Notes and Questions--Causation

1. There are two main types of causation. "But for" causation, which is easy to prove, and "proximate" causation, which is more relevant for our purposes. Your being born is a prerequisite for your reading this casebook, as was everything that happened before that: your parents meeting, the evolution of Homo sapiens in Africa, the formation of the earth, and the Big Bang. All of those are but for causes.

Proximate causation are those causes that are close enough (proximate enough) in space and time that we feel OK about assigning legal blame. Note that we have used wiggle words here: "we," "OK," and "assigning legal blame." This should clue you in that proximate causation is, itself, a matter of judgment and argumentation. Proximate causation is, ultimately, about fairness: is this close enough that we should blame someone for causing the harm? If something happened a long time ago in a galaxy far, far away, it's not a proximate cause. As the cause gets nearer in place and time, the likelihood of it being deemed a proximate cause--hence one to which a fact-finder might assign legal liability--gets greater.

2. We suggest that you think in terms not of "causation" but in terms of "non-causation." That is, would you, as a defense attorney, be able to pass the blame/pass the buck to someone or something else? If someone feeds V poison, but someone else comes up and strangles V before V has digested the poison, V dies of strangulation. It doesn't matter that V would have died of poison--V, in fact, died due to a loss of oxygen from being strangled.

This doesn't mean the poisoner is off the hook! The criminal law deals with this kind of antisocial behavior via attempt liability, which we will deal with. So try to isolate the particular issues and take tiny analytical steps. The issues in this section are about whether the D is or isn't the cause of the criminally cognizable harm. The issues in this section are not about whether the D could be charged with a different crime, or whether they were model citizens. The same is true for issues of mens rea: causation doesn't mean whether the D intended the outcome (or was purposeful about it). A D can be an accidental cause; whether the D is punished will, of course, depend on whether the D's actions met the mens rea requirement of the relevant statute.

3. Acceleration. Sometimes courts will separate out issues of "acceleration." We think that all cases of, say, death are acceleration cases, since (spoiler alert!) everyone dies. The issue is not whether someone is going to die--the issue is when. So if someone has a terminal illness and only has months to live, it is not open season on them. A D cannot say "they were going to die anyway, so I am not the cause of death." Look at whether the D's actions sped up the inevitable.

4. The MPC approach. MPC 2.03(1) combines but for causation and "other" considerations.

Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.

Think of subsection (a) as weeding out clearly irrelevant concerns. This means that sports fans' beliefs that, say, "the Giants started playing better when you went to the bedroom" is not, actually, a cause. Section (b) is, essentially, about issues of proximate causation and breaking the chain of causation.

5. Breaking the chain of causation. Once the first domino of but for causation has been tipped, and it is proximate enough to put us in the ballpark of criminal liability, look for breaks in the chain of causation. That can be something like the "buck passing" test in note 2, but, specifically, look for unusual, superseding causes.

6. Hypo: D assaults V, who suffers a life-threatening injury. The ambulance taking V to the hospital gets stuck in traffic, which is common for the time of day and location, and V dies before reaching the hospital. A car traveling at the speed limit can make the journey (with no traffic) in 20 minutes; V's trip took 40 minutes. The coroner later determines that if V had arrived ten minutes earlier, V would not have died. 

Is D the but for cause of V's death? 
Is D the (proximate, legal) cause of V's death (ask yourself: has the chain been broken, per the guidance in notes 2, 3, and 5)?

7. Hypo: D assaults V, who just has some bumps and bruises. D does _not_ inflict any life-threatening injuries. The ambulance takes V to the hospital. As the ambulance is on the offramp leading to the hospital, there is an earthquake, the offramp collapses, and everyone in the ambulance dies.

Is D the but for cause of V's death? 
Is D the (proximate, legal) cause of V's death (ask yourself: has the chain been broken, per the guidance in notes 2, 3, and 5)?

(Note: irrespective of your analysis, D would still be chargeable with assault.)