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 the mechanism 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.

1 2

Hall at 248

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

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 know about 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.5 In 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 not have 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 to exclude certain forces, including human ones, from responsibility for ensuing harm. That is, subject to one possible and very limited exception, D cannot be held criminally responsible for
3 4 5

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

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 the proximate cause of the social harm. Causes versus Conditions D pulls 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 the sine qua non test of 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 causation and mens rea are independent concepts, both of which must be proven in a criminal prosecution.7Frequently, however these doctrines are confused.

6 7

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

State vs Boles

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 at that 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 eliminate candidates 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 Rea Without 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.

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 the sine qua non question: 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 death process, 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 could not 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.

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 not only that the critical term is never defined, but that it is difficult to comprehend how a persons conduct can never be a substantial factor in causing 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.9In essence, this technique 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 woundscould 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.

8 9

Abdersob v Mineapolis, St.P Perkins vs Boyce

Proximate Cause Mankind might still be in Eden, but for Adams biting an apple.10The 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,11the proximate or legal of the social harm must be 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 or accelerated 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).

10 11

Welch v State State vs Gaven 12 State vs Marti

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-andfast 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 Minimis Contribution 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 a few 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.

13 14 15

State v Malone

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 is superseding 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 lifesaving 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.18In 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.19This 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

16 17

State v Dunn People v Armitage 18 Fairman v. State 19 Kibbe v. Henderson, State v. Malone 20 People v Armitage 21 Fairman v. State 22 Regina v. Jordan

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, and then 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.23As 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

23 24

State v. Cummings Regina v. Michael

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 a but-for cause for her own death. Is D the proximate cause of Vs death? The court in Preslar 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 fathers house, 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

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 factual cause and secondly a legal cause of (Ys death) 2. But for test (conditio sine qua non) formula is applied 3. 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 policy consideration 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 causation Only when both factual and legal causation are proven can a court accept the causal link between conduct and ensuing condition.