Introduction

Attempt by Aiding Another

Introduction

Hal's situation falls between the two ordinary ways the criminal law reaches a defendant. Ordinary attempt asks whether the defendant himself moved toward committing the crime, for example by taking a substantial step in a course of conduct planned to culminate in his own commission of it.¹ Accomplice liability asks a different question: whether the defendant helped someone else who actually committed the offense. Each theory is anchored in a different person's conduct. Attempt needs the defendant's own movement toward his own crime, and complicity needs another person's completed crime on which to hang his liability. Hal has neither, because he never planned to burglarize anything himself and Rena never burglarized anything. His purpose is nevertheless as dangerous as that of a helper whose friend followed through, and the only difference between the two is a choice by Rena that Hal could not control after he had done everything he set out to do.

Model Penal Code § 5.01(3) closes that gap by treating the helper as an attempter. It provides that a person who engages in conduct designed to aid another to commit a crime which would establish his complicity under § 2.06 if the crime were committed by that other person is guilty of an attempt to commit the crime, "although the crime is not committed or attempted by such other person."² Subsection (3) is one working part of a larger section: subsection (1) defines attempt, subsection (2) lists conduct that may count as a substantial step, subsection (3) addresses aid, and subsection (4) supplies a renunciation defense.³ The provision is live law in jurisdictions built on the Code. In State v. LaTraverse, 443 A.2d 890 (R.I. 1982), the Rhode Island Supreme Court announced that it had "no intention of contributing one whit" to the preparation-attempt "quagmire," adopted the approach embodied in § 5.01, and reproduced the section's text, subsection (3) included.⁴ It also noted that the Second and Fifth Circuits and the Supreme Courts of Ohio and Washington had taken the same path.⁵

This is a Model Penal Code rule, and a jurisdiction that has not adopted it may reach a different answer on Hal's facts, since under traditional doctrine his unused help may be no crime at all. The lesson here follows that difference. It first explains why traditional complicity law leaves the gap open, then reads subsection (3) element by element, then separates it from the neighboring routes to liability, and finally asks whether a helper who changes his mind after acting can escape. The first step is to see exactly what accomplice liability requires and why Hal's tools, left unused on a porch, fail to meet it.