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Thank you, Albin Eser. I was very pleased to note in the Program that I am listed as a member of the Israeli delegation. This is an honor, but I would also would like to think that I am treated as an honorary member of the Max Planck delegation. I first studied the theory of criminal law at the Max Planck Institute in Freiburg and my work there has had a lasting influence on my thought.
My subject is complicity, which in general terms refers to the liability of one person for the act of another. I begin with an example to render clear the different approaches to this problem of derivative liability. The perpetrator Paul plans the robbery of a gas station and he offers part of the expected bounty to Alex for driving him to and from the scene of the crime. Carrying out this task, Alex knows of the criminal purpose and therefore it seems clear that in some way he should be held criminally liable. The problem is identifying the form of his liability.
Cardozo Professor of Jurisprudence, School of Law, Columbia University, New York City.
1 See StGB §§ 27(2), 49(1).
2 Model Penal Code, section 2.06(2)(a).
3 For a full discussion of this theory, with citations to appropriate authorities, see Fletcher, George P., Rethinking Criminal Law (1978) 642–644 Google Scholar.
4 On the scope of this justification, see, e.g. Model Penal Code § 3.02, StGB § 34.
5 Note the switch in terminology here. In private law, the principal is the person behind the scenes; the agent is the one who actually enters into the contract. In criminal law, the perpetrator, sometimes called the principal, is one who executes the deed at the scene.
6 See Martin v. Ohio, 480 U.S.228 (1987) (requiring the defendant to prove self-defense by a preponderance of the evidence did not violate due process).
7 This is known as the Pinkerton doctrine, as enunciated in Pinkerton v. United States, 328 U.S. 640 (1946).
8 The rule now seems to be in growing disfavor. See United States v. Staples, 114 S.Ct.1793 (1994), holding that defendant could not be convicted of the felony of possessing a prohibited firearm without proof of knowledge that the “gun would fire automatically”. See also State v. Guminga, 395 N.W.2d 344 (Minn. 1986), holding that defendant owner of a bar could be liable for criminal penalties for serving liquor to a minor only on proof that he had knowledge of the sale or that “he gave express or implied consent” to the sale. Yet in Guminga the court affirmed the possibility, on the same facts; of “civil penalties” such as license revocation and a fine.
