Accomplice Liability & Inchoate Crimes
Liability before—and beside—the completed crime. Three inchoate offenses, one helper doctrine, and a merger rule that sorts out what survives conviction.
Accomplice liability
An accomplice aids, encourages, or counsels the principal with (1) intent to assist and (2) intent that the crime be committed. Liable for the target crime AND all foreseeable crimes committed in its course. Mere presence—or knowledge without a stake (the ordinary shopkeeper selling supplies)—isn't enough.
Withdrawal: an encourager must repudiate the encouragement; an aider must neutralize the assistance (or call the police)—all before the crime becomes unstoppable. Protected-class members (the buyer in a statutory sale crime) and those whose conduct is inevitably incident can't be accomplices. Accessory after the fact is a separate, lesser offense—help given only after completion, to hinder capture.
Liv drives Noodle to the bank knowing he'll rob it and waits outside—accomplice to robbery, and to the guard's foreseeable shooting. Rosa, who merely sold Noodle a ski mask at her shop, is not. Lana, who hides Noodle in her attic afterward, is an accessory after the fact only.
The three inchoate crimes
| Crime | Elements | Merger? |
|---|---|---|
| Solicitation | Asking, urging, or commanding another to commit a crime, intending they do it—complete on the asking, even if refused | Merges into conspiracy, attempt, or the completed crime |
| Conspiracy | Agreement + intent to agree + intent to achieve the objective + (majority/MPC) an overt act—any little step | Never merges—conspiracy AND the completed crime both stand |
| Attempt | Specific intent + a substantial step beyond mere preparation (common law: dangerous proximity) | Merges into the completed crime |
Rosa asks Liv to torch the rival café—solicitation, complete even when Liv says no. Liv agrees and buys a gas can—conspiracy (agreement + overt act). Liv is arrested pouring gasoline at the back door—attempt. If the fire gets lit, the attempt and solicitation fold into arson; the conspiracy conviction stands alongside it.
Conspiracy's special machinery
Each conspirator is liable for co-conspirators' crimes that are (1) in furtherance of the conspiracy and (2) foreseeable—even without aiding them. Broader than accomplice liability, and the MBE's favorite way to convict the lookout of everything.
- Bilateral (common law): two genuine parties—feigning undercover agent = no conspiracy
- Unilateral (MPC/modern): one genuine agreer is enough
- Wharton's rule: crimes needing two (dueling, bribery)—no conspiracy without a third
- Chains vs. wheels: one big conspiracy or many small ones—matters for who's on the hook
- Withdrawal never undoes the conspiracy itself (the crime was complete at agreement + act)
- Communicated withdrawal cuts off Pinkerton liability for future crimes
- MPC only: renunciation defense if the withdrawer thwarts the plot
Lana joins the heist as the driver, gets cold feet, and tells the crew she's out the night before—still guilty of conspiracy, but not of the robbery Noodle commits the next day. Silence instead of a phone call, and Pinkerton hands her the robbery too.
Attempt's line-drawing
Attempt needs specific intent—always, even for crimes like depraved-heart murder that don't (no “attempted depraved-heart murder,” no attempted felony murder). The act must pass preparation: casing plus tools plus approach usually crosses; buying a map doesn't.
Impossibility: factual impossibility is no defense (the gun jams, the pocket is empty, the “drugs” are powdered sugar). True legal impossibility—what was intended isn't a crime at all—is. Abandonment: no defense at common law once a substantial step is taken; MPC allows full, voluntary renunciation.
Noodle picks Liv's pocket and finds it empty—attempted larceny, factual impossibility saves no one. Rosa “smuggles” what she believes is contraband sugar that's actually… legal sugar she thought was legal? Nothing intended was criminal—legal impossibility, no attempt.
Where the points are
The traps examiners actually set.
- Most tested
- Conspiracy not merging; Pinkerton foreseeability; withdrawal's two different effects; attempt's specific-intent requirement; factual vs. legal impossibility.
- Classic traps
- Mere presence or mere knowledge as “aiding”; convicting of both attempt and the completed crime (merger); the undercover-agent “conspiracy” in a bilateral state; attempted felony murder (doesn't exist); solicitation surviving alongside the completed offense (it merges).
Keep going: Accomplice MEE guide Criminal Law Attack Sequences Homicide deep dive