The Yale Law Journal. Volume 93, Number 4, March 1984 Imputed Criminal Liability* Paul H. Robinsont Table of Contents I. THE PRINCIPLES OF IMPUTED LIABILITY 613 II. PRACTICAL IMPLICATIONS 623 A. Recognition of Certain Offenses as Codified Forms of Imputation 623 B. Analogous Requirements and Results for Analogous Doctrines of Imputation 630 1. Causing Another To Engage in Criminal Conduct 631 2. Causing Oneself To Engage in Criminal Conduct 639 3. Creating Dangerous Situations 642 4. Substituting Equivalent Culpability 647 5. Aggregating Culpability 650 6. Presuming Evidence of Required Offense Elements 652 7. Presuming Evidence of Complicity 657 * Copyright 0 1984, Paul H. Robinson. t Professor of Law, Rutgers University School of Law-Camden. B.S., Rensselaer Polytechnic Institute, 1970; J.D., University of California at Los Angeles, 1973; LL.M., Harvard, 1974; Dipl. Leg. St., Cambridge, 1976. I am indebted to Jane A. Grall for her extensive assistance in the prepara- tion of this article. The Yale Law Journal Vol. 93: 609, 1984 8. Deterring Criminal Conduct 658 C. Significance of the Theory of Imputation for the Formulation and Application of Rules Imputing Liability 659 1. Voluntary Intoxication 660 2. The Aggravation of Culpability in Felony Murder 663 3. Liability for Crimes of Another 665 4. Strict Liability 669 5. Status and Possession Offenses 671 6. Liability for Omissions 672 III. SUMMARY AND CONCLUSION 675 Imputed Criminal Liability Typically, the set of elements defining a crime comprise what may be called the paradigm of liability for that offense: An actor is criminally liable if and only if the state proves all these elements.' The paradigm of an offense, however, does not always determine criminal liability. Even where all the elements of the paradigm are proven, rules and doctrines create exceptions that affect criminal liability. Some exceptions, suc i as insanity, duress, and law enforcement authority, can exculpate an actor even though his conduct and state of mind satisfy the paradigm for the offense charged. Such exculpating exceptions are grouped and analyzed as 2 defenses. Other exceptions inculpate actors who do not satisfy the paradigm for the offense charged. Such inculpating exceptions may be termed instances of "imputed" elements of an offense. Some writers have suggested that the imposition of liability absent a required element of the offense is illogical,3 immoral,4 or perhaps unconstitutional.' But just as there are many de- fenses-exceptions that exculpate despite satisfaction of the para- digm-there are also many common and well-established exceptions that inculpate despite the absence of a "required" element of the offense defi- nition. If, for example, an actor causes another person to engage in illegal conduct, a required element of conduct of the offense may be properly 1. As used here, "paradigm" refers to the paradigm for a particular offense, e.g., arson, rape, or murder. Each offense has its own paradigm, which can nearly always be determined by examining the offense definition. There are, however, exceptions to this simple methodology. Certain offense defini- tions incorporate exceptions to the paradigm. See infra note 6. Further, certain offenses are not state- ments of the paradigm but rather are codified exceptions to the paradigm of another offense. See infra pp. 624-29. 2. See generally I P. ROBINSON, CRIMINAL LAW DEFENSES § 11-41 (1984) (discussing system of defenses and its practical implications); Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLum. L. REV. 199, 203 (1982) (grouping defenses into failure of proof, offense modification, justi- fications, excuses, and public policy defenses). 3. Compare Director of Pub. Prosecutions v. Morgan, [1975] 2 All E.R. 347, 360 (Hailsham, L.J.) (logic requires jury instruction permitting finding that intoxication negates any element of of- fense) with Director of Pub. Prosecutions v. Majewski, [1976] 2 All E.R. 142, 157 (Salmon, L.J.) (logical requirement that prosecution must prove every element of offense cannot prevail where de- fendant's voluntary intoxication has caused absence of element) and id. at 166-68 (Edmund-Davies, LJ.) (same). For a scholarly discussion of the illogic of conviction absent proof of a required element, see G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART 569-72 (2d ed. 1961); MODEL PENAL CODE § 2.08 comment at 6-7 (Tent. Draft No. 9, 1959). It is, however, unprincipled imputation, and not imputation itself, that is illogical and immoral. See infra pp. 639-42. 4. See J. SMrrH & B. HOGAN, CRIMINAL LAW 37 (3d ed. 1973) (arguing that voluntarily intoxi- cated who cannot control their conduct should not be punished); cf. Majewski, 2 All E.R. at 168-71 (Edmund-Davies, L.J.) (recognizing but rejecting moral objections to conviction absent required cul- pable state of mind). 5. The due process clause, for example, requires the prosecution to prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970). If one interprets this to mean that every element of the definition of the offense charged must be proven, every form of imputed liability discussed in this Article could be unconstitutional unless written into the definition of the particular offense. The constitutionality of most of these doctrines, however, is undisputed. The Yale Law Journal Vol. 93: 609, 1984 imputed to the actor. Similarly, the requisite culpable state of mind may properly be imputed to an actor if he would have had the culpable state of mind but for his voluntary intoxication. These familiar results follow from special rules governing complicity and voluntary intoxication. Like the de- fenses of insanity, duress, and law enforcement authority, which also gen- erally appear outside the definition of an offense, these rules of imputation alter the requirements for criminal liability. Legislators could conceivably include all inculpatory exceptions to a particular paradigm within the definition of the offense.' Inculpatory ex- ceptions, however, often embody principles that are independent of any particular offense.7 Such general principles of inculpation provide an al- ternative basis for liability; they justify liability in the absence of every element of the offense. These general principles make it unnecessary to refer to the doctrines of imputation in the definition of each offense.8 6. Arson, for example, is defined in Tennessee to include in complicity "[any person who will- fully and maliciously sets fire to or burns, causes to be burned, or who aids, counsels or procures the burning of any house . .shall be guilty of arson ...." TENN. CODE ANN. § 39-3-202 (1982) (emphasis added); see also W. VA. CODE § 61-3-1 (1977) (arson committed by one who burns or aids, counsels, or procures burning of house). Similarly, definitions of an offense sometimes incorporate the rules governing voluntary intoxication, and impose liability even though intoxication may negate an otherwise required culpable state of mind: (a) A person commits an offense if he: (1) recklessly causes the death of an individual; or (2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual. TEx. PENAL CODE ANN. § 19.05(a) (Vernon 1974) (emphasis added). The paradigm of liability for arson under the Tennessee statute, generally requires proof that the actor set fire to or burnt the house. If the actor aids, counsels, or procures another to do the burning, however, that act is imputed. Similarly, the paradigm for manslaughter under the Texas statute in- dudes recklessness, but this element is imputed if the actor causes death if driving while intoxicated. In either case, a required element of the offense is eliminated, and liability is instead supported by a combination of the remaining elements of the paradigm and the special requirements of complicity (for arson) or intoxication (for manslaughter). Some general formulations of rules governing complicity and voluntary intoxication contain explicit provisions for imputation. The Model Penal Code, for example, does so in its complicity provision: "A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both." MODEL PENAL CODE § 2.06(1) (Proposed Offi- cial Draft 1962). Thus, if accountability is established, another's conduct may be imputed. The Model Penal Code provision governing voluntary intoxication is similar: "When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial." Id. § 2.08(2). 7. For example, aiding and abetting is so firmly entrenched as a doctrine applicable to all offenses that federal courts have recognized that the federal complicity provision, 18 U.S.C. § 2 (1982), is "an alternative charge in every count, whether explicit or implicit." United States v. Bryan, 483 F.2d 88, 95 (3d Cir. 1973) (quoting United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)). The Bryan case illustrates two significant characteristics of most doctrines of imputation: They are alternative charges, because the conditions for liability are different from the elements of the offense charged; and they have applicability beyond the offense charged. See Bryan, 483 F.2d at 95 (conviction under indictment charging aiding and abetting permissible even though proof at trial established that defend- ant acted as principal). For a discussion of the elements of complicity, i.e., the prerequisites to imputa- tion of elements of conduct under this theory, see infra p. 633 (contribution to offense); p. 637 (culpa- ble state of mind as to contribution); note 102 (culpability required by offense). 8. Cf.TENN. CODE ANN. § 39-1-303 (1982) (aiders and abettors deemed principal offenders).