Abandonment and withdrawal is an affirmative criminal defense that arises when a defendant asserts that he or she never completed, or was not involved in, a criminal act because he or she abandoned or withdrew from the act prior to it happening. Abandonment and withdrawal is an affirmative defense, which means that the burden is on the defendant to show that he or she met all of the requirements for a successful withdrawal from the crime.
For most crimes, except conspiracy, a criminal defendant can establish that he or she successfully abandoned or withdrew from a crime by showing that he or she stopped participating in the crime prior to its ultimate commission and either that any actions undertaken by the defendant prior to abandoning the crime did not contribute to the successful completion of the crime or that the defendant notified the police of the planned crime as soon as possible in order to attempt to prevent the crime from taking place.
In many states, this is known as the voluntary abandonment defense, since the defendant must have decided to abandon the crime on a voluntary basis. This means that he or she cannot have done so under the belief that he or she was about to get caught or because some difficulty arose regarding the commission of the crime. Instead, the defendant must establish that he or she had an independent and voluntary change of heart and decided not to complete the crime.
Abandonment can occur when a defendant is planning to commit a crime on his or her own and later decides not to commit the crime, or when he or she is participating in a crime with other co-criminals and decides to no longer participate. When the crime is to be committed by multiple individuals, one participant’s abandonment of the crime does not absolve others from liability if the crime is ultimately completed. Additionally, after abandoning a planned criminal activity, a defendant cannot later reinitiate contact with other individuals who were involved in the planned crime. If he or she does so, the right to the defense of abandonment or withdrawal is unavailable.
Abandonment or withdrawal is also available as a defense to the crime of conspiracy, but it involves several elements unique to this crime. In order to withdraw from a conspiracy, a co-conspirator must:
Thus, a co-conspirator cannot withdraw by merely failing to participate further in the conspiracy. Instead, the individual must pro-actively move to withdraw and communicate this action to others involved in the conspiracy. Additionally, a withdrawal must occur before the primary goal of the conspiracy is completed. This means that a co-conspirator cannot participate in the conspiracy until its completion, withdraw, and then cite withdrawal as a defense to criminal charges. Finally, as with other crimes, if a co-conspirator reinitiates contact with his or her co-conspirators, the defense of abandonment and withdrawal is unavailable.
In some jurisdictions, in addition to the above requirements, a co-conspirator who withdraws must also actively work to prevent the crime that is the objective of the conspiracy from being completed. This typically involves alerting police as to any planned conduct.
