Concept

Other Routes to Liability

Attempt by Conduct Designed to Aid Another

Other Routes to Liability

Subsection (3) is one of several ways the Model Penal Code reaches a person whose criminal plan did not end in a completed crime, and an exam fact pattern rarely announces which provision applies. Section 5.01 itself holds the nearest neighbors: attempt to commit one's own crime under subsection (1), the substantial-step limit in subsection (2), and, within that limit, a listed step for soliciting an innocent agent.¹ Beyond § 5.01 lie solicitation under § 5.02 and statutes that make assisting a crime an offense in itself. Each route asks a different question about the defendant: how far the defendant has moved toward committing the crime personally, whether an unwitting person was used to do it, whether the defendant tried to induce another person to act, or whether the defendant did something designed to help another succeed. Keeping the routes apart tells a prosecutor which elements must be proved and tells a defendant which defenses are in play, a point that returns when this chapter reaches renunciation. The four contrasts below take the routes one at a time, beginning with the one closest to ordinary attempt.

Attempting Your Own Crime

Ordinary attempt is the nearest neighbor of subsection (3), and the two differ in whose crime is being pursued. Under subsection (1)(c), a person is guilty of attempt who purposely does or omits to do anything that, under the circumstances as the person believes them to be, is a substantial step in a course of conduct planned to culminate in the person's own commission of the crime.² Subsection (2) adds a filter, because conduct does not count as a substantial step unless it is "strongly corroborative of the actor's criminal purpose."³ Together these place the threshold at a substantial step rather than at the final act, which moves liability well back from the point of completion.⁴

Subsection (3) differs on two points. The crime belongs to someone else, so the defendant is not planning to commit it and has no planned commission against which a step could be measured. Liability depends instead on whether the conduct was designed to aid and whether it would have made the defendant an accomplice under § 2.06 had the other person committed the crime.⁵ Subsection (2)'s corroboration requirement is written as a limit on what counts as a substantial step under subsection (1)(c), so a helper's case is screened by the two elements of subsection (3) rather than by that limit. The difference tracks the evidence. When the defendant is trying to commit a crime personally, the acts are the main evidence of purpose, and the Code asks that they strongly corroborate it. When the defendant is a helper, the purpose of promoting the other person's crime is itself an element of the § 2.06 hypothetical, so the law examines the helper's aim directly.

Hypothetical Illustration

Victor buys a crowbar, studies the loading dock of a warehouse he plans to burgle himself, and tests the lock on the dock door. Each act moves him along a course of conduct toward his own burglary, so the prosecution proceeds under subsection (1)(c) and must show a substantial step that is strongly corroborative of his purpose.

Change one fact. Victor buys the same crowbar and studies the same dock so that Imani can burgle the warehouse, and he hands her the crowbar. Victor plans no burglary of his own, so subsection (1)(c) has no planned commission against which to measure his steps. Subsection (3) is the route instead: his conduct was designed to aid Imani, and had she burgled the warehouse with the crowbar, Victor would have been her accomplice. Whether Imani goes through with it does not matter.

The conduct in the two versions is nearly identical, a crowbar bought and a dock studied, and what changes is whose burglary is planned. That single fact selects the provision. Students lose this contrast when they ask how close a helper came to completing a crime the helper never planned to commit, or when they run the § 2.06 hypothetical on a defendant who intends to burgle the warehouse personally.

Soliciting an Innocent Agent

One entry in subsection (2) looks like help from another person but belongs with own-crime attempt. Subsection (2)(g) lists, among the steps that may count as substantial under subsection (1)(c), soliciting an innocent agent to engage in conduct constituting an element of the crime.⁷ An innocent agent is a person who does not know what the defendant is really doing, and who therefore lacks the purpose and culpability that make a person an accomplice.⁸ Because the agent is only an instrument, the defendant is the one carrying out the crime through the agent's hands, and the defendant's attempt is an attempt to commit the defendant's own crime.

Subsection (3) is built for a different relationship. It presupposes another person who will commit the crime, with whatever guilty mind the crime requires, and it asks whether the defendant's conduct was designed to aid that person.⁹ The reason for two separate routes lies in where the liability comes from. An aider's liability is borrowed from the other person's offense, while a defendant who uses an unwitting agent has no one's offense to borrow and answers for the crime as its author. Sorting the facts therefore turns on what the other person knows and wants.

Hypothetical Illustration

Hollis gives a truck driver a forged release form so that the driver will load a client's goods and haul them away, and the scheme is stopped before anything is loaded. The driver believes the form is genuine. The driver has no guilty purpose and commits no crime, so Hollis is the one trying to take the goods, using the driver as a tool. He has solicited an innocent agent to engage in conduct constituting an element of the theft, which is a listed substantial step under subsection (2)(g), and his attempt is an attempt to commit his own crime.

Change one fact. The driver knows the form is forged and plans to steal the goods. Now Hollis's form is designed to help the driver's theft, and had the driver loaded and hauled the goods away with it, Hollis would have been the driver's accomplice. Subsection (3) is the route, and the driver's own plan is what puts the case there.

The form, the driver, and the interrupted theft stay constant across the two versions, and only the driver's knowledge moves the case. That is the fact to look for, because it shows whether the person used is a principal in waiting or an instrument. Students misfile this pair when they treat every use of another person as aid and overlook that the other person's knowledge decides which route applies.

Solicitation Versus Aid

Solicitation under § 5.02 targets a defendant who, with the purpose of promoting a crime, commands, encourages, or requests another person to commit it, and the offense is complete when the request is made, even if the other person refuses or never acts.¹¹ Subsection (3) targets a different act. The defendant need not ask anything of the other person and instead does something designed to help the other person carry the crime out, such as supplying means or information. The two provisions therefore ask different questions: solicitation asks whether the defendant tried to move the other person's will, and subsection (3) asks whether the defendant tried to strengthen the other person's hand.

The two routes overlap at the edge, because encouragement is a form of solicitation and can also be a form of aid. The Code arranges the overlap so that no one is punished less for failed help than for failed encouragement: solicitation already reaches encouragement that would establish complicity if the crime were committed, and subsection (3) puts the unsuccessful aider on the same footing by equating attempted complicity with an attempt to commit the crime.¹² A defendant whose facts show both an urging and a delivery of means therefore gives the prosecution two routes, and the sorting question becomes which act the evidence proves. A helper who also reached an agreement with the other person has opened a third route, conspiracy, which is an agreement between two or more people to commit a crime and is complete once the agreement is made.¹³ That route turns on the agreement rather than on a request or on aid, and this chapter does not develop it.

Aiding as a Direct Offense

A legislature need not route liability for assistance through complicity or through subsection (3) at all, because it can define the act of assisting as an offense in itself. Washington's assisted-suicide statute, which the Supreme Court discussed in Washington v. Glucksberg, does this by making it a crime to knowingly cause or aid another person to attempt suicide. Under such a statute the prosecution proves the elements the statute states, and the offense does not depend on whether the person aided committed a crime or on the § 2.06 hypothetical.

The reason a legislature chooses this form is visible in the structure of subsection (3). That subsection reaches only a crime for which the helper would be an accomplice under § 2.06.¹⁵ Complicity is derivative, so it needs an offense to attach to. If the person who attempts suicide is not punished as a principal, there is no offense for complicity to attach to, and a statute that criminalizes the assistance fills the space directly. A direct statute also sets its own mental state, and Washington's uses knowledge, whereas the complicity route requires the purpose of promoting the crime.

Hypothetical Illustration

In a state with a statute like Washington's, in which attempting suicide is not itself a crime, a friend knowingly gives another person the means for a suicide attempt. The friend is liable, if at all, under the direct statute and must satisfy its own elements and mental state. Complicity cannot supply the liability, and neither can subsection (3), because there is no crime the friend would be an accomplice to.

Change the aided act. The friend instead gives another person a lockpick, knowing it will be used in a burglary. Burglary is a crime, so complicity law applies if the burglary occurs and subsection (3) applies if it does not, but only if the friend acted with the purpose of promoting the burglary. If the direct statute requires only knowledge, knowledge alone suffices in the first version and does not suffice in the second.

The two versions hold the helper's conduct constant and change only the aided act, which decides whether any Code route exists at all. Students lose this contrast when they force a direct-aid statute into the § 2.06 hypothetical instead of reading the statute's own elements.

Attempting Your Own Crime

Ordinary attempt is the nearest neighbor of subsection (3), and the two provisions separate on one question: whose crime the defendant is trying to bring about. Section 5.01(1) defines attempt for a defendant who means to be the perpetrator. Under (1)(a) the defendant purposely engages in conduct that would constitute the crime if the attendant circumstances were as the defendant believes them to be. Under (1)(b), in a crime that requires a result, the defendant does or omits something with the purpose of causing that result or with the belief that it will follow without further conduct. Under (1)(c) the defendant purposely does or omits something that is a substantial step in a course of conduct planned to culminate in the defendant's own commission of the crime.¹⁷ Subsection (1)(c) is the route most attempt prosecutions travel, and its final clause ties it to a defendant who intends to finish the crime personally. A helper who plans only to equip someone else has no planned commission of his own for that clause to measure.

Because (1)(c) reaches conduct that may look like preparation, the Code adds a filter in subsection (2): conduct is not a substantial step unless it is "strongly corroborative of the actor's criminal purpose."¹⁸ The filter follows from a basic limit on attempt liability. The law does not ordinarily punish guilty intentions alone, so attempt attaches to acts that further the criminal objective, and those acts are the main evidence that the intention was real.¹⁹ Subsection (2) then lists conduct that may not be held insufficient as a matter of law when it meets the corroboration standard: reconnoitering the place contemplated for the crime, enticing or seeking to entice the contemplated victim to that place, and possessing, collecting, or fabricating materials for the crime at or near the place where the activity serves no lawful purpose of the actor.²⁰ Each example describes someone who plans to commit the crime personally, since a person reconnoiters a place he means to enter, entices a victim he means to harm, and collects materials he means to use. In United States v. Mandujano the Fifth Circuit reached a similar formulation, requiring the culpability the target crime demands and a substantial step strongly corroborative of the firmness of the defendant's intent.²¹ The threshold sits well before the final act, which is why preparation of the kind subsection (2) lists can already qualify.²²

Subsection (3) does not run through any of this machinery. It asks whether the defendant engaged in conduct designed to aid another to commit a crime, and whether that crime would establish the defendant's complicity under § 2.06 if the other person committed it, and it makes the defendant guilty of attempt even though the other person neither commits nor attempts the crime.²³ Because the crime belongs to someone else, there is no planned commission by the defendant against which a substantial step could be measured. The corroboration filter is written as a limit on substantial steps under (1)(c), so a helper's case is screened by the two elements of subsection (3) instead. The two provisions measure different things: own-crime attempt measures the defendant's progress toward committing the crime, while subsection (3) measures the design of the defendant's help. The difference also follows the evidence. A would-be perpetrator's acts are the principal proof that the purpose is genuine, so the Code demands that they strongly corroborate it. A helper's purpose is tested directly by the § 2.06 hypothetical, which asks whether the helper would have been an accomplice had the other person gone forward.

Hypothetical Illustration

Dale spends an evening walking the alley behind a jewelry store, noting the camera angles and testing the back door, because he plans to burglarize the store himself. A patrol officer arrests him in the alley before he does anything more. Reconnoitering is the kind of conduct subsection (2) lists, so the prosecution proceeds under (1)(c) and must show that Dale's acts were a substantial step strongly corroborative of his purpose to commit the burglary.

Change the plan. Dale never intends to enter the store. Priya has told him she will burglarize it, and Dale hands her a lockpick so that her burglary will succeed. Priya never goes. Dale has no burglary of his own for (1)(c) to measure, so subsection (3) is the route: his conduct was designed to aid Priya, and had she burgled the store with the lockpick, Dale would have been her accomplice. Priya's inaction is no defense for him.

In both versions Dale is connected to a planned burglary of the same store, and what changes is who the intended burglar is. That one fact selects the provision. On an exam stem, the first move is to identify the intended perpetrator. If the defendant means to commit the crime, the analysis runs through § 5.01(1) and the corroboration filter in (2), and if the defendant means only to help someone else, it runs through subsection (3). Students go wrong in both directions, by asking how close a helper came to finishing a crime the helper never planned to commit, and by running the § 2.06 hypothetical for a defendant who is the would-be perpetrator.

Soliciting an Innocent Agent

Subsection (3) covers a defendant who helps a culpable person commit a crime. A defendant can also use another person who never understands what is happening, and the Code files that situation under a different provision. Section 5.01(2) lists, among the kinds of conduct that may count as a substantial step, soliciting an innocent agent to engage in conduct constituting an element of the crime.²⁵ That listing sits inside own-crime attempt. Subsection (1)(c) requires a purposeful act that is a substantial step in a course of conduct planned to culminate in the defendant's own commission of the crime, and subsection (2) adds that the step must be strongly corroborative of the actor's criminal purpose.²⁶ A defendant who uses an unwitting person is therefore charged as an attempter of the defendant's own crime, and the question here is why the Code sends the case there and not to subsection (3).

The answer lies in a requirement of subsection (3) itself. That subsection reaches conduct designed to aid another to commit a crime that would establish the defendant's complicity under § 2.06 if the other person committed it.²⁷ Complicity is derivative, meaning it holds a helper answerable for an offense that someone else commits with a guilty mind. A person who has been deceived into performing an act, and who has no guilty purpose, commits no offense for a helper to share. The deceiver is then the only wrongdoer in the scheme, and the unwitting person functions as a tool in the deceiver's hand. The defendant is trying to commit the crime personally, with the agent's hands doing the physical work, and that is the situation subsection (1)(c) was written to measure.

The listing as a substantial step also reflects how far such a defendant has already gone. Once the deceiver has solicited the agent and sent the agent on the errand, nothing remains for the deceiver to do except wait, so the conduct would likely have counted as an attempt even under older tests that demand closeness to completion.²⁸ The same reasoning appears where the other person only pretends to join the plan. Common-law complicity does not treat a feigned participant as an accomplice, so a defendant who solicits one answers only for the defendant's own acts.²⁹

Hypothetical Illustration

Teodor wants a laptop bag that belongs to a hotel guest. He gives a hotel courier a claim ticket and a false story that the bag is his own and was left at the front desk. The courier believes the story and starts for the desk, but the hotel discovers the plan before the courier arrives. The courier has no guilty purpose and would commit no theft by carrying out the errand, so Teodor is the one trying to take the bag. Soliciting an innocent agent to engage in conduct constituting an element of theft is a listed substantial step, and the prosecution proceeds under subsection (1)(c) for an attempt at Teodor's own theft.

Change one fact. The courier knows the bag belongs to the guest and shares the plan to take it, and Teodor hands over the same claim ticket so that the plan will work. Now the courier is a culpable participant, and had the courier taken the bag with the ticket's help, Teodor would have been the courier's accomplice. Subsection (3) is the route, and it applies even though the courier never reaches the desk.

The ticket, the courier, and the interrupted scheme stay constant across the two versions, and only the courier's knowledge moves the case. That fact decides whether the person used is a principal in waiting or an instrument. The choice of provision also changes what the prosecution must prove. Under (1)(c) the prosecution shows a step strongly corroborative of the defendant's own criminal purpose, and the deceiving of the courier supplies it. Under subsection (3) the prosecution must satisfy the § 2.06 hypothetical, which a charge against Teodor in the first version cannot do, because a deceived courier commits no offense that would make Teodor an accomplice. On an exam stem the trap is treating every use of another person as aid, when the first question is what the other person knows and wants.

Solicitation Versus Aid

Subsection (3) and solicitation both reach a defendant whose goal is someone else's crime, which is why they are easy to confuse when the other person is a willing participant, as the courier was in the case just above. They separate on the conduct the defendant engages in. Under § 5.02(1), a person is guilty of solicitation if, with the purpose of promoting or facilitating a crime, the person commands, encourages, or requests another to engage in specific conduct that would constitute the crime, an attempt to commit it, or the defendant's own complicity in it.³¹ The act is communicative, since the defendant uses words or other conduct to move another person's will toward a crime.³² Because the offense lies in the effort to persuade, it does not wait for a response, and the person solicited need not agree to commit the crime, let alone attempt it.³³ Section 5.02(2) goes one step further and makes it immaterial that the request never reaches its target, so long as the defendant's conduct was designed to communicate it.³⁴

Subsection (3) points at different conduct. It asks whether the defendant engaged in conduct designed to aid another to commit a crime, and whether that crime would establish the defendant's complicity under § 2.06 if the other person committed it, and it makes the defendant guilty of attempt although the other person neither commits nor attempts the crime.³⁵ Aid is conduct directed at the crime's execution, such as supplying keys, tools, or access, and it requires no request to anyone. The two provisions therefore answer to different dangers. A request seeks to recruit a perpetrator, and recruiting is dangerous because it shows a disposition toward crime and invites cooperation among criminals.³⁶ Aid seeks to make a crime easier or more likely to succeed, and the danger is the added chance that a crime someone already intends will actually be carried out. Each provision punishes its own kind of effort without waiting for the result.

The Code writes subsection (3) as a mirror of solicitation. Section 5.02(1) punishes encouragement that would constitute complicity if the crime were committed, and subsection (3) punishes aid that would constitute complicity if the crime were committed, so that without the second provision an unsuccessful encourager would be treated more severely than an unsuccessful aider.³⁷ The older accomplice vocabulary draws a similar line. A helper who supplies a gun and mask before a robbery is an accessory before the fact, while solicitation is the narrower matter of recruiting or hiring someone, which usually means initiating the crime and procuring the principal's participation.³⁸

Both versions involve the same planned robbery and the same two people, and the fact that moves the answer is what Gideon did about it. Handing over the keys is help, which subsection (3) measures by the design of the conduct and by the § 2.06 hypothetical. Asking Hana to rob is a request, which § 5.02(1) measures by the defendant's purpose and the communicative act. Both provisions demand that the defendant act for the purpose of advancing the crime, solicitation by its own text and subsection (3) through the complicity standard it borrows, which requires the purpose of promoting or facilitating the offense.³⁹ Students lose this contrast when they ask whether the other person agreed or acted, because neither provision depends on that, and the question that sorts the cases is whether the defendant requested a crime or assisted one.

The line blurs at one margin. Section 5.02 lists encouraging among its verbs, and complicity law treats support or encouragement given before a crime as a basis for accomplice liability,⁴⁰ so words of encouragement can be described as solicitation and, depending on the facts, as conduct designed to aid. The text of the two provisions does not say which description controls, and the clean cases above do not require an answer. On an exam stem where the defendant only urges the other person on, the safer analysis names both provisions and tests the facts against each.

Aiding as a Direct Offense

Subsection (3) is a general rule, but a legislature can also reach a helper by writing a statute that makes the assistance itself the crime. Washington's law on promoting a suicide attempt is an example. A person is guilty when he knowingly causes or aids another person to attempt suicide, the offense is a class C felony, and the State has prohibited assisting suicide since its territorial days.⁴² Washington v. Glucksberg described that statute while reviewing the long American history of such bans. The Model Penal Code has a parallel provision in § 210.5(2), which makes it an offense to purposely aid or solicit another to commit suicide. It grades the offense as a second-degree felony when the conduct causes a suicide or an attempt and as a misdemeanor otherwise.⁴³ The lower grade for the case where nothing happens shows that the helper's act is the crime, whatever follows from it.

Legislatures have written these statutes for a reason that fits the structure of complicity law. The early American provisions targeted the helper's contribution directly, and the New York code drafted by Dudley Field, for example, forbade furnishing a deadly weapon or poisonous drug to a person known to intend to use it for suicide.⁴⁴ The Model Penal Code's drafters reasoned that a person who shows a willingness to participate in taking another's life threatens the interests that the homicide laws protect, even when the victim consents.⁴⁵ That is a judgment that willingness to participate is dangerous in itself. A direct statute also avoids the derivative character of complicity. Suicide was treated as a grievous but nonfelonious wrong, so there was no felony by a principal for a helper to share, and the legislature named the helper's act as the offense.⁴⁶ Under such a statute the person who supplies the means is convicted on the statute's own elements, with no need to run the § 2.06 hypothetical.

Subsection (3) covers the much larger territory where no such statute exists. A direct aiding offense reaches only the harm it names, while subsection (3) applies across the Code's offenses and tests the helper through complicity.⁴⁷

The helper's act is the same in the suicide statute and in the burglary example, since each involves supplying the means to someone who has announced a plan. What moves the answer is whether the legislature has written a specific offense. Students lose points on this issue by running the § 2.06 hypothetical when a specific aiding statute already covers the conduct, and by hunting for such a statute when none exists and subsection (3) is the only route.