causation in criminal law

8/12/2019 Causation in Criminal Law

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Causation: Its Role in Criminal Law Theory

Causation analysis is so common a part of everyday thought processes that it is easy to ignore or

downplay its importance in criminal law. In fact, however, causation is a concept deeply

imbedded in human thought and expressed even among the most [ancient] people in their effort

to understand the way of things.1

The role of causality in the criminal law is the same as it is in the evaluation of any everyday

even: to determine why something occurred. More specifically, principles of causation assist us

in deciding who or what among the various people and forces existing the world should be held

responsible for the resulting harm. The value of causation in determining criminal responsibility

is virtually irrefutable. Imagine a law that provided that any person in physical proximity to an

accident could be punished for the resulting harm, even if he had nothing to do with causing the

injury. Such a draconian rule would have immense negative social consequences. People would

rationally fear that the lightning bolt of the law might strike them at any time; therefore, they

would be deterred from socially desirable, and not simply unduly dangerous, activities.

This utilitarian argument, however, does not adequately explain the moral importance of the

causation requirement in the criminal law. It does not explain why, in the hypothetical

The role of causation in the criminal law finds its primary moral justification in retributive

concepts of just deserts. Unlike tort law, in which morally innocent people are frequently held

vicariously responsible for the wrongful acts of others, the criminal law is wedded to the concept

of personal responsibility for crimes. This notion is rooted in the , inarticulate, subconscious

sense of justice of the man on the street.2

The principle of causation is the instrument society employs to ensure that criminal

responsibility is personal. It is the basis that links the actor to the social harm. Moreover,

:causation serves as themechanism for determining how much the wrongdoer owes society and

ought to repay it, i.e., causation principles help to quantify his just deserts. Under retributive

principles, a wrongdoers punishment should not exceed the harm that he has caused. This

principle explains, for example, why an attempted murder is punished less severely than a

murder at common law.

1Hall at 248

2Francis Bowes Sayre, Criminal Responsibility For the Acts of Another, 43 Harv.L.Rev.689, 717 (1930).


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Causation: Criminal Law versus Tort

Causation is a litigated issue in both tort and criminal law. However, causal problems are fewer

and often less factually complex in criminal cases. Consequently, much that we think we knowabout causation in the criminal law springs from tort law and from scholarly literature focused on

that are.

Nonetheless, tort theories of causation should not be equated with criminal law conceptions of

causation. This is because of the different purposes of the two systems of law. Tort law generally

seeks to identify the most suitable party on whom to place financial responsibility for negligently

or innocently caused harm, whereas the criminal law seeks to determine whether and to what

extent an intentional wrongdoer ought to be condemned by the community and punished.

Because of the higher stakes in the criminal law, and its especially strong commitment to

personal, rather than vicarious, responsibility, some courts expressly provide that a tort

conception of causation is insufficient to impose criminal responsibility.3Instead, a stricter test,

requiring a closer connection between the defendants conduct ad the rsulting harm, is applied.

This dichotomy is observable in the criminal laws treatment of the second prong of the

causation inquiry i.e., proximate causation.4

Actual Cause

But-For (sine Qua Non) Test

Causation analysis is divisible into two parts. Actual cause, or what is sometimes called

factual cause or cause-in-fact, constitutes the first prong. There can be no criminal

responsibility for resulting social harm unless it can be shown that the defendants conduct was

a cause-in-fact of the prohibited result.5In order to make this determination, courts traditionally

apply the but-for or sine qua non test. This test may be stated as follows: But for Ds

voluntary act or omission, would the social harm have occurred when it did?If the answer is in

the negative, i.e., social harm would nothave occurred when it did but for Ds voluntary conduct

or omission, than D is an actual cause of the result.

The but-for test serves a limited, but crucial, purpose. It functions in a negative manner toexclude certain forces, including human ones, from responsibility for ensuing harm. That is,

subject to one possible and very limited exception,Dcannot be held criminally responsible for

3Commonwealth v, Rementer, v. Root

4

5Velazques v. State, 561 so.2d 347, 350 (Fla. Ct. App. 1990).


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social harm unless the prosecution proves beyond reasonable doubt that he is a but-for cause of

the harm.6

The fact that Ds conduct is determined to be an actual cause of a result does not mean,

however, that he will be held criminally responsible for the harm. To be guilty, D must have

acted with the requisite mens rea, and he must also be theproximate cause of the social harm.

Causes versus Conditions

Dpulls the trigger of a gun, and a bullet is propelled from the gun into Vs chest, causing Vs

death. Common sense tells us that D was the cause of the death: but for Ds voluntary act of

pulling the trigger of the gun, V would not die when he did.

In fact, however, there are additional actual causes of Vs death. For example, V would not

have died but for the fact that his heart muscle was too weak to withstand the intrusion of the

bullet. Other causes of the death are found in certain principles of physics that explain how an

why the pulling of the trigger results in a bullet moving at a fast rate of speed. Indeed, if Vs

mother had not given birth to V, he could not have been killed by D.

Usually a court will either ignore these latter causes: or identify them more realistically as

necessary conditions for the harm to occur. Although conditions may technically meet thesine

qua non testof causation, their exclusion from the latter category is consistent with a common

sense view of the issue.

In determining causation, people focus on what is interesting in an event. They focus on the

abnormal, the matters that seem out of the ordinary. Conditions are normal events or

circumstances that, although necessary for the result to occur, do not positively contribute to it.Ds firing of the gun is the act that is interesting and out of the ordinary. It is Ds conduct,

therefore, and not laws of physics, the structure of Vs heart, or Vs prior birth, that affirmatively

contributed to the death.

Special Actual Cause problems

Actual causationand mens rea are independent concepts, both of which must be proven in a

criminal prosecution.7Frequently, however these doctrines are confused.

6Welch v. State, 45 Ala. App. 657, 235 So.2d 906 (1970)

7State vs Boles


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Causation without Mens Rea

D has a minor argument with her husband, V. V, upset about the argument, leaves the house, and

walks across the street. As he does, he is struck and killed by an automobile driven by x. Is D an

actual cause of Vs death? Unless V had planned to cross that street at that moment anyway, the

answer is yes: but for D having the argument with V, V would not have crossed the street atthat moment and, therefore, would not have been struck by X.

This does not mean, however, that D may be convicted of a crime pertaining to Vs death. First,

D was not the sole cause of the harm. Xs conduct was another cause. So, too, was Vs decision

to leave the house and cross the street. Actual cause, it will be remembered, serves only to

eliminatecandidates for responsibility; it does not resolve the matter of ultimate causal

responsibility, which awaits proximate-causation analysis. Second, but more immediately to the

point, the facts do not suggest that D possessed a culpable state of mind- any mens rea-regarding

Vs death. Thus, we have a case of but-for causation without mens rea.

Mens ReaWithout Causation

Just as a person may be the actual cause of resulting harm without having a mens rea, he may

also posses a culpable state of mind without being the actual cause of the harm.

For example, suppose that D1, with the intent to kill V, shoots V, barely nicking him. At the

same moment, D2 independently and accidentally, shoots V in the heart, V dies instantly. D1

intended to kill V. D2 did not intend to kill V. Nonetheless, D2s conduct is the sole cause of Vs

death: but for D2 accidentally firing the gun, V would not have died when he did. D1s conduct

was ineffectual. As a result, D1 should not be convicted for Vs death. D2 is the only possible

candidate for criminal prosecution, although he may be acquitted because he lacked the requisite

mens rea.

Multiple Actual Causes

Accelerating a Result

D1 intentionally shoots V in the stomach. Assume that medical testimony would prove that V

would have died from the wound in one hour. However, simultaneously and independently of

D1, D2 intentionally shoots V in the stomach. Medical evidence would show that V would have

died from the latter wound in one hour. As a result of the two wounds, V dies in five minutes.

Who is the cause of Vs death? At first glance it may appear that application of but-for test will

result in the conclusion that neither D1 nor D2 was an actual cause of the death. In fact,

however, both, actors may properly be described as actual causes of Vs death. Both may

successfully be prosecuted for murder.


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A careful application of the but-for test supports this conclusion. It must be remembered that this

test asks whether, but for the voluntary act of the defendant, the harm would have occurred when

it did. The italicized words are essential to the core application if the test. After all, ultimately

everyone dies. No act can do more than accelerate the process.

With this point in mind it is evident that D1 accelerated Vs death. Ask thesine qua nonquestion: but for D1s voluntary act, would V have died when he did? The answer is that he

would not have died when he did; he would have in an hour as the result of the wound

simultaneously inflicted by D2. Because D1s actions accelerated the deathprocess, D1 is an

actual cause of the death. One need only substitute D2 for D1 in this analysis to reach the same

causal conclusion regarding D2.

Or consider the facts in Oxendine v. State. V was the tragic victim of two separate acts of child

abuse: first, he sustained internal injuries from a beating inflicted by X; one day later, D, Vs

father, inflicted additional injuries, V died later that day. X and D were prosecuted for Vs death.

The state introduced evidence regarding the cause of death: one physician testified that he couldnot determine whether one or both injuries caused Vs death; a second doctor stated that the

earlier injury inflicted by X was the underlying cause of the death; he could not state whether

Ds actions accelerated the process.

Based on this evidence, the court held that D was entitled to a directed verdict or acquittal.

However, if the state had introduced evidence that the beating inflicted by D had hastened Vs

death by even the slightest degree, D could properly have been found to be an actual cause of the

death.

Concurrent Sufficient Causes

D1 shoots V in the heart; simultaneously and independently, D2 shoots V in the head. V dies

instantly. Medical evidence indicates that either attack alone would have killed V instantly.

In the real world such events rarely occur. More often, D1 and D2 will be acting in concruent, so

that their joint conduct may be analyzed as if they were one party. Or one wound will accelerate

the result caused by the other. Another possibility in a dual attack is that neither wound will be

mortal, but acting together they result in death. As the facts are described here, however, D1 and

D2 are concurrent sufficient causes of Vs death. That is, either act alone was sufficient to

cause the result that occurred when it did. Our intuitions probably suggest that both actors should

be convicted of murder. Yet the but-for test seems to fail us here: but for D1s act of shooting V

in the heart, V would have died when he did as the result of D2s gunshot to Vs head. Apply the

same test to D2s conduct; D2 is also relieved of responsibility. If this analysis is correct, if no

other principle is applicable, D1 and D2 may be convicted of attempted murder but no more.


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Two ways to avoid this result have been suggested. First, some criminal law court import from

tort law its solution in comparable circumstances, which is to rephrase causation test to ask

whether the defendant was a substantial factor in causing the prohibited harm.8

The difficulty with substantial factor test is notonly that the critical term is never defined, but

that it is difficult to comprehend how a persons conduct can never be a substantial factor incausing a result if the harm was going to occur when it did without his contribution. The only

was in which it may fairly be said that a concurrent sufficient cause is a substantial factor in the

outcome is to point out that force would have been the cause of the harm if circumstances had

not been different (i.e., if the other force had not materialized). However, this is not the way we

ordinarily talk about causation. If it were, the would be killer in the example that began this

chapter would not have been guilty of murder, rather than attempted murder.

A second method of resolving the causal quandary is to retain the but-for test in these

circumstances, but to elaborate on it. Two extra words are added, so that the test becomes: but

for Ds voluntary act would the social harm have occurred when and as it did.9

In essence, thistechnique refines the description of the result for which the defendants are prosecuted. Thus, in

the present example, the result would not be described as the death of V, but rather as the

death of V by two simultaneous mortal wounds. Applying the but-for test in this manner, both

D1 and D2 satisfy the causation standard, because the result-death from two mortal wounds-

could not have occurred without the presence of both actors.

Obstructed Cause

D1 shoots V in the stomach. Simultaneously and independently, D2 shoots V in the head three

times, killing him instantly.

Although it may appear that D1 is causally linked to Vs death, this may not be the case. A

coroner might testify the wound inflicted by D1 did not contribute to Vs death, i.e., that three

bullets in the head would have killed instantly, even in the absence of the abdominal wound.

Under such circumstances, D1 is no more the cause of Vs death than if, just a split second

before D1 fired the gun, V had been struck by a bolt of lightning that killed him instantly. In the

latter case we would not say that D1 killed V; rather, we would say the he attempted to kill V,

but his efforts were obstructed by a separate force, which actually caused the result. The same

analysis applies to D1 and D2: D1 attempted to take Vs life; he was thwarted in this goal

because D2 was a more effective killer.

8Abdersob v Mineapolis, St.P

9Perkins vs Boyce


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Proximate Cause

Mankind might still be in Eden, but for Adams biting an apple.10

The present point of this

remark is to remind us that the sole purpose of the but-for test of causation is to identify

candidates for responsibility for an event. From this pool, which may include many actors

stemming over an extended period of time,11

the proximate or legal of the social harm mustbe selected.

Direct Cause

In many cases, no serious litigable issue of proximate causation arises. For example, suppose that

D shoots V, and V dies instantly, Or, suppose that D shoots V, and V is taken to hospital where

he dies after proper medical care. In both cases, courts are apt to say that D was the direct

cause of the result. That is, no event of causal significance intervened between Ds conduct and

the social harm for which he is being prosecuted. In the first case, the death occurred instantly; in

the second hypothetical, nothing done by the medical personnel aggravated Vs injuries oraccelerated Vs death.

The closest thing to a bright-line rule in the realm of proximate case is this: an act that is a direct

cause of social harm is also a proximate cause of it. This rule makes sense. By definition, a

direct cause is a force already determined to be an actual cause of the undesired result.In as

much as no other causal factors have intervened, there is no more proximate party to whom to

shift responsibility for the results.

Intervening Causes

Overview

An intervening cause is an independent force that operates in producing harm to another after

the defendants voluntary act has been committed or his omission has occurred.12

That is, if one

were to draw a line, put the words Ds voluntary act/omission at the beginning of the line, and

mark down social harm as its end, the intervening causes would be those but-for causal forces

that arose during the time period represented by the line.

Although not exhaustive of the circumstances in which intervening causes arise, many cases fit

this general pattern: D gravely harms V. Thereafter, another force intervenes. This force

aggravates Vs injuries or accelerates the inevitable. The intervention usually comes in the

wrongdoing by X, a third party, or as the result of a dangerous or suicidal act by V, the victim.

Sometimes the intervening force is a natural force (an act of God).

10Welch v State

11State vs Gaven

12State vs Marti


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The legal issue for consideration in such cases is the following: Under what circumstances does

the intervening conduct of a third party, the victim, or a natural force make it no longer seem

fair to say that the social harm was caused by the defendants conducts?13

Framing the issue

more precisely: Under what circumstances should D, who act with the requisite mens rea, and

who commits a voluntary act that is cause in fact of the social harm, be relieved of criminal

responsibility because of the existence of an intervening cause? When an intervening cause does

not relieve the defendant of criminal responsibility, the law generally describes that intervening

event as the superseding cause of the social harm.

One early twentieth century scholar observed that all efforts to set down universal test that

explain the law of causation are demonstrably erroneous.14

In particular, there are no hard-and-

fast rules for determining when an intervening cause supersedes the defendants conduct.

However, there are various factors that assist the fact finder in the evaluative process.

Factor 1: De M inimisContribution to the Social harm

Sometimes, a defendants causal responsibility for ensuing harm is insubstantial in comparison

to that of an intervening cause. For example, suppose that D wrongfully wounds V. Although the

wound is not life-threatening, it does require medical attention, so V drives himself to the doctor.

On the way, his car is struck by lightning. V dies instantly. Is D guilty of criminal homicide? Or,

suppose that after D slightly wounds V, X shoots V in the stomach, causing his death an hour

later.

From a causal perspective, D was an actual cause of the ensuing death-by-lightning: but for Ds

wrongful actions, V would not have been in the car, and thus would not have been at the spot

where the lightning struck. In the second scenario, it is possible that the wound D inflicted took afew seconds or a minute off Vs life. Nonetheless, the law is likely to treat Ds causal connection

in ether scenario as de minimis, and relieve him of criminal liability for Vs death.15

This outcome conforms to our common-sense analysis of causal events. If a small pebble is

followed immediately by a giant meteor striking Jupiter, our attention focuses on the meteor;

although the pebble may have contributed slightly to the ensuing damage, we treat the giant force

as the real cause of the harm. The same principle applies in the criminal law: some wrongdoers

have too minor a causal role to justify criminal punishment. The law will treat the substantial,

intervening cause as the proximate cause of the social harm.

13State v Malone

14

15


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Factor 2: Foresee ability of the Intervening Cause

In General

According to some courts, the linchpin16

of proximate causation is whether the intervening

partys acts were reasonably foreseeable, whereas an unforeseeable intervening cause issuperseding in nature. Proper analysis, however, is usually a little more sophisticated than this.

The law tends to distinguish between responsive ( or dependent) and coincidental (or

independent) intervening causes.

Responsive (Dependent) Intervening Causes

A responsive intervening cause is an act that occurs in reaction or response to the defendants

prior wrongful conduct. For example, suppose that D1 operates his boat at an unsafe speed,

causing it to capsize, V1, his drunken passenger, drowns while foolishly attempting to swim to

shore.17

V1s actions constitute a responsive intervening cause to his own death,i.e., his life-

saving efforts were in response to D1s initial improper conduct. Or, suppose that D2 seriously

wounds V2. V2 is taken to a hospital where he receives poor medical treatment by physician X

and dies.18

In D2s prosecution for the death, Xs medical actions were in response to D2s act of

wounding V2.

Generally speaking, a responsive intervening cause does not relieve the initial wrongdoer of

criminal responsibility, unless the response was highly abnormal or bizarre.19

This outcome is

justifiable: since the intervening cause was a response to the defendants initial wrongdoing and,

therefore, the defendant is responsible for the presence of the intervening force, the defendant

should not escape liability unless the intervening force was so out-of-the-ordinary that it is no

longer fair to hold him criminally responsible for the outcome.

Applying this analysis, case law provides that the accused bears criminal responsibility for the

death of a person who seeks to extricate himself or another from dangerous situation created by

the defendant, even if the victim was contributorily negligent in his efforts.20

Similarly, many

cases provide that no one who wrongfully injures another is responsible for the ensuing death,

notwithstanding subsequent negligent medical treatment that contributes to the victims death or

accelerates it.21

On the other hand, grossly negligent or reckless medical care is sufficiently

abnormal to supersede the initial wrongdoers causal responsibility.22

16State v Dunn

17People v Armitage

18Fairman v. State

19Kibbe v. Henderson, State v. Malone

20People v Armitage

21Fairman v. State

22Regina v. Jordan


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Coincidental (Independent) Intervening Causes

A coincidental intervening cause is a force that does not occur in response to the initial

wrongdoers conduct. The only relationship between the defendants conduct and the intervening

cause is that the defendant placed the victim in a situation where the intervening cause could

independently act upon him. For example, suppose that D1 robs V1, a passenger in D1s car, andthen abandons V1 on a rural road. Sometime later, driver X1 strikes and kills V1, who is

standing in the middle of the road. X1s conduct is a coincidental intervening xause: nothing D1

did cause X1 to drive down the road on that particular occasion; D1 simply put V1 on the road

where Xs independent conduct could act upon V1.

Or, suppose that D2 wounds V2. V2 is taken to a hospital for medical treatment, where he is

killed by X2, a knife-wielding maniac who is running through the hospital killing everyone in

sight. Again, X2 is a coincidental intervening cause: he was going to be running through the

hospital killing victims whether or not V2 was there. This is a case in which V2 was in the wrong

place at the wrong time, as the result of Ds original wrongdoing.

The common law rule of thumb is that a coincidental intervening cause relieves the original

wrongdoer of criminal responsibility, unless the intervention was foreseeable. In the present

examples, therefore, it would be necessary to determine whether D1 and D2, as reasonable

people, should have foreseen, respectively, that V 1 would be struck by a car, and that V2 would

be a victim of a criminal intermediary. In the first case, it may have been foreseeable that another

car would drive down the road and strike V1. In the second hypothetical, X2s criminal activities

were probably bizarre enough to relieve D2 of liability for ensuing death, unless it turned out that

all of the events occurred in a high security institution for the criminally insane.

Factor 3: The Defendants Mens Rea(Intended-Consequences Doctrine)

The legal eye reaches further in the examination of intentional crimes than in those in which

this element is wanting.23

As two scholars on causation have explained, a voluntary act intended

to bring about what in fact happens, and in the manner in which it happens,has a special place

in causal inquiries. That special place is this: We usually trace the cause of social harm

backwards through other causes until we reach an intentional wrongdoer. Or: Intended cause

can never be too remote.

For example, in a classical case, D, with the intent to kill V, her child furnished poison to X, a

home nurse, falsely informing X that the substance was medicine, so she did not administer it.

Instead, she placed the substance on a mantel where some time later C, a young child, discovered

it and gave it to V; killing V. D was prosecuted for murder.24

23State v. Cummings

24Regina v. Michael


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This outcome is hardly surprising. D wanted her child poisoned, which is exactly what she got.

As a matter of moral intuitions, the intervening actions- Xs possible negligence and Cs

innocent conduct-should not override Ds intentional wrongdoing. It is as if the jurors were to

say: You got exactly what you wanted. What right do you have to complain if we hold you

responsible for the intended consequence?

Factor 4: Dangerous Forces That Come to Rest (Apparent-Safety Doctrine)

One scholar has observed that when a defendants active force has come to rest in a position of

apparent safety; the court will follow it no longer. For example, consider a somewhat simplified

version of the facts in State v. Preslar: D threatened the life of V, his spouse. As a consequence,

V was forced to leave the house on a freezing night in order to protect herself. V walked to

within 200 yards of her fathers home, where she would have been welcome, but she chose to

spend the night in the extreme cold, rather than bother her father by entering the house. V froze

to death during the night. Clearly, D was an actual cause of Vs death: but for Ds threatening

conduct, V would not have gone out into the cold. But, Vs decision to sleep outside was also abut-for cause for her own death. Is D the proximate cause of Vs death? The court inPreslar

answered this in the negative.

The result may be explained in terms of the apparent-safety doctrine: D id not follow V from

their home, when V reached the vicinity of her fathershouse, and she knew that she could enter

in complete safety, D no longer constituted an immediate threat to Vs safety. Therefore, her

decision to sleep outside constituted a superseding intervening cause.

Factor 5: Voluntary Human Interventions


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Causation

1. Summary of the rules of causation

1. In order to find that Xs act caused (Ys death). Xs act must first be a factualcause and secondly a legal cause of (Ys death)

2. But for test (conditio sine qua non) formula is applied3. In order to eliminate irrelevant factual causes, the criterion of legal causation is

applied.

4. Xs act is the legal cause of Ys death if a court is of the opinion that policyconsideration require that Xs act be the cause of Ys death. This is based on

what is reasonable and fair.

5. Theories used to determine legal causation are:- Proximate cause criterion,- Adequate causation- Novus actus interveniens criterion

2. Formally and materially defined crimes- Materially defined crimes = result crimes- Formally defined crimes = conduct crimes

3. The problem to be solved- In materially defined crimes, court must prove that the act was the cause of the

prohibited situation.

4. Precipitating death- In determining causation in the case of murder or culpable homicide.- To cause death means to cause it at the time in which it actually took place.

5. Factual and legal causationOnly when both factual and legal causation are proven can a court accept the causal link

between conduct and ensuing condition.

causation in criminal law

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