Introduction

Liability for Another's Conduct

Introduction

Criminal offenses are usually defined in terms of what one person does, yet harm often follows from a joint effort. The person who fires the shot or carries off the property is easy to identify. Someone else may have driven the getaway car, handed over the tool that made the entry possible, or talked the actor into going through with it. The law needs a principled way to decide when that second person answers for the first person's conduct, and the Model Penal Code supplies the answer in § 2.06(1). A person is guilty of an offense if it is committed by his own conduct, by the conduct of another person for which he is legally accountable, or both.¹ The text creates two channels of guilt: direct accountability, which rests on what the defendant did, and indirect accountability, which rests on someone else's conduct that the law attributes to the defendant.² Because the two channels can run together, a defendant who plans a crime and also helps carry it out is guilty on both bases at once.

The Code reaches this result by discarding the vocabulary that common-law courts used to sort participants. Under the older scheme a participant was a principal in the first degree, a principal in the second degree, or an accessory before the fact, and the label mattered to how the case was charged and proved. The Code sets those definitions aside and treats every participant as an equal, except one who becomes involved only after the offense is complete, whom it handles through a separate offense.³ In place of labels it asks two questions: whose conduct satisfied the definition of the offense, and is the defendant accountable for that conduct? The drafters wanted criminal liability to rest on conduct, whether the defendant performed it personally or someone else performed it and § 2.06 attributes it to the defendant.⁴ A defendant who is accountable in this way is guilty of the substantive crime itself and punishable accordingly.⁵ Section 2.06 therefore creates no freestanding crime of helping. It supplies a rule of attribution, and the definition of the offense charged, whether burglary, homicide, or theft, continues to supply the elements that the attributed conduct must satisfy.

Section 2.06 works as one integrated provision, with later subsections building on the principle announced in the first.⁶ Subsection (2) answers the second question by naming three gateways to accountability. The defendant, acting with the culpability the offense requires, may cause an innocent or irresponsible person to engage in the conduct. The Code or the law defining the offense may itself make the defendant accountable for the other person's conduct. Or the defendant may be an accomplice of the other person in committing the offense.⁷ Each gateway rests on a different theory of why another's act should count as the defendant's. The third is given its content by the definition of accomplice in subsection (3), which generates the most doctrine and so receives the longest treatment here. This chapter takes the gateways in the order the statute lists them, then turns to the mental state and conduct that make a person an accomplice and to the limits on accomplice status. Every analysis of this kind begins with one question: through which gateway in subsection (2) is the defendant accountable for what the other person did?