Helping, doing, and the grammar of complicity

Criminal Justice Ethics

Volumn 15, Issue 1, 1996, Pages 25-35

  Yeager, Daniel ^a  

^a CALIFORNIA WESTERN SCHOOL OF LAW   (United States)

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EID: 26444585656     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1996.9992004     Document Type: Article

References (130)

1. J.L. AUSTIN, A Plea for Excuses, in PHILOSOPHICAL PAPERS 186 (J-O. Urmson & G.J. Warnock, 3d ed. 1979).
2. Grammar refers to the conditions under which words apply sensibly in the world-to their point, working, essence, or logic.
3. L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 116 (G.E.M. Anscombe trans. 3d ed. 1958);
4. S. CAVELL, MUST WE MEAN WHAT WE SAY? 1-12 (1976).
5. Johnson, The Unnecessary Crime of Conspiracy, 61 CALIF. L. REV. 1137 (1973).
6. MODEL PENAL CODE § 5.01(2)(a) (Proposed Official Draft 1962).
7. Id. § 5.01(2)(c).
8. Id. § 5.01(2)(f).
9. Id. § 5.02.
10. Id. § 5.03(l)(a)-(b).
11. A principal or perpetrator is the primary actor-someone whose liability can be established independently of all other parties. G. FLETCHER, RETHINKING CRIMINAL LAW 637 (1978).
12. Robinson, Imputed Criminal Liability, 93 YALE L.J. 609 (1984).
13. Kadish, Complicity, Cause, and Blame: A Study in the Interpretation of Doctrine, 73 CALIF. L. REV. 323 (1985).
14. Dressier, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem, 37 HASTINGS L.J. 91 (1985).
15. K.J.M. SMITH, A MODERN TREATISE ON THE LAW OF CRIMINAL COMPLICITY (1991).
16. Buxton, Complicity in the Criminal Code, 85 L.Q. REV. 252 (1969);
17. Buxton, Complicity and the Law Commission, 1973 CRIM. L. REV. 223;
18. Spencer, Trying to Help Another Person Commit a Crime, in CRIMINAL LAW: ESSAYS IN HONOUR OF J.C SMITH 148 (Peter Smith ed. 1987).
19. Great Britain, The Law Commission Consultation Paper No. 131, Assisting and Encouraging Crime §§ 4.24-.26, at 90-91 (1993). Professor Kadish kindly brought this document to my attention.
20. MODEL PENAL CODE § 2.06(3) (a) (ii) (Proposed Official Draft 1962);
21. Model Penal Code and Commentaries explanatory note at 297, comment at 314 (1985).
22. MODEL PENAL CODE § 2.06 (Proposed Official Draft 1962) (located in Article 2, which defines General Principles of Liability, including complicity);
23. id. §§ 5.01-.07 (located in Article 5, which defines and sets the punishments for Inchoate Crimes, including attempt, solicitation, conspiracy, and possession of weapons).
24. MODEL PENAL CODE § 2.06(l)-(5) (Proposed Official Draft 1962);
25. CALIFORNIA PENAL CODE § 971 (West 1995).
26. MODEL PENAL CODE § 2.06(3) (Proposed Official Draft 1962);
27. CALIFORNIA JURY INSTRUCTIONS (CRIMINAL) § 3.01 (West 1988). The attitude of the principal is part of what it means for him to act criminally or commit a crime. Likewise, the attitude of the helper is part of what it means for him to act criminally, help, or try to help the principal offender
28. Hornsby, Action and Aberration, 142 U. PA. L. REV. 1719, 1727 (1994) (There is an action if and only if there is an event of a person's intentionally doing something.);
29. Gudel, Beyond Causation: The Interpretation of Action and the Mixed Motives Problem in Employment Discrimination Law, 70 TEX. L. REV. 17, 89 (1991) (Th[e] picture of action as consisting of two causally related components, one mental and one physical, is false to the way we normally talk and think about human acts. When we observe our fellow humans, we do not see merely bodily movements.).
30. J. SEARLE, INTENTIONALITY 110 (1983).
31. G. FLETCHER, supra note 10, § 8.5, at 639;
32. Kadish, supra note 12, at 371.
33. MODEL PENAL CODE § 2.06(2)(a) (Proposed Official Draft 1962);
34. Model Penal Code and Commentaries explanatory note at 297, comment at 300-03 (1985) (no mention of whether originating actor must be aware of agent's innocence or of exactly which defenses make an agent innocent).
35. People V. Washington, 402 P.2d 130 (Cal. 1965).
36. K.J.M. SMITH, supra note 14, at 99 & n.17.
37. Id. at 97.
38. Id. at 103.
39. K.J.M. SMITH, supra note 14, at 105.
40. id. at 103-10;
41. Kadish, supra note 12, at 370-71, 382-84;
42. Alldridge, The Doctrine of Innocent Agency, 2 CRIM. L. FORUM 45, 55-59 (1990).
43. G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART § 120, at 351-52 (2ded. 1961).
44. Moore, Causation and the Excuses, 73 CALIF L. REV. 1091, 1102-12 (1985).
45. Danto, Basic Actions, in THE PHILOSOPHY OF ACTION 43,45 (A. White ed. 1968) ([P]erforming an action is not a truth-condition for 'causing something to happen').
46. A. WHITE, Introduction to THE PHILOSOPHY OF ACTION 2 (A. White ed. 1968) (The successes we chalk up are the things we do, yet they are not the actions we take.).
47. Id. at 3.
48. R. V. Cogan & Leak, 1976 Q.B. 217 (Eng. CA.).
49. Id. at 223.
50. G. FLETCHER, supra note 10, § 8.7.3, at 666 n.25.
51. Id. § 8.7.3, at 667.
52. Curley, Excusing Rape, 5 PHIL. & PUB. AFF. 325, 342-43 (1976);
53. Alldridge, supra note 30, at 50-52, 59.
54. Kadish, supra note 12, at 382 (Fletcher's approach to innocent wrongdoing, even with its drawbacks, appears to be the best doctrinal move to justify liability that a court could make without statutory changes).
55. Id. at 374.
56. Id. at 373 n.143.
57. Id. at 374.
58. J. SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE 8 (1974).
59. C. DICKENS, OLIVER TWIST 461 (London, 1966) (1st ed. Londonl 837-39).
60. R. V. Cogan & Leak, 1976 Q.B. 217, 221 (Eng. CA.).
61. Here I am not talking about joint principality, under which two parties divide the elements of an offense; e.g., two parties rob when one commits the assault and the other the larceny. Since both the force or threat of force and the taking of property are analytically necessary to any robbery, neither party has the purpose to help robbery; both have the purpose of committing it. Contrariwise, where the help of one party is necessary only as an empirical or synthetic matter-that is, where a helper does not fulfill a statutory definition of crime or one of its elements, but his help happens to be necessary for the crime to succeed on these facts, then he is helping and not doing, regardless of how he may characterize his own actions.
62. J. SEARLE, supra note 46, at 4-11 (a proposition's analyticity makes it true in virtue of its meaning or by definition. So, Rectangles are four-sided is analytic, whereas My son is now eating an apple is not; the latter statement is not analytic because its truth must be verified).
63. For example, that a getaway driver may be needed for a successful robbery must be observed to be known; getaway drivers are not analytically necessary to robbery. Therefore, cases of joint principality do not involve help, regardless of how a joint principal characterizes his actions.
64. G. FLETCHER, supra note 10, § 8.6.2, at 654-55 (cases of joint principality are hard because it is sometimes virtually impossible to quantify the degree of causal contribution between, say, the person who supplies the murder weapon and the person who pulls the trigger).
65. J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 126 q.O. Urmson & M. Sbisa 2d ed. 1975). ([F]irstly, the distinction between doing and trying to do is already there in the illocutionary verb [e.g., argue] as well as in the perlocutionary verb [e.g., convince]; we distinguish arguing from trying to argue as well as convincing from trying to convince. Further, many illocutionary acts are not cases of trying to do any perlocutionary act; for example, to promise is not to try to do anything.).
66. W. PAGE KEETON et al., PROSSER AND KEETON ON THE LAW OF TORTS § 41, at 265-69 (5th ed. 1984 & Supp. 1988);
67. W. LAFAVE & A. SCOTT, JR., CRIMINAL LAW § 3.12, at 277-81 (2ded.l986).
68. K.J.M. SMITH, supra note 14, at 55-93;
69. Sayre, Criminal Responsibility for the Acts of Another, 43 HARV. L. REV. 689, 702-08 (1930);
70. Mueller, Note, The Mens Rea of Accomplice Liability, 61 S. CAL. L. REV. 2169, 2170-72 (1988).
71. Perkins, Parties to Crime, 89 U. PA. L. REV. 581, 600 (1941).
72. Kadish, supra note 12, at 358-59.
73. K.J.M. SMITH, supra note 14, at 19, 87-88;
74. Dressier, supra note 13, at 132,139-40;
75. Robinson, supra note 11, at 657-58.
76. Kadish, supra note 12, at 359.
77. This example is taken from a German Case, Judgment of May 10, 1883, 8 RGSt. 267 (cited in G. FLETCHER, supra note 10, § 8.8.2, at 677-78).
78. State ex rel. Attorney General v. Tally, 102 Ala. 25,69,15 So. 722,734 (1894).
79. Kadish, supra note 12, at 359.
80. See id.at 361 (If I provide the crowbar that the principal uses to gain illegal entry, my assistance was a but-for condition of the entry. To be sure, he might have entered anyway-with his crowbar or by other means. But he did not. My aid was necessary for what actually happened.);
81. G. WILLIAMS, supra note 31, § 121, at 359 (It is enough that the accused has facilitated the crime, even though it would probably have been committed without his assistance.).
82. K.J.M. SMITH, supra note 14, at 84.
83. Kadish, supra note 12, at 360.
84. at 336 (citing H.L. A. HART & A. HONORÉ, CAUSATION IN THE LAW 69 (1959)).
85. Gudel, supra note 20, at 80.
86. Dressier, supra note 13, at 124-25. (Emphasis added).
87. Id. at 130-34.
88. Id. at 133-34 n.206.
89. Id. at 125.
90. Robinson, supra note 11, at 632.
91. Id. at 632-33.
92. Id. at 635.
93. Id. at 633.
94. CALIFORNIA PENAL CODE §§ 663-65 (West 1995).
95. People V. Orndorff, 261 Cal. App. 2d 212,67 Cal. Rptr. 824 (1968);
96. CALIFORNIA JURY INSTRUCTIONS (CRIMINAL) § 6.00 (West 1988).
97. MODEL PENAL CODE § 5.01(1)-(3) (Proposed Official Draft 1962).
98. CALIFORNIA PENAL CODE § 664(a)-(c) (West 1995).
99. MODEL PENAL CODE § 5.05(1) (Proposed Official Draft 1962).
100. People V. Travis, 171 Cal. App. 2d 842, 844 (1959).
101. MODEL PENAL CODE §§ 1.07(1)(b), 5.05(3) (Proposed Official Draft 1962).
102. Regina V. Richards, 1974 Q.B. 776 (Eng. C.A.).
103. G. FLETCHER, supra note 10, § 3.1.2, at 118-19.
104. Dressier, supra note 13, at 111-12.
105. L. KATZ, BAD ACTS AND GUILTY MINDS 261 (1987) ([P]sychological evidence backs up that two heads are better than one is more likely true than competing folk-saying about too many cooks spoiling the broth).
106. Id. at 252.
107. See supra notes 49-50 and accompanying text.
108. Standefer v. United States, 447 U.S. 10, 15-20 (1980) (reviewing legislative history here and in England);
109. W. LAFAVE & A. SCOTT, supra note 51, § 6.6, at 572-75 (discussing procedural problems that led to legislative changes and changes themselves).
110. G. FLETCHER, supra note 10, §§ 8.6.2-8.7.4, at 654-73.
111. Kadish, supra note 12, at 356.
112. G. WILLIAMS, supra note 31, § 126, at 382.
113. K.J.M. SMITH, supra note 14, at 55.
114. Id. at 93.
115. Id. at 70-78.
116. Buxton, Complicity in the Criminal Code, supra note 15, at 268.
117. Buxton, Complicity and the Law Commission, supra note 15, at 223-30;
118. CONSULTATION PAPER NO. 131, supra note 16, § 4.24, at 90 (It is logically impossible that it should become the law, that the accessory must cause the commission of the principal crime; and for that reason also the actual occurrence of the principal crime is not taken into account in assessing the accessory's culpability.).
119. Buxton, Complicity and the Law Commission, supra note 15, at 228-29.
120. G. FLETCHER, supra note 10, § 8.5, at 635.
121. Id. § 8.8.2, at 679 (citing MODEL PENAL CODE § 2.06(3)(a)(ii) (Proposed Official Draft 1962)).
122. Id. § 8.8.2, at 680.
123. Id. § 8.8.2, at 681.
124. MODEL PENAL CODE § 5.01(3) (Proposed Official Draft 1962) (where principal commits or attempts no offense despite helper's aid or encouragement, helper has attempted the offense he tried but failed to help).
125. Smith, Secondary Participation and Inchoate Offenses, in CRIME, PROOF AND PUNISHMENT: ESSAYS IN MEMORY OF SIR RUPERT CROSS 21,24 (1981) (The recognition by the law of the distinct crime of incitement means that . . . the mere incitement of another to commit an offence does not amount to an attempt to commit it.).
126. G. FLETCHER, supra note 10, § 8.8.2, at 680-81.
127. Symposium, issues in the Philosophy of Law, 37 ARIZ. L. REV. 117 (1995);
128. Fletcher, Constructing a Theory of Impossible Attempts, 5 CRIM. J. ETHICS 53 (1986).
129. MODEL PENAL CODE § 5.04(1) (Proposed Official Draft 1962) (agreement with someone who feigns agreement or lacks capacity to agree is still a conspiracy).
130. supra note 1 and accompanying text.