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3.1 Introduction to Vicarious Liability
Revised to December 1, 2007
Accessorial liability and Pinkerton liability
In Pinkerton v. United States,
328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.2d 1489 (1946), the U.S. Supreme Court held
that when parties are found to have entered into a conspiracy, each of them may
be convicted of substantive crimes committed by any of them as long as the
offenses were committed in furtherance of the conspiracy. "[A]s long as the
partnership in crime continues, the partners act for each other in carrying it
forward. It is settled that an overt act of one partner may be the act of all
without any new agreement specifically directed to that act." (Internal
quotation marks omitted.) Id., 646-47. This principle of vicarious liability
was adopted by the Connecticut Supreme Court in State v. Walton, 227
Conn. 32 (1993).
Pinkerton liability and accessorial liability both allow conduct to be imputed to the defendant. They differ with respect to the mental state required. State v. Martinez, 278 Conn. 598, 615 (2006). Unlike coconspirator liability under Pinkerton, which is "predicated on an agreement to participate in the conspiracy, and requires the substantive offense to be a reasonably foreseeable product of that conspiracy, . . . accessorial liability . . . requires the defendant to have the specific mental state required for the commission of the substantive crime." Id. Because all of the elements of a crime, including intent, must be proved regardless of whether the defendant is charged as a principal or an accessory, there is no requirement that the jury be unanimous as to principal or accessory. State v. Martinez, supra, 278 Conn. 615-16; State v. Correa, 241 Conn. 322, 398 (1997).
The overlapping intent requirement also means that aggravating circumstances apply equally to an accessory. State v. Davis, 255 Conn. 782 (2001) (use of firearm under General Statutes § 53-202k). Because a coconspirator charged under Pinkerton does not need to have the requisite mental state required for the crime committed by another coconspirator, aggravating circumstances that may apply to the conspirator who committed the crime cannot be applied to the conspirator charged under Pinkerton. State v. Patterson, 276 Conn. 452 (2005).
Because of the "conceptual distinction" between these two types of liability, if a case is presented to the jury in the alternative, i.e., the defendant is criminally liable for the crime either as a principal or accessory or as a coconspirator, the court must instruct the jury that its verdict must be unanimous as to whether the defendant is guilty as 1) either principal or accessory or both or 2) guilty as a coconspirator. State v. Martinez, supra, 278 Conn. 619-20.
Accessorial liability and
conspiracy
A defendant may be convicted of
conspiracy to commit a crime and the commission of that crime as a principal or
accessory. "Acting as an accessory to a crime and conspiring to commit a crime
. . . are not the same acts. One condemns giving intentional aid to
another who engages in unlawful conduct, while the other condemns the act of
agreeing to engage in criminal conduct." (Emphasis in original.) State
v. Green, 81 Conn App. 152, 158, cert. denied, 268 Conn. 909 (2004) (sale of
narcotics and conspiracy to sell narcotics); State v. Soto, 59 Conn. App.
500, 503-505, cert. denied, 254 Conn. 950 (2000) (not inconsistent for defendant
to be convicted of murder as accessory and acquitted of conspiracy).