Criminal Law.  A judicially created doctrine under which a conspirator may be convicted of the substantive offense committed by his co-conspirator if: (1) the substantive offense was committed in furtherance of the conspiracy; (2) the offense fell within the scope of the unlawful project; and (3) the offense could reasonably have been foreseen to be a natural consequence of the unlawful agreement.

Thus, under the Pinkerton doctrine, the act of one conspirator may be treated as the act of all conspirators and all the conspirators may be convicted of a crime committed by one of the conspirators, despite the fact that the other conspirators did not personally participate in that crime.

History of the Pinkerton Doctrine

The Pinkerton rule of liability of conspirators for the substantive crimes committed by their co-conspirators is derived from the United States Supreme Court’s opinion in Pinkerton v. United States, 328 U.S. 640 (1946).  In that case, the Supreme Court established a theory of vicarious liability that permitted conviction of a person for a substantive crime, even though that particular person did not directly participate in the commission of the substantive offense.  The Court held that all that was necessary for conviction was the fact that the defendant and the person who actually committed the crime were both members of a conspiracy and that this substantive crime was committed in furtherance of that conspiracy.

The concept espoused in that case has become known as the Pinkerton doctrine.  It is a core concept utilized in federal criminal prosecutions of all kinds.

Elements of the Pinkerton Doctrine

In order for a defendant to be found guilty based on the Pinkerton theory of liability, the government must prove each of the following elements:

  1. That the defendant was a member of the conspiracy;
  2. That after he joined the conspiracy, and while he was still a member of that conspiracy, one or more of the other members of the conspiracy committed the substantive offense;
  3. That the substantive offense was committed to help advance the conspiracy; and
  4. That the substantive offense within the reasonably foreseeable scope of the unlawful project conspired by the defendant and his co-conspirators.

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