Complicity, Cause and Blame: A Study in the Interpretation of Doctrine Sanford H. Kadish TABLE OF CONTENTS PAGE I. THE CONCEPT OF BLAME ................................. 329 II. THE THEORY OF COMPLICITY ............................. 336 A. The Derivative Nature of the Liability.................. 337 B. The Action ........................................... 342 1. Influence ......................................... 343 2. Assistance ........................................ 344 C. The Intention ......................................... 346 1. The Basic Requirement ............................ 346 2. Strains in Application ............................. 349 3. Theory of the Intention Requirement ............... 353 D. The Result ........................................... 355 1. Successful Contributionsand Sine Qua Non Conditions ........................................ 357 2. Minimal Contributions ............................ 361 3. Contribution Unknown to the Principal............. 364 4. Remote and Proximate RelationshipsBetween Contribution and Result ........................... 366 III. CAUSING ACTIONS ........................................ 368 A. Nonculpable Actions .................................. 369 1. Theory of the Innocent-Agency Doctrine ............ 369 2. The Limits of the Innocent-Agency Doctrine ........ 372 B. Partly Culpable Actions ............................... 385 C. UnintendedActions ................................... 391 1. Nonvolitional Actions .............................. 392 2. Volitional Actions ................................. 398 CLOSING COMMENTS ........................................... 404 CALIFORNIA LAW REVIEW [Vol. 73:323 Complicity, Cause and Blame: A Study in the Interpretation of Doctrine Sanford H. Kadisht This is a study of a body of doctrine, the doctrine of complicity, that determines when one person is liable for a crime committed by another. Doctrine may be studied in several ways depending on the question asked. One question asks what the doctrine is in some jurisdiction. This is the question primarily addressed by treatise writers. Another question asks whether the doctrine serves the purposes of the law and, to the extent it does not, how it should be altered. This is the question addressed by those engaged in revising the law. I do not mean that these questions can be answered independently of one another, only that they are different questions. In any event, the question this study addresses is distinguishable from both. It asks how the doctrine of complicity can best be interpreted as a coherent concept. This entails articulating the relationships between different parts of complicity doctrine and between complicity and other doctrines that are related to it, particularly causa- tion, and identifying the general propositions that give logical and con- ceptual unity to the rules of liability. In short, the task is to develop the analytical framework that gives the doctrine of complicity its distinctive character. I make no claim that what is here proposed is the only defen- sible interpretation of the doctrine of complicity. I offer it only as the best account I have been able to produce. While the question of interpretation is distinguishable from the questions of what the doctrine is and what it ought to be, it is apparent that it cannot be addressed apart from these other questions. Consider first the question of what the law is. One can hardly undertake an inter- t Alexander and May T. Morrison Professor of Law, Boalt Hall School of Law, University of California, Berkeley. B.S.S. 1942, City College of New York; LL.B. 1948, Columbia Law School; Dr. Jur. (h.c.) 1983, University of Cologne. I wrote this Article while a Visiting Fellow at All Souls College, Oxford. I am grateful to the Warden and Fellows for allowing me the privilege of their fellowship. I subsequently rewrote portions of it in light of helpful criticism received at two confer- ences: the Conference on the Legal Philosophy of H.L.A. Hart, in Jerusalem in March 1984, and the German-Anglo-American Workshop on Basic Problems in Criminal Theory, Max-Planck Institut ftir Auslundisches und Internationales Strafrecht, Freiburg-im-Breisgau, West Germany, July 1984. I am grateful to the participants for their generous help, as well as to other colleagues who have taken the trouble to read and comment on earlier drafts. Since it would be pretentious to name them all and ungrateful to name only some I shall name none. Named or not, my debt to my friends is great, and I acknowledge it with profound appreciation. Students, however, are different. I wish to acknowledge my gratitude to Christopher Kennedy and Lindsee Granfield for their outstanding research assistance. 1985] COMPLICITY AND CA USA TION pretation without describing, in some sense, what it is that is being inter- preted. This Article, therefore, presents a description of the law of complicity in common law jurisdictions to serve as the empirical basis of the interpretive enterprise. At the same time, my description of the law differs in several ways from what one would expect to find in a hornbook or treatise. First, it does not attempt to depict the state of the law in any particular jurisdic- tion at any particular time. I have selected cases, commentary, and stat- utes from a variety of common law jurisdictions in order to identify the central problems of complicity and the dominant resolutions of those problems. Second, my principle of selection was not photographic faith- fulness. While I hope I'have neither distorted what courts have done nor omitted what did not suit my purpose, I cannot claim that my descrip- tion is purely neutral. Interpretation and description are not wholly sep- arate actions. They inform one another. My description of the law is inevitably affected by my interpretation of it. There is no escape. Finally, since my thesis is that the concept of complicity, reflected in the main body of common law decisions, entails some conclusions and fore- closes others, I have felt free to conclude that certain propositions "must" represent the law, even where few, if any, cases have had occa- sion so to hold. Similarly, I have sometimes concluded that other prop- ositions do not belong to the doctrine of complicity, even where some courts have announced them. I must also qualify my statement that I am not concerned with either judging the doctrine of complicity or proposing ways to improve it. I do not mean to imply that doctrine may be understood as some disem- bodied thing that exists independent of social purposes or moral con- straints. It is true that doctrine tends to have a life of its own. Considerations of consistency and coherence lead toward certain conclu- sions and away from others, quite apart from judgments of the social desirability of holding the defendant liable in particular cases. At the same time, no doctrine could long survive if it worked at cross purposes to the social objectives of the system of law in which it functioned. Unless the system were static and unresponsive, it would soon be replaced by new doctrine with new starting points. In the long run, the demands of consistency and coherence serve to give doctrine an independent life only to the extent that doctrine continues to serve the purposes of law. A further and deeper relationship between doctrine and normative considerations should be emphasized at the outset, because it suggests why doctrines of criminal liability are worth taking seriously despite the traditional American skepticism of doctrine.' The decision to impose 1. For a discussion of a current revival of scholarly interest in taking doctrine seriously, see CALIFORNIA LAW REVIEW [Vol. 73:323 criminal liability is not governed solely by the social purposes of punish- ment. It is governed as well by the moral justification of punishing peo- ple for both their conduct and the results of their conduct. Indeed, criminal liability is best understood as responding primarily to considera- tions of the latter kind; the attainment of social purposes is confined, at least in most cases, to punishment for actions for which the defendant can be justly blamed. It follows that doctrines of criminal liability, being generalizations of the conditions in which punishment is proper, are pri- marily statements of normative import. Therefore, the kind of doctrinal interpretation attempted in this study-an analysis of the general prop- ositions that give coherence to the body of rules governing liability in one area of the criminal law-necessarily entails an attempt to identify the nature of the pervasive intuitive judgments that render criminal liability acceptable in some circumstances, but not in others. In his lecture The Path of the Law,2 Holmes argued that the law is best understood from the lawyer's point of view by studying its actual operation, rather than its response to the influence of logic and morality. To this extent the focus of this study is distinctly un-Holmesian, since it is centrally concerned with the force of logical coherence and morality on the shape of doctrine. On the other hand, Holmes observed in the same lecture that the "law is the witness and external deposit of our moral life."' If that is true of the law generally, it is surely true of legal doc- trines of criminal liability. My purpose in this Article is to see what we can learn, about the law and about ourselves, from a study of the moral deposit discoverable in the law of criminal complicity. It may be useful at the outset to