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Criminal Jury Instructions

Criminal Jury Instructions Home

3.1-3  Vicarious Liability under Pinkerton

Revised to December 1, 2007 (modified May 20, 2011)

NOTE:  In the following instruction, two offenses are referred to: the "conspiracy offense" and the "substantive offense." As an example, assume that during the course of a robbery an innocent bystander is shot and killed by one of three coparticipants in the commission of the robbery. The defendant, who did not commit the murder, is charged with robbery, conspiracy to commit robbery, and murder under Pinkerton. The "conspiracy offense" would be robbery, and the "substantive offense" would be murder. 

This statute does not define a separate crime, but a separate theory of liability. It should be included in the instruction defining the substantive offense, following the elements of that offense. If the state presents alternative theories of vicarious liability, the jury must be unanimous. See Introduction to Vicarious Liability. 

The defendant is charged in count __ with <insert substantive offense>, even though the state is not alleging that the defendant directly participated in the commission of the <insert substantive offense>.  The defendant is also charged, in count ___, with conspiracy to commit <insert conspiracy offense>.  There is a doctrine in our law, commonly referred to as the Pinkerton doctrine, that provides that once a defendant's participation in a conspiracy is established beyond a reasonable doubt, (he/she) may be held criminally liable for all of the criminal acts of the other coconspirators that are within the scope of and in furtherance of the conspiracy. 

For you to find the defendant guilty of <insert substantive offense> under the principle of vicarious liability, the state must prove the following elements beyond a reasonable doubt: 

Element 1 - Conspiracy
The first element is that the defendant conspired to commit [one of] the following crime[s]: <insert conspiracy offense(s)>.  Proof of this element will depend on your deliberations pertaining to count <insert the number of the count(s) charging the defendant with conspiracy>.  The defendant cannot be found guilty of <insert substantive offense> unless you find (him/her) also guilty of conspiracy to commit <insert conspiracy offense(s)>. 

Element 2 - Crime committed by a coconspirator
The second element is that a member of the conspiracy, in this case <insert named of alleged coconspirator>, committed <insert substantive offense>.  [<Include if appropriate:> <insert named of alleged coconspirator> is not on trial today, and you do not need to render a verdict as to (his/her) guilt or innocence.  However, the state has presented evidence, which must convince you beyond a reasonable doubt, that <insert named of alleged coconspirator> and the defendant were members of the conspiracy and that <insert named of alleged coconspirator> committed the <insert substantive offense>, the elements of which I have already explained to you.]  

Element 3 - Within scope of and in furtherance of conspiracy
The third element is that <insert named of alleged coconspirator>, when (he/she) committed the <insert substantive offense>, was acting within the scope of and in furtherance of the conspiracy.  The phrase "in furtherance of" imposes the requirement of a relationship between the underlying common design of the conspiracy to commit <insert conspiracy offense(s)> and the <insert substantive offense>.  It means that the <insert substantive offense> was committed for the purpose of carrying out or achieving the object of the conspiracy. 

Element  4 Reasonably foreseeable
The fourth element is that it was reasonably within the contemplation of the coconspirators that <insert substantive offense> would be committed.  You must find, depending on all the circumstances you find proved by credible evidence, that the crime of <insert substantive offense> was reasonably foreseeable as a necessary or natural consequence of the conspiracy.

Conclusion

In summary, you may find the defendant guilty of <insert substantive offense> on the basis of Pinkerton liability if you unanimously agree that the state has proved beyond a reasonable doubt that 1) the defendant conspired to commit [one of] the following crime[s]: <insert conspiracy offense(s)>, 2) a member of that conspiracy committed <insert substantive offense>, 3) the commission of <insert substantive offense> was within the scope of and in furtherance of the conspiracy, and 4) the commission of <insert substantive offense> was reasonably foreseeable as a necessary or natural consequence of the conspiracy. 

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements of the crime of <insert substantive offense>, then you shall find the defendant guilty.  On the other hand, if you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements, you shall then find the defendant not guilty. 

[<If also submitted under a theory of accessorial liability:>  As I have already instructed you, the state is also claiming that the defendant is guilty of <insert substantive offense> as an accessory.  Your possible verdicts as regards this count would be not guilty, guilty as an accessory, guilty as a coconspirator, or guilty as both an accessory and a coconspirator.  You must all unanimously agree which of these verdicts will be returned.1]
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1  See State v. Martinez, 278 Conn. 598, 619-20 (2006).

Commentary

In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.2d 1489 (1946), the U.S. Supreme Court held that when parties are found to have entered into a conspiracy, each of them may be convicted of substantive crimes committed by any of them as long as the offenses were in furtherance of the conspiracy. This principle of vicarious liability was adopted by the Connecticut Supreme Court in State v. Walton, 227 Conn. 32 (1993). Under Pinkerton, "a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy." (Internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 491 (2003). There is no requirement that the defendant have the same intent as the coconspirator who actually committed the crime. Id., 493-98.

The court should not allow the jury to consider the Pinkerton theory of liability when "the nexus between the defendant's role in the conspiracy and the alleged conduct of a coconspirator is so attenuated or remote, notwithstanding the fact that the latter's actions were a natural consequence of the unlawful agreement, that it would be unjust to hold the defendant responsible for the criminal conduct of his coconspirator." State v. Diaz, 237 Conn. 518, 530 (1996).

A Pinkerton instruction is improper in a case in which the defendant was charged only with conspiracy and not with the substantive offense committed in furtherance of the conspiracy. State v. Liebowitz, 65 Conn. App. 788, 807-11, cert. denied, 259 Conn. 901 (2001). 

Pinkerton and attempt
A person may be charged with attempted crimes under PinkertonState v. Diaz, supra, 237 Conn. 533. 

Pinkerton and felony murder
Felony murder allows a conviction for murder when a death is caused by the defendant or another during the commission of a number of specified felonies, even though no one intended the death.  Under Pinkerton, a defendant may be convicted of murder only if a coconspirator had the intent to cause the victim's death.  State v. Diaz, supra, 237 Conn. 531. 

Pinkerton and capital felony
A murder conviction pursuant to Pinkerton liability may be the predicate for a capital felony conviction.  State v. Coltherst, supra, 263 Conn. 500-502; see also State v. Peeler, 271 Conn. 338, 364-65 (2004).
 


 

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