Concept

Terminating Complicity

Model Penal Code liability for conduct of another

Terminating Complicity

The victim exclusion and the exclusion for conduct inevitably incident to the offense both depend on who the person is in relation to the offense, a fact settled before anyone acts. The third exclusion in subsection (6) depends on what a person does afterward, and it reaches only someone who has already become an accomplice. Under § 2.06(6)(c), unless the Code or the law defining the offense provides otherwise, a person is not an accomplice if the person terminates complicity prior to the commission of the offense and then either wholly deprives the assistance of effectiveness in the commission of the offense, or gives timely warning to law enforcement authorities, or otherwise makes proper effort to prevent the offense.¹ The label for this exclusion is termination of complicity, and the two ways of qualifying receive separate treatment in the sections below. This section covers what they share, which is a deadline and a requirement that the person act rather than merely reconsider.

The exclusion is needed because the Code makes a person an accomplice early. Under subsection (3)(a), a person who acts with the purpose of promoting or facilitating the offense becomes an accomplice by soliciting another to commit it, by aiding or agreeing or attempting to aid in planning or committing it, or by failing to make proper effort to prevent it despite a legal duty to do so.² Because an agreement to aid is enough, a person can become an accomplice before contributing anything of value and before the offense has occurred. Subsection (6)(c) supplies the way out, since it permits an accomplice to withdraw previously provided assistance and thereby avoid responsibility already incurred.³ A New Hampshire court applying that state's version of the provision, which follows § 2.06, began from exactly this premise when it reviewed the conviction of a defendant who had agreed to serve as a lookout for a theft of examinations, and because the defendant did not dispute that he became an accomplice by agreeing, the only question was whether his later acts ended his liability.⁴

The first condition is timing. The termination must come before the offense is committed, and a termination that arrives afterward does not qualify.⁵ The deadline follows from what complicity is: it is no separate crime but a way of committing some other offense, so accomplice liability attaches to the offense itself, and once the offense has been committed the person's participation in it is a completed fact that no later act can reverse.⁶ The deadline also fits what withdrawal can accomplish. Before the offense, recalled assistance or an alert to the police can still change what happens, while afterward nothing remains to prevent. The Code does not ignore people who help after the offense; it handles accessories after the fact through a separate crime rather than through accomplice liability.⁷ Timing is also a point that defendants contest, since the New Hampshire lookout argued on appeal that the trial court should have made findings about when he withdrew relative to the completion of the theft.⁸

The two scenes involve the same warning and differ only in when it was given, which is the variable the deadline controls. A warning that precedes the offense can still affect whether it occurs, and the provision credits it for that reason. The same information delivered afterward arrives when the offense is complete and Reyes has already taken part in it.

The second condition is conduct. The text asks the person to do something about the assistance already given or the offense still to come: wholly depriving the assistance of effectiveness, or giving timely warning, or otherwise making proper effort to prevent the offense.¹¹ A private resolve to stop appears nowhere in that list. The reason is visible from how complicity arises. A person who purposefully assists has already added to the danger that the offense will occur, and a change of heart that leaves the assistance in place and the authorities uninformed leaves that danger exactly where it was. The Code therefore credits only conduct that reduces the danger, either by neutralizing the person's own contribution or by putting someone in a position to stop the offense. An incentive reason runs alongside this one. A private change of mind can be shown only through the defendant's own later account, and a charged defendant has every reason to offer one, so tying the exclusion to something done in the world gives the factfinder something to test.

Someone who solicits a crime and then has second thoughts raises a related question under a different provision, and the two are easy to blur. Solicitation is an offense in its own right, complete once the actor, with the purpose of promoting or facilitating a crime, commands, encourages, or requests another person to engage in specific conduct that would constitute it.¹³ Complicity has no such independence, because it depends on the occurrence of some other offense.¹⁴ Section 5.02(3) therefore supplies an affirmative defense to the solicitation itself, while § 2.06(6)(c) governs whether the same person is an accomplice in an offense that someone else commits.¹⁵ When the solicitor's persuasion works and no offense follows, complicity has nothing to attach to, and § 5.02(3) addresses the solicitation that remains.

The two provisions also differ in what they demand. Section 5.02(3) is available to a solicitor who, after the solicitation, persuaded the other person not to commit the crime or otherwise prevented its commission, and it requires circumstances manifesting a complete and voluntary renunciation of criminal purpose.¹⁶ Subsection (6)(c) has no matching language about renunciation, and its second path asks for timely warning or other proper effort to prevent the offense, so the text does not require that the effort succeed in stopping the crime.¹⁷ The two can therefore come out differently on the same facts. A timely and proper effort that fails to stop the solicited crime can satisfy § 2.06(6)(c)(ii) while falling short of the prevention that § 5.02(3) demands.

On an exam stem, the usual error is to treat a private change of heart as termination because the defendant stopped wanting the offense to happen. The text asks what the defendant did and when, so the analysis begins by locating the moment of commission and then looks for qualifying conduct before it. A stem that includes a solicitation should also be read for which liability is in question, since § 5.02(3) addresses the solicitation and § 2.06(6)(c) addresses accomplice liability for the offense itself.

Exam Analysis Steps

Because the exclusion presupposes accomplice status and then depends on both timing and conduct, it is best run in the order the facts occurred. The steps are these:

Establish that the person became an accomplice under subsection (3), by identifying the purpose and the soliciting, aiding, agreeing, or other conduct that made the person one.
Fix the moment the offense was committed, and treat every act after that moment as too late to qualify.
Look for conduct before that moment that ended the person's participation, and treat a private change of mind with no act behind it as insufficient.
Test that conduct against the two qualifying paths, asking whether it wholly deprived the assistance of effectiveness or amounted to timely warning or other proper effort to prevent the offense.
Read the law defining the offense for any provision that displaces the exclusion, since the lead-in to subsection (6) makes the exclusion a default.

Steps two and three carry the weight in most stems, because an act that comes after the offense, or an inner resolve with no act behind it, ends the inquiry at once. Step four is developed in the two sections below, which take the neutralizing of assistance first and warning or preventive effort second.

Neutralizing the Assistance

The first of the two qualifying paths in § 2.06(6)(c) asks what has become of the help the person gave. Once a person has terminated complicity before the offense, the exclusion applies if the person wholly deprives the assistance of effectiveness in the commission of the offense.¹⁹ The test therefore attaches to the assistance itself and measures it at the moment the offense is committed: could the principal still use what the accomplice supplied? The Code's withdrawal rule has been summarized as requiring that the person completely deprive the aid of its effectiveness, which is the same demand in plainer words.²⁰ This route can be called neutralizing the assistance, and the word wholly sets how much neutralizing is required.

That word follows from what makes a person an accomplice. The person is held to account for the offense because of a purposeful contribution to it, so a rule that excuses the person has to take the contribution out of the offense. Changing the person's attitude toward the contribution does not do that. If the key, the code, or the promised role can still help the principal, the purposeful help that created complicity is still operating, and a declaration of withdrawal leaves the danger exactly where it stood. The same reasoning explains why the Code demands all of the neutralizing rather than most of it. Any portion of the assistance that remains effective is still a contribution made with the required purpose, and the person cannot claim to have taken back a contribution that continues to do its work.

The first scene does not require that the burglary be stopped. The text asks whether the assistance was deprived of effectiveness in the commission of the offense, and it does not ask whether the offense occurred.²³ If Brandt had gone ahead anyway and forced a window, the key would have played no part in the burglary, and on the text of (i) Okafor would still have neutralized his assistance. Efforts aimed at preventing the offense belong to the second path, which the next section covers. Because the two paths are joined by or, a person who cannot recall the aid is not shut out of the exclusion.

Not all assistance is a physical object that can be handed back. Information is the common example, and it is neutralized by changing the world so that the information no longer helps, since nobody can make a principal forget what the principal was told.

The same logic applies when a person gave two kinds of help and neutralizes only one. A helper who retrieves a lent key but leaves behind a floor plan that the principal then uses has taken back only part of the assistance, and wholly is not met while any part is still working.

Assistance that consists of a promised role or of encouragement raises a harder question, because there is nothing to retrieve. A New Hampshire court applying its version of the provision faced the problem when a defendant who had agreed to act as lookout for a theft of examinations argued that he had withdrawn before the theft was complete. The State contended that an overt act aimed at undermining the earlier complicity was required, the defendant contended that on his facts no such act was necessary, and the court found the phrase ambiguous because the statute does not say what it demands.²⁶ To resolve the ambiguity, the court turned to the official comment to § 2.06, which it read to mean that a person who encouraged an offense may escape liability by ending the role and making disapproval known to the principals early enough for them to reconsider.²⁷

That reading fits the reason for the rule. A promised lookout or a word of encouragement is help only because the principals are counting on it, and it keeps operating for as long as they rely on it. Neutralizing it means ending the reliance, which requires telling the principals in time to change their plans. A person who simply stays home and says nothing leaves the planners building on a promise that still stands.

On an exam stem, students lose this issue by treating a statement of withdrawal while the aid stays in the principal's hands as neutralizing the assistance. The better method is to follow the help itself from the moment it was given to the moment of the offense:

Exam Analysis Steps

Because the test asks about the effectiveness of the assistance rather than the sincerity of the defendant, it is best run by tracking each form of help. The steps are these:

Identify each form of help the defendant gave, whether a tool, information, an agreed role, or encouragement.
For each form, ask where it stood when the offense was committed and whether the principal could still use it.
For tangible aid and information, look for an act that took it out of use, such as retrieving the tool or making the information worthless, and for an agreed role or encouragement, look for disapproval communicated early enough for the principals to reconsider.
If any form of the help was still effective, conclude that (6)(c)(i) is not satisfied, and then ask whether the defendant's conduct qualifies under the warning or preventive-effort path.

Warning or Preventive Effort

The second qualifying path in § 2.06(6)(c) turns from what became of the person's help to what the person did to stop the offense. Once a person has terminated complicity before the offense, the exclusion also applies if the person gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.²⁹ The Code's withdrawal rule lists its qualifying acts as alternatives, so any one of them will do.³⁰ This path therefore does not ask whether the aid was neutralized. A person who gave information that the principals have already memorized cannot take it back, yet that person can still qualify by warning the authorities in time or by making some other proper effort, and that is why the Code offers a route that does not depend on retrieving what was given.

The reason for crediting this conduct follows from what makes a person an accomplice. A person who purposefully assists has added to the danger that the offense will occur, and when the assistance cannot be recalled, the only way left to reduce that danger is to put someone in a position to stop the offense. Police who learn of a planned burglary while there is still time can guard the building or intercept the burglars, so a warning protects the intended victim in a way that a silent change of heart cannot.

The same structure explains why the text asks for effort rather than success. Complicity always depends on some other offense actually occurring, so if a warning prevents the offense entirely, there is nothing left for the person to be an accomplice in.³¹ The exclusion does its work in the cases where the offense happens despite the person's effort, and a requirement that the effort succeed would remove the protection in exactly those cases. A solicitor's renunciation defense under § 5.02(3) is framed differently, around persuading the other person not to commit the crime or otherwise preventing it, so a timely and proper effort that fails can qualify here while falling short there.³²

Two words in the text carry most of the contest. The first is timely. A warning is timely when it reaches the authorities early enough for them to act on it before the offense is committed, and the measure is the moment of commission, because a warning that arrives afterward reports a completed crime and prevents nothing. The word also blocks a tactic that the incentives would otherwise invite. If a late call counted, an accomplice could wait to see how the offense turned out and telephone the police only when the plan was going badly, keeping the benefit of the crime if it succeeded and buying protection if it did not. Requiring the warning to come while prevention is still possible removes the advantage of waiting. The same attention to timing appears in the official comment's treatment of encouragement, which a New Hampshire court applying its version of the provision read to require that countermanding disapproval be heard early enough to allow reconsideration by those planning the crime.³³

The second word is proper, and it modifies effort. The text does not define it, so the question is whether what the person did was genuinely directed at preventing the offense and fitted to what the person knew and could do. A call that gives the police the address and the time fits that description. A call that gives them nothing to act on does not, particularly when the caller knows the details and withholds them, because the gesture leaves the offense as likely to occur as before. The catch-all phrase otherwise makes proper effort also reaches beyond the police, since it asks only for effort to prevent the offense, so warning the intended victim or dissuading the principals are the kinds of conduct a factfinder could weigh under it.³⁴

Hypothetical Illustration

Dunmore gives the planners of a warehouse break-in the alarm code, wanting the break-in to succeed. Three days before the planned night, Dunmore tells the planners he is out, then telephones the police and reports the plan, the address, and the time. The planners go ahead anyway and use the code, which they had memorized. Dunmore terminated complicity before the offense and gave timely warning. The assistance stayed fully effective, but this path does not ask about that, so Dunmore is not an accomplice.³⁵

Change the timing. Dunmore's call comes the morning after the break-in. The same words to the same police now describe a completed offense, so nothing was delivered that could have helped prevent it. The warning was not timely, and Dunmore, who became an accomplice by aiding with the required purpose, remains one.³⁶

Change the content instead. Dunmore calls three days ahead, as in the first scene, but tells the police only that something might happen downtown sometime that week, and hangs up, although Dunmore knows the address and the time. The call came early enough, but it gave the authorities nothing they could act on, so it was neither a timely warning of this offense nor a proper effort to prevent it, and Dunmore remains an accomplice.³⁷

A warning is also only half of what the text requires. The exclusion begins with a person who has terminated complicity before the offense, and the warning or effort is the further condition that follows.³⁸ The New Hampshire court framed its version of the provision the same way, asking whether the defendant terminated his complicity, whether he did so before the offense, and whether he then met one of the qualifying paths. It analyzed only the neutralizing path, because the defendant, a lookout, did not contend that he had given timely warning or made proper effort.³⁹ That sequence matters because a telephone call that sits alongside continued participation leaves the person's contribution at work.

On an exam stem, the usual error is to treat any contact with the police as timely warning. The contact has to come before the offense, early enough to be acted on, and it has to be accompanied by termination. A stem that mentions a call should be read for when the call was made, what it said, and what the caller did afterward.

Exam Analysis Steps

Because this path has a termination condition, a timing condition, and a quality condition, it is best run in that order. The steps are these:

Confirm that the person became an accomplice under subsection (3), and ask whether the person ended participation before the offense, treating any continued role in the plan as defeating termination.
Fix the moment the offense was committed, and ask whether the warning or effort occurred early enough for the authorities or others to act on it before that moment.
Examine what the person actually did, asking whether the warning reached law enforcement with enough detail to be acted on or, for other conduct, whether a person genuinely trying to prevent the offense would have made the same effort.
Treat a failure of the neutralizing path as no obstacle, because the two paths are alternatives and the assistance may have stayed fully effective.
Read the law defining the offense for any provision that displaces the exclusion, since the lead-in to subsection (6) makes the exclusion a default.

Steps two and three carry the weight, because a late call and an empty tip are the two ways this path most often fails on a stem. Step four prevents the opposite mistake of denying the exclusion to a person who warned the police in time merely because the code or tool the person supplied was still in the principal's hands.