’t because he is in jail?  In other words, why would his presence outside the prison probably make him an accomplice?  What is it about being in the prison that makes all the difference in the world to the accomplice liability aspects of this case?


If A and B agree that they’re going to violate the tax laws (conspiracy), why does that agreement between A and B also probably create accomplice liability just from the nature of the agreement?  It’s the encouragement!  It’s just the psychological feeling of “someone having your back”.  That can be enough to make you an accomplice.  If there’s any encouragement in having you on your side, it is eliminated by having your accomplice in jail where they can’t really psychologically encourage you in any meaningful way.  The prosecutor says, okay, we can’t do that, fine.  We’ll just get him on conspiratorial liability.


This is called the “Pinkerton principle”.  Lawyers often use a case name as a shorthand for talking about certain issues.  This case is known by all lawyers.


The second point is that even though this is a United States Supreme Court opinion, the Supreme Court wasn’t applying the Constitution in this case, rather, it was interpreting federal statutes.  Therefore, this case has no precedential importance to any state in this country.  It’s not an interpretation of the Constitution, it’s an interpretation of federal statutes.  States don’t follow federal law; they follow their own law.  However, most states apply this principle to their own law.  The Model Penal Code and most scholars, however, reject the Pinkerton principle.


Note 2, p. 770


What offenses were each person personally responsible for?  Then what about accomplice liability and conspiracy liability?


Say the jurisdiction in question uses relatively “normal” law as we know it, what crimes have been committed?


Solicitation merges automatically into later crimes.  A’s solicitation will merge into the conspiracy.


The crime of conspiracy does not merge into the completed crime.  A person can be found guilty of conspiracy to rob a bank and the completed robbery.


As a conspiracy gets bigger, the idea that one person may have been encouraged by others gets smaller.


It doesn’t surprise us that the “ringleader” has the most culpability even though they did the least stuff.


But who would be guilty under Pinkerton?  I think everybody would be guilty of everything…yep!  What’s the standard?  What’s the test?  What’s the rule under Pinkerton for when someone is guilty under conspiracy liability as opposed to accomplice liability?  If the crime was committed in furtherance of the conspiratorial objective, everybody is liable for that crime or if it is foreseeable that it would occur.


Every single crime committed in furtherance of the conspiracy or is a foreseeable consequence of the conspiracy will be the fault of all the participants in the conspiracy.  Zowie!


It’s clear that if anybody got killed during the robbery everyone would be guilty of murder.  But the main idea of Pinkerton is that everybody is guilty of everything!  This is a lot different than how it would come out with accomplice liability, where the “ringleader” would be more culpable than the “muscle”.


Kotteakos v. United States


There was a drug case with smugglers, middlemen, and retailers in New York and in Louisiana.  The retailers in New York and Louisiana then had their own “little guys” out on the street who were the real sellers to individual drug addicts.  There were hundreds of people in New York and Louisiana who were “continuing” in this conspiracy.  What that means under the Pinkerton doctrine is that every single sale by every single “little guy” seller is a crime for which everybody is guilty.  For example, all the crimes committed by the Louisiana retailers will be charged to the New York retailers too, both the little and big guys.  Each little guy is responsible for thousands of crimes under this doctrine.  Under traditional accomplice liability, it would be hard to find “assistance”.


Prosecutors like this!  Defense attorneys don’t like it.  I like it!


The Supreme Court accepts this.  The reality is that it is rare for the little guy in New York or Louisiana to actually be prosecuted for the thousands of crimes.  What prosecutors do is take advantage of the Pinkerton doctrine by threatening the little guys with the thousands of crimes in order to get them to turn on his higher-ups.  This doctrine is as much a threat as it is any reality.  However, this is a case where little guys were in fact prosecuted for cases that they really had nothing to do with.  Why did the prosecutor do this?  Dressler doesn’t know.  Maybe the prosecutor was utilitarian and thought they would be able to deter drug selling in the future.


The point is that Pinkerton gives prosecutors an immensely powerful weapon.  The Model Penal Code doesn’t buy into it, though.


To be a member of a conspiracy, you must know that there is a conspiracy and what the objectives of the conspiracy are.  You don’t need to know the members of the conspiracy, but you have to know that you’re in a group that’s up to something.


The Model Penal Code has another way of defining conspiracy, though we won’t worry about that.


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