Fundamentals of Criminal Law by Adam J. McKee

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It is a general rule of the criminal law that an individual is not guilty of a crime unless his or her conduct causes the harm that the law seeks to prevent.  The idea of cause in law is complicated because the term is often broken down into two distinct ideas: cause-in-fact and proximate cause.  In other words, the determination of cause in a criminal matter is a bifurcated process.

Factual Causation

In a prosecution for a crime that specifies that a particular harm must occur, it is necessary for the state to prove a link between the criminal result and a particular aspect of the defendant’s conduct, such as his negligence. Let’s use the old English case of R. v Dalloway (1847) as an example.  Dalloway was charged with manslaughter after his cart had struck and killed a young girl who ran out in front of him.  Dalloway had not been holding the horse’s reins at the time. The judge in the case instructed the jury that they could convict Dalloway of manslaughter only if they were satisfied that Dalloway could have avoided the accident had he been holding the reins properly.  Factual causation is sometimes referred to as ‘but for’ (or sine qua non) causation because it can be established only where the alleged result would not have occurred, or would not have occurred at the time or in the way it did, “but for” the defendant’s act.

Factual Causation

Cause-in-fact (also called “but-for” causation) must always be shown. That is, it must be concluded that “but-for” the defendant’s conduct, the prohibited harm would not have occurred.

Legal Causation

Legal causation, which is commonly referred to as proximate cause, is a narrower and more subjective concept than factual causation. In other words, not every cause in fact is a cause in law. To also be a legal cause,  it must be determined to be an “operating and substantial” cause of the consequence being considered in the case. It is important to note that it does not have to be the only such cause, or even the principal (most important or most relevant) cause.

The separation of the legal cause from among all possible factual causes is a tricky business that involves a subjective approach based on common sense.  There is no objective criteria with which to make the distinction.   The distinction, however, must always be based on some aberrant behavior that the law deems culpable.  

Note that the idea of proximate cause is not always found in the criminal statutes, which provides us with an important example of how case law is important to the study and proper application of criminal law  The proximate cause language is not present in the Arkansas Code, for example,  but the idea is maintained in the final clause of §5-2-205. The key idea behind proximate cause is the distance between the act and the harm; if the distance is too great, we will not hold the defendant culpable.

The “but-for” language has been used by the Arkansas courts in several cases. For example, in Anderson v. State, the court stated that “… testimony that death would not have occurred but for the trauma and that the alcohol consumption alone was not the cause of death satisfies the statutory requirement.”  Under the Arkansas Supreme Court’s interpretation of the statute, where conduct hastens or contributes to a person’s death, it is a [legal] cause of the death.

ACA § 5-2-205

Causation may be found where the result would not have occurred but for [emphasis added] the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.


Tackett v. State

In this case a doctor testified that the victim’s comatose condition was caused by the automobile accident which made her more susceptible to infection and that pneumonia was the immediate cause of her death and that the car accident was the proximate cause of her death. Also, there was testimony by other witnesses that the appellant had caused the accident. Under these circumstances, the court held that the evidence was sufficient to prove the cause of the victim’s death was the automobile accident.

Tackett v. State, 298 Ark. 20; 766 S.W.2d 410 (1989).

The relationship between the defendant’s criminal act and the causal chain of events that leads to the prohibited outcome must be considered on a case by case basis.   When the issue arises in murder cases where the injuries are not immediately lethal but the victim later dies, the analysis can be quite complicated. At common law, the courts established a year and a day rule.  

According to this rule, if a victim died of the injuries inflicted by the defendant within one year and one day, then the injuries could be ruled the legal cause of the death.   If more time had passed that the year and a day, then the injuries could not be ruled the legal cause of death. In effect, the rule established a one-year statute of limitations on murder charges.  The reason for this was the elementary state of medical sciences at the time. There was no good way to determine why someone had died, and it didn’t make sense to people in those days that someone could die more than a year later from injuries received during a criminal act.

In modern times, forensic pathology has come very far from the circumstances under which the common law rule was developed.   Medical examiners can determine cause of death with a great deal of certainty, and the common law rule is now pointless and outdated.  Many states have accordingly done away with the common law rules, preferring that criminal law be a matter of statute than a blend of statutes and common law rules.  

Rogers v. Tennessee (2001)

Petitioner Wilbert K. Rogers was convicted in Tennessee state court of second-degree murder. According to the undisputed facts, petitioner stabbed his victim, James Bowdery, with a butcher knife on May 6, 1994. One of the stab wounds penetrated Bowdery’s heart. During surgery to repair the wound to his heart, Bowdery went into cardiac arrest, but was resuscitated and survived the procedure. As a result, however, he had developed a condition known as “cerebral hypoxia,” which results from a loss of oxygen to the brain. Bowdery’s higher brain functions had ceased, and he slipped into and remained in a coma until August 7, 1995, when he died from a kidney infection (a common complication experienced by comatose patients). Approximately 15 months had passed between the stabbing and Bowdery’s death which, according to the undisputed testimony of the county medical examiner, was caused by cerebral hypoxia “secondary to a stab wound to the heart.”

Based on this evidence, the jury found petitioner guilty under Tennessee’s criminal homicide statute. The statute, which makes no mention of the year and a day rule, defines criminal homicide simply as

“the unlawful killing of another person which may be first-degree murder, second-degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide.” Tenn. Code Ann. §39-13-201 (1997).

Petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, arguing that, despite its absence from the statute, the year and a day rule persisted as part of the common law of Tennessee and, as such, precluded his conviction. The Court of Criminal Appeals rejected that argument and affirmed the conviction. The court held that Tennessee’s Criminal Sentencing Reform Act of 1989 which abolished all common law defenses in criminal actions in Tennessee, had abolished the rule.


Modification History

File Created:  07/12/2018

Last Modified:  07/12/2018

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