Concept
Reading Subsection (3)
Attempt by Conduct Designed to Aid Another
Reading Subsection (3)
Subsection (3) of Model Penal Code § 5.01 is the provision written for the helper whom complicity law cannot reach. It makes a person guilty of an attempt to commit a crime when the person engages in conduct designed to aid another to commit it, provided the crime is one that would establish the person's complicity under § 2.06 if the other person committed it. It imposes that liability although the other person neither commits nor attempts the crime.1 Those words contain three working parts: the helper's conduct and the design behind it, a hypothetical standard borrowed from the law of accomplices, and a clause that makes the other person's behavior irrelevant. Each part answers one of the failures that appeared when complicity was examined at common law.
The common-law results frame the problem. Sadie, who unlocks Roger's door to ease Paul's burglary, is not an accomplice when Paul climbs through a window, because her help never assisted him.2 The defendant in People v. Genoa, who delivered $10,000 to an undercover agent for what he believed was a cocaine purchase, could not be convicted on an aiding theory because the agent never committed the contemplated offense.3 Each helper had a complete criminal purpose and had done something about it, and each escaped because accomplice liability depends on what someone else does. Subsections (1) and (2) describe a defendant who is trying to commit the crime personally, one who takes a substantial step in a course of conduct planned to culminate in his own commission of it.4 Subsection (3) describes a defendant whose plan is to help someone else commit the crime, and it measures that defendant by the defendant's own purpose and conduct.
Steps one and two belong to the first part of the text, step three to the second, and step four to the third. The step that most often goes wrong is the third, because it is tempting to ask whether the other person committed the crime when the text asks whether the defendant would be an accomplice if the other person had. The sections below take the parts in order.
Conduct Designed to Aid
The first requirement has two pieces. The defendant must engage in conduct, and the conduct must be designed to aid another person to commit a crime.5 The first piece follows the general premise of attempt law that guilty intentions alone go unpunished and that the offense attaches to acts furthering a criminal objective.6 A wish that a friend's burglary will go smoothly, or a plan to unlock a door at some later time, is a state of mind, and subsection (3) asks for something the defendant did. The second piece directs attention to the aim of the act. The operative word is designed, and it marks the departure from the common-law rule that aid must in fact assist the principal.7
Because designed looks to what the conduct was built to accomplish, the measure is the defendant's own purpose rather than the result. Sadie's unlocked door was designed to make Paul's entry easier whether or not Paul ever touched it, and the same is true of the $10,000 that the Genoa defendant delivered to a person he believed would use it to buy cocaine for resale.8 Under the common-law rule each helper's liability turned on a fact outside the helper's control: which way Paul chose to enter, and whether the other participant was a genuine trafficker or an officer. Subsection (3) removes those facts from the analysis and makes the helper's own act and aim the measure of liability. That is why a complete purpose joined to a completed act is enough even when the help goes nowhere.
The pair shows the two ways the first requirement can fail. In the first variation the aim exists but no conduct carries it out. In the second the conduct exists but no aim to help a crime stands behind it. Only when an act and an aim to aid another's crime coincide, as they do when Sadie unlocks the door for Paul's benefit, does the defendant satisfy the first part of the text.
The Section 2.06 Test
The second requirement ties attempt liability to the law of accomplices. The crime must be one that would establish the defendant's complicity under § 2.06 if the crime were committed by the other person.10 The test is hypothetical, and the hypothesis does the work that a missing principal offense could not do earlier in this chapter: complicity needs a committed offense to attach to, so subsection (3) tells the court to assume one. Section 2.06(1) makes a person guilty of an offense committed by the conduct of another for which the person is legally accountable,11 and the question under subsection (3) is whether, in a world where the other person did commit the crime, the defendant would be accountable for it.
Accountability in that imagined world depends on the Code's definition of an accomplice. A person is an accomplice if, with the purpose of promoting or facilitating the commission of the offense, the person 'aids or agrees or attempts to aid' the other person in planning or committing it.12 Two features of that wording shape the test. The purpose requirement means the helper must want the crime to succeed, so a person whose conduct happens to further a crime without that aim is excluded. The accomplice definition also counts an attempt to aid, so the standard that subsection (3) borrows does not itself demand that the help reach the principal, and failed help such as Sadie's unused door satisfies it easily.13 Whether that same wording would let a helper like Sadie be convicted of the completed burglary itself, when Paul does commit it, is a further question that the attempt provision makes unnecessary to resolve here.14
The reason to borrow § 2.06 rather than write a separate standard is that the borrowing sets a ceiling. A helper who would not be an accomplice if everything had gone as planned is not an attempter merely because something went wrong, so attempt liability under subsection (3) can never exceed the liability the helper would have borne had the crime succeeded. A freestanding standard would have to define aid and intent a second time, and any gap between it and § 2.06 would create a class of people punishable for failed help who would go free for successful help. Tying the two together keeps subsection (3) from becoming a looser, second form of complicity.
Applied to the earlier helpers, the test is met. Assume Paul walks through the unlocked front door: Sadie acted with the purpose of facilitating the burglary and her act made entry easier, so she would be an accomplice.15 Assume the other participant in Genoa had been the genuine trafficker the defendant believed him to be, who bought and possessed the cocaine with intent to deliver: the defendant, intending that result and furnishing money toward it, would satisfy each element of aiding and abetting.16 The test is met in both cases although no such completed offense existed in the real events.
Crime Need Not Occur
The last clause of subsection (3) says that the helper is guilty of attempt although the crime is not committed or attempted by the other person.18 This clause closes the gap into which the Genoa defendant fell. Complicity at common law needed a completed principal offense, and a defendant's belief that a crime was underway could not stand in for the crime itself. The second element already supplies the principal's act by hypothesis, and the although clause confirms that nothing in the real world has to match the hypothesis. Liability rests on the helper's own purpose and conduct, so it makes no difference whether the other person changed their mind, never began, could not be convicted, or was an undercover officer who never meant to commit the crime.
The same reasoning reaches the facts of State ex rel. Martin v. Tally, where the defendant sent a telegram designed to keep a warning from reaching the man whom the Skeltons meant to kill. Had the Skeltons abandoned their plan after the telegram, no killing and no attempted killing would exist for the defendant to be an accomplice to, and the clause points toward attempted murder as his own offense.19 The provision was designed for exactly that result: it punishes aid that would constitute complicity if the crime were committed, matching the treatment of encouragement, so that the unsuccessful encourager is no longer punished more severely than the unsuccessful aider.20 About a dozen states have incorporated the provision, Arizona and New Jersey among them.21
The clause describes the case in which the other person does nothing criminal, but it does not demand that case. Where the other person does commit the crime and the helper's aid simply goes unused, as when Paul burgles through the window, statutes built on § 5.01(3) treat the helper's bungled attempt to aid as an attempt to commit the substantive crime.22 Students lose points when they treat attempting to aid as if it were aiding an attempt. When the other person actually attempts the crime and the helper's aid is used, the helper is an ordinary accomplice to that attempt, held accountable for the other person's offense under § 2.06(1).23 A principal offense exists in that situation, namely the attempt, and complicity attaches to it in the usual way. Subsection (3) is needed when there is no such offense to attach to, and then the helper answers for the helper's own attempt.
Sadie and Genoa Under (3)
The two helpers who escaped at common law can now be run through the whole subsection. Sadie's unlocking of the door is conduct, and it was designed to aid Paul's burglary. Had Paul used the door she would have been an accomplice, because she acted with the purpose of facilitating the burglary and her act would have eased his entry. Whether Paul used the window, used the door, or abandoned the plan is immaterial under the although clause. Sadie is therefore guilty of attempted burglary in a jurisdiction that follows subsection (3), which is the answer that the common-law rule withheld.25
The Genoa defendant comes out the same way. Delivering the $10,000 was conduct, and it was designed to aid the agent's supposed purchase of a kilogram of cocaine for resale. Had the agent been the trafficker the defendant believed him to be, the defendant would have been an aider and abettor of possession with intent to deliver. That the agent was an undercover officer who never intended the crime and never committed it is exactly what the although clause makes immaterial. The court observed that the prosecution's only available theory was that the defendant attempted to aid and abet the possession offense,26 and that theory is the very conduct subsection (3) makes a crime. The reasoning that defeated the charge, that the defendant financed nothing because no one committed the crime, would not defeat it in a jurisdiction that has adopted the subsection.
The comparison also marks the limits of the rule. Subsection (3) adds no liability for a helper who has only a plan, and none for a helper who would escape complicity even if the crime had succeeded. What it removes is the dependence of the helper's guilt on a fact the helper does not control, namely what the other person does.
Conduct Designed to Aid
The first element of subsection (3) has two parts, and a defendant can fail either one without touching the other. The defendant must engage in conduct, and that conduct must be designed to aid another person to commit a crime.28 The word designed is where the subsection leaves the common-law accomplice rule behind. At common law an accomplice had to in fact assist the principal, and Sadie's unlocked front door failed that test because Paul entered through a window, unaware of what she had done.29 Subsection (3) asks instead what the defendant's act was built to accomplish, and it asks that question about an act the defendant actually performed.
The conduct half comes first. Attempt law in general punishes acts that further a criminal objective and leaves bare intention alone, and each form of attempt in § 5.01(1) is written around something the defendant purposely does or omits to do.30 The reason is practical as well as principled. Without a required act, liability would rest entirely on testimony about what a person was thinking, and someone who merely hoped a friend's crime would succeed, or who meant to lend a hand at some later time, could be convicted on an accusation that is very hard to test. An act gives the purpose something observable to attach to. A defendant who has announced an intention to help later, and has done nothing yet, has a plan and a wish, and subsection (3) has nothing to operate on.
The design half moves the inquiry from the act to its aim. Because designed looks to what the conduct was built to accomplish, the measure is the defendant's own purpose at the time of acting, and the effect of the act on the other person drops out. That is a real change even from a common law that was generous about the amount of aid. In State ex rel. Martin v. Tally the court held that assistance need not be a but-for cause of the crime and that it is enough if the aid makes the principal's task easier.31 That generosity extended to how much help was given, not to whether any help occurred, which is why Sadie escaped. The Model Penal Code's treatment of accomplices already points the other way, because it counts a person who attempts to aid as an accomplice, so any effort at aid, even one that is ineffective or unknown to the other person, satisfies the act side of complicity.32 Subsection (3) carries that same view into attempt, so aid that never reaches the principal and is never used can still be conduct designed to aid.
The facts of People v. Genoa show the design half at work on a defendant whose aid could not possibly have succeeded. The defendant agreed with an undercover agent to put up $10,000 toward a kilogram of cocaine that the agent said he would resell, and he returned with the money.33 The trial court dismissed the charge because the agent never intended the crime and never committed it, so the defendant, though he believed he was funding a drug deal, financed nothing, and the Michigan Court of Appeals affirmed.34 Delivering the money was nonetheless conduct designed to aid. It was built to put cash behind a drug purchase, and that design was the same whether the agent was a genuine trafficker or a police officer.
The two halves guard against different problems. The conduct half preserves the act requirement, as explained above. The design half separates a purposeful helper from someone whose act merely turned out to be useful. Ordinary acts such as lending a tool, selling a product, or leaving equipment in place are routinely put to criminal use by people the actor never meets, and if usefulness were the test, each of those acts would become an attempt at whatever crime a stranger later committed. Design tests what the actor was trying to do, so the person who aims to promote a crime is reached and the bystander whose property was borrowed is not. Leaving success out of the test also removes a fortuity. Whether Sadie goes free should not depend on which entrance Paul chose, and whether the Genoa defendant goes free should not depend on whether his counterpart was a trafficker or an officer, because neither fact changes what the defendant did or meant. The Code accordingly treats the question of how much aid is enough as one of proof: has the defendant done enough to persuade a jury that he acted with the purpose of aiding the crime, even if the help achieved nothing?35
The three variations isolate the fact that moves the answer. The ladder and the window are the same, and a burglar could climb the ladder in any of them. In the first, an act and an aim to help a crime coincide. In the second, an act exists with no such aim, and in the third, an aim exists with no act. Students lose this element when they ask whether the act turned out to be useful to a criminal, because usefulness is not the question. The question is what the actor meant the act to do. The unused ladder satisfies the element, and the painter's ladder does not, even if a burglar climbs it. Meeting this element still leaves the second one, which asks whether that purpose would also make the defendant an accomplice if the other person committed the crime.
The Section 2.06 Test
The second element of subsection (3) does not define for itself who counts as a culpable helper. It sends the reader to § 2.06, the Model Penal Code's complicity provision, by requiring that the defendant's conduct be designed to aid a crime that would establish the defendant's complicity if the other person committed it.37 That cross-reference works as a ceiling. Attempt by aid can be no broader than complicity would have been had the plan succeeded, so a helper who would walk away from a completed burglary as an innocent bystander cannot be convicted of attempting to aid it. The ceiling is necessary because the first element already lets liability attach to aid that fails. If the second element also loosened the standard for culpable helping, an unsuccessful helper could be convicted on facts that would acquit a successful one, and failure would be punished more heavily than success.
The test is a hypothetical, and it is run by imagining the crime completed. Whatever happened in the real world, assume that the other person committed the offense, and then ask whether the defendant's conduct and state of mind would make the defendant legally accountable for that person's conduct. Section 2.06(1) supplies the entry point, since it makes a person guilty of an offense committed by the conduct of another person for which the first person is legally accountable.38 Accountability as an accomplice, in turn, requires that the defendant act with the purpose of promoting or facilitating the offense and that the defendant solicit the other person to commit it, or aid, agree, or attempt to aid in planning or committing it.39 Because that definition reaches a person who merely attempts to aid, the imagined accomplice need not have given help that worked, which is why aid that is never used can still pass the test. The phrase that carries the weight is the opening one, the purpose of promoting or facilitating the offense, and most of what follows concerns it.
The mental state that the test imports has two layers, and each answers a different question. The first concerns the helper's attitude toward the other person's conduct: the helper must have as a conscious objective that the other person engage in the conduct constituting the crime, and knowing that the conduct will occur does not substitute for that objective under the Code.40 The Code's own definition explains the demand, because a person acts purposely when it is the person's conscious object to engage in conduct of a given nature or to cause a given result.41 The second layer concerns any result the crime requires, such as an injury or a death. As to the result, the helper need not want it; the helper needs the culpability that the underlying offense itself demands.42 The commentary to § 2.06 treats subsections (3) and (4) as a pair, with the first defining the conduct for which an accomplice answers and the second evaluating the accomplice's own mental state toward a resulting harm separately from anyone else's.43
An Alaska decision shows the two layers working together. In affirming Riley's two convictions for first-degree assault, the court explained that Riley could be convicted as an accomplice on proof that Riley acted with intent to promote or facilitate Portalla's act of shooting into a crowd and solicited, encouraged, or assisted that act, while the mental state toward the injuries remained what the assault statute itself required, which was recklessness as to serious physical injury, the same for an accomplice as for a shooter.44 The helper's purpose attaches to the principal's conduct, and the helper's culpability toward the harm is borrowed from the offense. A person who wants the conduct and shares the required culpability toward its consequences is an accomplice, and a person missing either layer is not.
The insistence on purpose rather than knowledge follows from what inchoate liability punishes. In United States v. Bailey the Court described the Code's hierarchy of culpable states, in which acting purposely means consciously desiring a result while acting knowingly means being aware that the result is practically certain, and it observed that the law of inchoate offenses such as attempt and conspiracy is one of the narrow areas where a heightened mental state separates criminality from otherwise innocuous behavior.45 The same reasoning protects the ordinary seller. A vendor, lessor, or shopkeeper deals daily with customers whose uses of the goods are beyond the seller's control, and a standard of mere knowledge or foreseeability would turn every such sale into an attempt at whatever crime a customer later committed or abandoned. The commentary to § 2.06 frames the difficulty directly: it asks whether knowingly facilitating a crime should suffice absent a true purpose to advance it, observes that aid given with guilty knowledge often implies purpose because it has no other motivation, and identifies the vendor who sells knowing the goods will be used in a crime as a case where the question becomes central.46 The Code resolves the question for accomplices by demanding the purpose of promoting or facilitating the offense.47 Knowledge therefore remains evidence from which a factfinder may infer purpose when the aid has no other explanation, but the inference must reach purpose itself.
Decisions on ordinary aiding and abetting describe the same state of mind in everyday terms. Rosemond v. United States applies federal aiding and abetting law rather than the Code, but it describes a closely similar demand: the aider must intend to facilitate the offense, the intent must reach the specific and entire crime charged rather than some different or lesser one, and the classic formulation asks whether the defendant participates in the venture as something the defendant wishes to bring about and seeks by action to make succeed.48 The Supreme Court also reasoned that a person who actively participates in a criminal scheme knowing its extent and character intends the scheme's commission, as with an unarmed getaway driver who knew the confederates would use weapons.49 That reasoning shows how purpose is proved, since active membership in a venture of known scope is strong evidence of wanting the venture to succeed. It does not lower the element for a supplier whose only link to the crime is a sale or loan made in the ordinary course of business.
The variations isolate what moves the answer. The tools, the customer, and the burglary stay constant across the clerk versions, yet the result depends on what the helper wanted. A helper whose aid is never used can be liable, as Priya is, while a seller whose goods would have been used in a burglary can escape, as the clerk does in the first version. Students lose this element when they treat foreseeable misuse as if it were the purpose of promoting the crime.
Step three does the real work in nearly every problem, because the conduct and result steps are usually straightforward once the facts name the crime and the act. The facts that bear on step three are those showing what the helper wanted, such as encouragement, participation in planning, or aid with no use apart from the crime.
Crime Need Not Occur
The last clause of subsection (3) removes any requirement that something happen on the principal's side. The subsection makes the helper guilty of attempt "although the crime is not committed or attempted by such other person."51 Under traditional complicity law the helper's liability is derivative, meaning it holds the helper responsible for an offense someone else committed, so when no one commits the offense there is nothing for the helper to answer for. That is the gap described earlier, and this clause is the part of subsection (3) that closes it. The other person need not finish the crime, need not begin it, and need not even learn of the help. The § 2.06 test explains how the clause can work: because that test is a hypothetical, the imagined completed crime stands in for the real one that never happened, and what must be proved is the helper's own conduct and purpose.
The reason for dropping the requirement lies in who controls it. Whether the other person goes forward depends on that person's nerve, skill, or change of heart, and the helper controls none of those. None of them reveals anything about the helper either, who has already done what the helper set out to do by acting with the purpose of promoting the crime. A rule that punished the helper only when the principal happened to act would make liability turn on a stranger's later choice, and two helpers with identical conduct and identical purpose would be treated differently because of it. The clause treats them alike by resting liability on what each helper did and meant.52
This choice fits the Code's wider approach to attempt, which looks to the actor's purpose and not to how events turned out. The drafters described the aim of their attempt provisions as sweeping aside the impossibility defense so that the crime becomes essentially one of criminal purpose implemented by an act that strongly corroborates it.53 People v. Dlugash applied the same orientation under New York's statute, which follows the Code's approach: Dlugash fired about five shots at Geller's head and face after Bush had already shot Geller, so Geller may have been dead, and the court explained that if Dlugash believed Geller alive, the possibility that Geller was in fact dead was no defense to attempted murder.54 A missing principal is a fact of the same kind as a dead victim, because it is a circumstance in the world that the actor did not control and that leaves unchanged what the actor meant to do. The defendant in People v. Genoa fits that pattern: he handed over $10,000 toward a cocaine purchase with an undercover agent who never intended to carry it out, and under subsection (3) what matters is what he meant to accomplish and what he did toward it, not whether the agent across the table was a real dealer.55
Variations on the Tally problem show the clause working on a different pattern. Tally sent a telegram meant to stop a warning from reaching Ross, whom the Skeltons were seeking to kill. In the variation where the warning is sent anyway and the Skeltons, after Tally's telegram, change their minds and make no attempt on Ross, no one has committed or attempted a homicide. Tally's telegram was still conduct designed to aid if he sent it to help the killing succeed, and had the Skeltons killed Ross, Tally would have been an accomplice. Subsection (3) therefore makes him guilty of attempted murder, because it equates attempted complicity with an attempt to commit the substantive crime.56 The equation also keeps the unsuccessful aider from being punished less than the unsuccessful encourager. Solicitation under § 5.02 already reaches encouragement that would establish complicity if the crime were committed, and without subsection (3) the encourager who failed would face heavier liability than the aider who failed.57 A later section returns to the line between solicitation and aid.
The clause matters at only one end of a range of cases. When the other person completes the crime, the helper who tried to aid is an accomplice in that crime under § 2.06, because the Code covers even an attempt to aid on the view that attempted complicity ought to be criminal and that distinguishing it from effective complicity is unnecessary once the crime has been committed.58 When the other person only attempts the crime, the attempt is itself an offense, so a helper who aids it is an accomplice to that attempt and needs no help from subsection (3). The clause does independent work only where the other person neither commits nor attempts, because that is where complicity has no offense to attach to.59 Even there, the clause relaxes a single requirement, the one about the principal, and leaves the helper's own conduct designed to aid and the § 2.06 hypothetical exactly where the earlier elements put them.
The first two versions look the same from Paul's side, since Paul does nothing in either, and they come out differently because the difference lies with the helper: one helper delivered and the other never did. Paul's inaction therefore decides nothing in either direction. The third version shows the opposite pole, where Paul goes forward, the clause is idle, and ordinary complicity governs. Students lose this clause when they treat the other person's inaction as a defense, which rebuilds the common-law requirement that subsection (3) was written to remove. A second error runs the other way and reads the clause as excusing the helper from acting at all, when the clause relaxes only the requirement about the principal.