Criminal
Law Class Notes
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.
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
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
Why
did Blake hit
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?