stronitsing wrote:freestallion wrote:stronitsing wrote:xlawschoolhopefulx wrote:stronitsing wrote:michael2015 wrote:Right. So why in Evidence Essay 4, couldn't the approach be solicitation instead of accomplice liability (which is how the Answer Key approaches it).
What am I missing why trying to "get him" on Solicitation would be wrong? Like am I just skipping the word that says "he is being prosecuted on a theory of accomplice liability"
Ah - well once you pay somebody, you become an accomplice and not just one who solicits. So solicitation goes out the window. But yeah, if they couldn't prove accomplice they could prosecute on solicitation.
Solicitation does not merge in NY, so I don't think it 'goes out the window.' BUT I think the reason they talked about accomplice liability and not solicitation or conspiracy is because accomplice liability is not in and of itself a crime. You are not charged with "accomplice," you are charged with having committed the underlying crime due to your role in requesting, commanding, importuning etc. Don't forget, solicitation and conspiracy are inchoate crimes- he would have been charged with the crime of solicitation or the crime of conspiracy. If they ask about the actual underlying crime, then always discuss accomplice.
you can't be charged as just an accomplice, ever?
No, being an 'accomplice' in itself is not a crime on its own. You are charged with 1) the underlying offense you aided/abetted, plus 2) any other crimes that are reasonably foreseeable that are committed by the principal.
Ah I didn't realize this. I appreciate it.
Does anyone have a good way of keeping the two assumption of risk theories straight? So one forbids recovery despite comparative negligence rules, and the other just limits it?
Same thing with keeping the two theories of NIED straight. Bystander NY NIED requires zone of danger/observation/close family/emotional distress, and if under a close call theory it only requires breach/zone of danger/emotional distress. Doesn't D's breach, typically at least, occur under bystander anyway liability? So it's almost identical but without the requirements of observation/close family?
So for assumption of risk there's primary which forbids all recovery by P - in NY, this is only for participation in sporting/recreation events. Then there's secondary where P ignores D's warnings and proceeds to get hurt. That will just reduce P's recovery under comparative negligence rules.