What is abandonment/withdrawal?
In a criminal context, abandonment or withdrawal is the failure to complete a criminal action due to the defendant refusing to complete the action. This is usually the case in criminal cases involving conspiracies and/or accomplices. The burden of proof is on the defense with this affirmative defense and they must prove that the defendant renounced the criminal act in the process and refused to help commit the crime, even after participating in part of it. This action must be voluntary and the risks involved with the crime must not have been apparent to the defendant.
What is abandonment and withdrawal in relation to conspiracy?
If the defendant is the principal in a conspiracy case and prevents the individuals solicited from committing the planned crime, that individual may mounts an abandonment or withdrawal defense and prove that the plot was aborted before the illegal activity could be completed. One may not mount an abandonment or withdrawal simply because the defendant and accomplices realized they would be caught as there is the assumption that they would have carried out the crime under normal circumstances.
How does an abandonment or withdrawal defense work?
The defendant making an abandonment or withdrawal defense must not only prove that they lacked criminal purpose, but also made an attempt in good faith to prevent others, generally accomplices from also committing the crime. The individual must forsake the criminal activity voluntarily and not because they feared impending punishment or were compelled to do so. Remember that in conspiracy cases an individual that acts as an accessory or solicits other to commit a crime has equal and often greater liability than the others representing that person’s role in facilitating the criminal activity.
For one to make an abandonment or withdrawal defense, they must be the one that informed law enforcement, contributed in no way to the crime and has disavowed the criminal activity before the crime has taken place. Only then can this affirmative defense be successful and exempt the defendant from criminal liability.
Am abandonment or withdrawal is negated if the defendant maintains contact or affiliations with the conspirators, as this proves that the defendant has not disavowed all ties as implied by his or her abandonment or withdrawal defense.
Can I be protected after making an abandonment or withdrawal defense?
Yes, depending on the circumstances. If other conspirators or accomplices and their associates elude law enforcement, the state may be able to provide witness protection and other services to protect your identity. There is Federal Witness Protection in the most extreme, high risk situations where the defendant is in real danger of retaliation for tipping off law enforcement or stopping the criminal activity.
What is an alternative to an abandonment or withdrawal defense?
You may be able to make a case for being under duress, which forced you to cooperate with the crime. You had no criminal intention but had a reasonable belief that you would be harmed for not cooperating with the plot or criminal activity.
NEXT: Affirmative Defense