Causation and the Killing

Causation and the Killing

The presumption in § 210.2(1)(b) speaks to what the actor was thinking and says nothing about what the actor did. Criminal homicide under § 210.1 requires that a person purposely, knowingly, recklessly, or negligently causes the death of another human being, and murder is the form of criminal homicide that carries the heightened mental states of § 210.2.¹ The felony presumption supplies recklessness and extreme indifference, which leaves the prosecution to prove, as in any homicide case, that the actor's conduct caused the death.² The two requirements stay separate because they answer different questions: a mental state describes the actor's attitude toward a risk, while causation ties the actor's conduct to this particular death. Without the second requirement, a robber who was reckless and indifferent during a holdup could be convicted for a death the holdup did not bring about, which would revive the status-based liability the Code abandoned when it required a purposeful, knowing, or reckless killing for murder.³ The next three parts take the causal test, the attribution of deaths inflicted by third parties, and the small role of the victim's own carelessness.

The Code's Causal Test

The Code's causal inquiry has two parts. The first is but-for cause: the death would not have occurred without the actor's conduct. The second asks whether the way the death came about is "too remote or accidental" in its occurrence to have a "just bearing" on the actor's responsibility, a formulation that comes from the Code's general causation provision, § 2.03.⁴ But-for cause is only a floor, since nearly every event in a chain leading to a death passes that test, including events no one would blame the actor for. The second question filters those out by asking whether it is just to hold this actor responsible for this death. The Code frames the filter as an open question for the fact finder for a practical reason. A rule that treated every death near a felony as the felon's would reach deaths unconnected to the dangerous conduct, and a rigid rule in the other direction would excuse an actor for any unusual causal path, so a flexible standard lets liability track the actor's real contribution. In close cases the answer is a value judgment that belongs to the jury.⁵

The minimum connection is easy to see on a bank robbery. A customer standing in the lobby, unaware of the holdup, suffers a fatal heart attack from natural causes. The death occurred at the same time and place as the robbery, yet coincidence is not causation, and the robber has caused no homicide for the presumption to attach to. A customer with a weak heart who dies of a seizure brought on by fright at witnessing the robbery presents the opposite situation, because the robbery produced the fatal event.⁶ At the other end of the range, ordinary downstream events usually leave the connection intact. In Commonwealth v. Stafford, a felony-murder case, a defendant who struck the victim with a crowbar was held responsible for a death that followed days later, after the victim was found unconscious by a bed, and it made no difference whether a fall from the bed was the immediate cause, because the blows had produced the deteriorated condition that led to the collapse.⁷ The general treatment of causation develops cause in fact and proximate cause in detail; this chapter takes only the points that matter when the death occurs during a felony.

Deaths Inflicted by Third Parties

The actor need not fire the fatal shot. A death inflicted by a third party can still be attributed to an actor whose conduct created the danger that produced it. A felon who holds a hostage in front of his body as a shield while threatening the hostage with death is a but-for cause of the hostage's death by police gunfire, since without the shield the hostage would not have been in the line of fire. The felon also placed the hostage in harm's way, and it was foreseeable that police would try a rescue with deadly force, so the hostage's death was the natural and probable consequence of the chain of events the felon started.⁸

Causation is only half of that prosecution. The prosecutor must also show the mental state toward the result, namely that the felon acted recklessly under circumstances manifesting extreme indifference to the value of human life. The presumption supplies that showing when the hostage-taking occurs during a listed felony such as robbery or kidnapping, and otherwise the prosecutor must prove it directly. The prosecutor also proves the but-for link and that, because police often use deadly force to rescue hostages, the result was contemplated by the actor.⁹

The two scenarios differ in one respect that moves the answer. Police gunfire at a hostage-taker is a natural response to the danger the actor created, so the third party's act extends the actor's causal chain. A stranger's collision hours after the danger has ended belongs to a separate causal chain, and the second prong of the test is the tool that sorts them.

This attribution differs from an agency approach some jurisdictions apply to the traditional doctrine. In Commonwealth v. Redline, Pennsylvania reversed a first-degree murder conviction where a police officer justifiably killed the defendant's cohort during an escape from a robbery, reasoning that the felony-murder rule imposes liability for the felon's own act or a cohort's, and not for the act of a third party who is resisting the felony.¹⁰ Other states continue to accept proximate cause based on foreseeability alone, as the Illinois Supreme Court did in People v. Dekens.¹¹ The Code's inquiry differs from both. Who fired the fatal shot matters less than whether the actor's conduct caused the death and whether the actor had the mental state murder requires.¹² The next section sets the Code beside the common-law rule in more detail.

Victim Negligence

A victim's own carelessness gains little traction under the Code. The actor who creates a deadly danger has no defense in the fact that the endangered person failed to respond to it perfectly, and the victim's negligence says nothing about the actor's mental state or about whether the death would have occurred without the actor's conduct. Both elements remain intact. The defendant's opening is therefore an argument that the defendant did not cause the death, and the victim's carelessness is useful only as a fact bearing on that argument.¹³ The common error is to treat the victim's carelessness as a defense in its own right.

A responder's death shows how the argument works. A defendant's conduct brings a public servant to the scene, and the public servant dies in the course of his duties after acting in a very unprofessional and reckless manner. A jury that focuses on that conduct might find no causation. A jury angered by the death of a public servant might instead hold the defendant responsible and convict of some form of homicide. The Code supplies no formula for choosing between them, because the question is the "too remote or accidental" judgment again, and a jury could go either way.¹⁴