University of New Hampshire Law Review


[Excerpt] "Suppose that A hires B to rob a bank in Massachusetts and A then hires C to rob a bank in Rhode Island. B and C have not met face to face, but each knows he is part of a conspiracy to rob banks in more than one state. All agree that no one will be killed in the robberies. A then procures D to get a car for use in the robberies. B uses D’s car to rob his bank. During the robbery of C’s bank, C pulls out a gun and shoots and kills the bank guard.

Clearly, A, B, C, and D are all guilty of conspiracy to rob banks, the act to which they agreed. Clearly too, A, B, C, and D are not guilty of conspiracy to murder, because they never agreed to kill anyone. C, however, is guilty of murder, since he intentionally killed the bank guard without justification or excuse. But can A, B, and D also be charged with this murder?

There are, of course, several ways in which one person may be guilty of a murder committed by another person. One is by the felony-murder rule, which historically has meant that one is guilty of murder if, in the course of committing a felony, one causes the death of another person. In this example, if the felony-murder rule applies, A, B, and D could be guilty of felony murder of the bank guard – a murder committed by their cofelon, C. But if the felony-murder rule is not applicable, either because the state has rejected the rule, as most commentators have long been urging states to do, or because the state legislature has defined felony murder as second degree murder and the prosecution wants to convict A, B, and D, as well as C of first degree murder of the guard, is there another basis for finding A, B, and D guilty?

The doctrine of complicity, also known as aiding and abetting, is, of course, another way to make a person guilty of a murder committed by someone else. But would A, B, and D be guilty of murder of the bank guard on an aiding and abetting theory in this instance? On mens rea grounds, A, B, and D intended at most to encourage a robbery by C. In Model Penal Code terms, that was their purpose or “conscious objective.” But their purpose was not to encourage C to kill anyone. They had expressly agreed that no one would be killed. They did not know that C would kill during the robbery. If aiding and abetting requires a purpose to facilitate the particular crime at issue, A, B, and D would not be guilty of murder of the bank guard by aiding and abetting.

On actus reus grounds, there also would be a problem with complicity. A did hire C to rob the bank. He did actively set in motion the crime which resulted in the killing of the guard. But what did B and D really do to assist or encourage the robbery by C, much less C’s murder of the guard? All they did was to agree to be part of a larger conspiracy to rob banks. One could argue that they never facilitated C’s specific robbery, and that they did nothing to facilitate his killing of the guard.

There is, however, an alternative way in which A, B, and D can be convicted of C’s murder of the guard. If the court finds that A, B, C, and D were in a conspiracy to rob the banks, and if C committed murder in furtherance of that conspiracy, then A, B, and D are all also guilty of murder, as long as they could reasonably have foreseen that such an event would occur in the course of their conspiracy. They could all be guilty of first degree murder, even though A, B, and D never met the bank guard, never assisted or encouraged C to kill him, never wanted C to kill him or knew C would kill him, and never even visited the bank or entered the state in which the bank was located!

The rule by which this result is reached, called the Pinkerton rule, is one of the most controversial doctrines in modern criminal law. Broadly stated, the rule is that “any conspirator in a continuing conspiracy is responsible for the illegal acts committed by his cohorts in furtherance of the conspiracy, within the scope of the conspiracy, and reasonably foreseeable by the conspirators as a necessary or natural consequence of the unlawful agreement.” This rule permits conviction of a crime that the accused did not intend, plan, want, or even know about, committed against a victim whom the defendant did not know or want to harm. The rule applies throughout the life of the conspiracy to all who originally agreed to join the conspiracy, unless the defendant overtly acted to disavow and/or defeat the conspiracy.

The Pinkerton rule “is not universally followed.” It is rejected in the Model Penal Code. Many state courts have interpreted their statutes to require more than membership in a conspiracy for complicity in substantive crimes committed in the course of that conspiracy. Commentary on Pinkerton in the academic world, much like commentary on felony murder and on conspiracy in general, is overwhelmingly negative. On the contrary, this article argues that the Pinkerton doctrine, far from being an aberration, is rather more an illustration of our existing criminal law and of some of the important theoretical assumptions behind it. [...]

Repository Citation

Matthew A. Pauley, The Pinkerton Doctrine and Murder, 4 Pierce L. Rev. 1 (2005), available at http://scholars.unh.edu/unh_lr/vol4/iss1/3