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Joint Intention and Accomplice Liability

50 Pages Posted: 23 Mar 2017  

Nicholas Almendares

Seton Hall Law School

Dimitri Landa

New York University (NYU) - Wilf Family Department of Politics

Date Written: February 14, 2017

Abstract

When can one be held criminally liable for the criminal acts of another? This central question of accomplice liability law has spawned conflicting precedents and a confused, inconsistent doctrine. One prominent approach, at the core of the Joint Criminal Enterprise doctrine used by international courts as well as of the law used in a number of high-profile domestic cases, is to base joint criminal liability on foreseeability. However, the foreseeability standard entails abandoning mens rea and individual intentions as necessary elements of a crime, and so departs from some of the law’s core commitments. The other main approach, based on an influential opinion by Learned Hand, ties joint criminal liability to intention. In so doing, it avoids the problems of the foreseeability doctrine, but it is too ambiguous to be applied consistently.

We propose a framework that grounds this area of law in a considered account of joint intention while preserving the importance of both mens rea and individual intention in the assignment of criminal liability. This approach provides a resolution of long-standing confusions about the meaning and consequentialness of accomplice actions and offers a unified, coherent doctrine to replace a series of disparate and ad hoc conclusions in case law. A key concept in our approach is one of standing in reserve, which extends the coverage of a joint intention beyond the immediate participants in the actus reus and offers a systematic way of addressing a series of challenging cases including felony murder rules, organized crime, state-sponsored violence, and terrorist sleeper cells.

Keywords: mens rea, intention, criminal law, conspiracy, accomplice liability, complicity

Suggested Citation

Almendares, Nicholas and Landa, Dimitri, Joint Intention and Accomplice Liability (February 14, 2017). Available at SSRN: https://ssrn.com/abstract=2938719

Nicholas Almendares (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

Dimitri Landa

New York University (NYU) - Wilf Family Department of Politics ( email )

715 Broadway
New York, NY 10003
United States

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