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Legal Memorandum: Pinkerton Theory of Liability

Issue: What is necessary to support a conviction under the Pinkerton theory of liability?

Area of Law: Criminal Law
Keywords: Pinkerton theory of liability; Conspiracy; Substantive offense
Jurisdiction: Federal, Virgin Islands
Cited Cases: 472 F.3d 89
Cited Statutes: None
Date: 10/01/2008

The Pinkerton theory of liability is so called because it was first enunciated in Pinkerton v. United States, 328 U.S. 640, 647 (1946).  See United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001).  The theory provides that, subject to certain conditions, the criminal act of one conspirator in furtherance of the members’ conspiracy can be attributable to the other conspirators for the purpose of holding them liable for the substantive offense.  Pinkerton, 328 U.S. at 647; see Lopez, 271 F.3d at 480. 

To sustain its burden of proof under a Pinkerton theory of liability, the prosecution must prove three essential elements beyond a reasonable doubt:

1.      That a conspiracy existed in that there was an agreement between individuals to align themselves with others in the criminal venture;

2.      That having so aligned themselves together, one or more of the others of them acted to commit the substantive offense; and

3.      That the substantive offense was committed in furtherance of the criminal venture in which the defendant had aligned himself with others.

Id. (emphasis added).  Four aspects of this test deserve special emphasis.

First, the first element requires, as a threshold matter, the existence of a “conspiracy.”  In this regard the Lopez court emphasizes that Pinkerton liability may apply only “as long as the evidence shows that a conspiracy existed.”  Id.  In turn, to prove a conspiracy, the […]

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