Criminal Law Class Notes 9/22/03


Actus Reus = Voluntary Act + Social Harm


The elements of a crime include:


1.     Voluntary Act

2.     Social Harm

3.     Mens Rea

4.     Actual Causation

5.     Proximate Causation


Causation Velazquez v. State


Sometimes courts will call actual causation “causation-in-fact” and will call proximate causation “legal causation”.


What’s the distinction between actual causation and proximate causation?


We’re trying to make a sort of “scientific judgment” about who caused what, and we’re trying to do it in a “policy neutral” way.


Note that the discussion of proximate causation in tort law will be quite different than the same discussion in criminal law.


In criminal law, we ask: “Did this person die [for example] as a result of lung cancer?”  We do not ask: “Do we like smoking?  Do we like the tobacco companies?”


Actual causation is different.  There may be genetic predispositions to cancer.  There is the choice of the smoker to smoke.  There will be many actual causes of everything in life.


Therefore, when we get to proximate or legal causation, we shift from a policy-neutral notion causation to one that’s intimately tied up with ideas of fairness and justice.  Do we find this defendant to have caused the harm, even if there were other factors that contributed for the harm?


With actual causation, we create a “line-up” of all the possible people who could have caused the harm.  With proximate causation, we pick and choose on grounds of justice which possibly blameworthy person we will hold accountable.


If something is a proximate cause, then it is an actual cause.  Therefore, you must discuss actual cause first and then discuss proximate cause.


Actual Cause


Here’s the definition: “But for the voluntary act or omission of the defendant, would the social harm of the offense have occurred when it did?”  Note that if we’re asking this question and we’ve gone through the elements of the crime in the right order, we’ve already asked and answered what the voluntary act and social harm are.


If the answer to this question is “yes”, that means the defendant is not the actual cause of the harm.


If the answer to this question is “no”, that means the defendant is actually the actual cause of the harm.


Note 3, p. 200


We will use the common law and Model Penal Code test for each of these examples.


We assume that D and X did not act in concert.  The importance of this is that if we conclude that they are working together (or in other words that they are co-conspirators) then there is no problem and we find that both D and X caused the harm.


So we’ll say that D and X are totally independent of each other for the sake of argument.  We must think of each of them as a potentially separate party.


A.   X is an actual cause because but for X stabbing the victim in the chest, the social harm of the victim’s death would have occurred sometime in the future.  D is an actual cause because but for D’s act, V would have lived five extra minutes.  We would characterized D’s behavior as having accelerated the death.  It’s true that if D had acted alone, V would not have died when he did (in 10 minutes instead of 15).  Analytically, if you speed up the inevitable, you are an actual cause of that person’s death.

B.    Let’s say that D unintentionally shot V.  D is still an actual cause of V’s death because the intent issue makes no difference as to causation.

C.   Only X is an actual cause now because D had no impact on the process and did not accelerate V’s death at all.  However, that doesn’t mean that D won’t be found guilty of a crime.  D can still be tried for attempted murder.  That’s what he was trying to do, though he failed.

D.   If both X and D stab V simultaneously, and if neither wound by itself would kill V, then both X and D are actual causes of V’s death.  It took both people to kill V, so the answer to the “but for” test is “no” in both cases.

E.    If V would die instantly from the wounds from X or would die from the wounds from D, the “but for” test doesn’t work as we originally define it.  “But for D’s shooting V in the head, V still would have died.  But for X’s shooting V in the heart, V still would have died.”  That seems to suggest that neither person was the actual cause of the harm.  In this case, we must add the phrase “as it did”.  The common law solution to this problem was to get rid of the “but for” test and instead use a “substantial factor” test.  In other words, was D a substantial factor in causing the death of V?  Yes.  Was X a substantial factor in causing the death of V?  Also yes.  But Dressler says this is nonsense; he thinks it’s just playing with words.  How can you really cause something a substantial factor in causing a result when it had no effect on the result?  The Model Penal Code doesn’t use the substantial factor test.  It used a version of the “but for” test that considers the complete circumstances of the harm that occurred.


There are very few cases in the real world like the last hypothetical.  In real life, D and X are probably working in concert.  This comes up more in tort law.  It comes up when there are two fires that come from different locations and move towards a victim’s house and cause it to burn down.  Each defendant wants to say that they’re not the cause of the fire because the house would have burned down either way.

Proximate cause


This is entirely an issue of what the jury concludes seem just and fair.  There is no categorical rule that answers these questions.  Now we’re in the area of deciding what is just and fair.


Whenever you think about a proximate cause question, think about a line going from the act of the defendant and the social harm.  Then you look to see if there were any other “but for” causes that occurred between the time of the voluntary act and the time of the social harm.


If there is nothing that comes between the act and the harm, then it is a case of “direct harm”.  That’s an easy case; the defendant is in the actual cause “lineup” by himself.


Often, however, there will be some “intervening cause” that comes between the act and the harm.  Now we have a serious proximate causation issue because we must decide who we want to hold responsible.


Kibbe v. Henderson


This case has some rules and doctrines, but there are no categorical rules to determine proximate cause.


What are the facts of this case?  Kibbe and his friend robbed Stafford and then left him on the road, where he was hit by a pickup truck and he died.


What is the defendant’s act?  It’s pushing the victim out onto the side of the road.  What happens between this and the death of the victim?  Are there any intervening causes that we can point to?  Yes.


Blake hit Stafford.  Why?  The victim was abandoned on the side of the road.  How did the victim end up in the middle of the road?  He must have moved there himself.  He was really drunk.  He is an actual cause of his own death.  If he hadn’t moved to the middle of the road, he wouldn’t have gotten hit.


Why did Blake hit Stafford?  There was another person who flashed his lights at Blake.  Maybe if the other person had acted differently, Stafford wouldn’t have died.


The point is that we have a number of intervening causes.  We are forced to decide whether or not we should hold the defendant accountable for the death, even though he didn’t want to kill the victim.  If we don’t blame the defendant for the death of the victim, who do we blame?


Will we find that, as a matter of justice, the defendants will not be found to be the proximate cause of the victim’s death?


How was the jury instructed?  They were instructed on everything but causation.  The conviction was overturned for this reason.


But how should the jury have been instructed?  What should the jury have been told so they could better decide whether the defendant was the proximate cause of the victim’s death?


The real issue is a policy issue.  Is it just to hold someone responsible for a harm given the way in which it happened?  In other words, the Model Penal Code is getting away from all the complicated tests from common law and is suggesting that we give the jury the basic question of whether the result is just.


That’s not to say that the common law rules and doctrines are no longer relevant.  As an attorney, you will want to use them for the purposes of arguing justice to the jury.


There is no black letter rule for judging proximate cause.


However, there are a number of tests and standards for proximate cause:


Coincidental and responsible intervening causes


An intervening act is a coincidence when the defendant’s act just put the victim in the wrong place at the wrong time, in which case the defendant is not the proximate cause unless the result was foreseeable.


On the other hand, an intervening act is a response when the act is a reaction to the conditions made by the defendant for the victim, in which case the defendant is the proximate cause unless the intervening cause is unforeseeable and very highly unlikely, bizarre, and abnormal.


The intended consequences doctrine


How would we analyze the Michael case?  Is N’s leaving the poison on the table a coincidental or responsive intervening cause?  Is Y’s administering the poison to the child a coincidental or responsive cause?


Based on the intended consequences doctrine, we reach back to the person who intended to cause the harm to find the proximate cause of the harm.  In other words, the mother got what she wanted, though not the way she wanted.  We will probably hold her to be the proximate cause of the death.  However, we must say “probably” because this is just one way to look at proximate causation.


In Preslar, do we hold the husband accountable for the death of his wife?  The intervening cause is the victim’s own decision to sleep at the door and not knock and go inside.  She is an actual cause of her own death.  Whom do we hold responsible?  The “apparent safety” doctrine says that once the danger from the defendant is no longer present, we no longer consider that defendant a proximate cause.  The question is: did the victim reach “apparent safety”?  Since she could have easily gotten into the house, we would assign proximate cause for her death to her based on this doctrine.


There are a number of other tests in the book.  To get familiar with these tests, Dressler recommends trying problem 11G on page 208.  How would the situation be handled under each of the rules of proximate causation?


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