Chapter 6
Criminal Harm:
Causation and Attempt
Criminal Law
Summer 2011
TA Session Notes
S
Causation
S MPC § 2.03 – Causal relationship between Conduct and
Result
S Conduct = cause of result when:
S A) It is an antecedent but for which the result in question
would not have occurred; and
S B) The relationship between the conduct and result
satisfies any additional causal reqs imposed by the Code
or by the law defining the offense.
Causation
S Actual and Proximate Cause
S Cause-In-Fact (Direct/Actual Cause)
S “But for” test regarding Ds conduct
S Proximate Cause
S Who should be responsible for the harm
Intervening Cause
S Dependent Intervening Cause
S Result occurs in response to Ds earlier conduct
S
Must show that result is related to initial conduct.
S D liable (unless unforeseeable and freakish in its occurrence)
S Independent Intervening Cause
S Result would occur even in absence of Ds conduct
S D not liable (unless foreseeable to a reasonable person in Ds
position)
S Extraordinary, extremely unusual, unforeseeable, superseding,
secondary agency
S
Break chain of causation.
Commonwealth v. Atencio
Causation
S Facts: D was playing Russian roulette with a gun with some
friends which resulted in the death of one of the guys playing.
S Rule: Acting in cooperation with the victim
S While there was no duty to the Ds to prevent the deceased from
playing, there was a duty not to cooperate or join him in the game.
S The concerted action and cooperation of the Ds by reckless
conduct helped to bring about the deceased’s death.
S Using “But For” – “But for” the Ds conduct the result would not
have occurred.
People v. Campbell
Causation
S Facts: Victim was supplied the means necessary for him to be
able to kill himself by the D. The D gave him a gun loaded with
blanks and left. Both the victim and the D had been drinking
heavily.
S Rule: D was proximate cause of the victim’s death but still not
guilty because at this time assisted suicide had no statute against.
S But for?
Commonwealth v. Root
S Facts: Drag race that led to a fatality
S Rule: D not guilty because the victim made his choice and
brought about his own demise. D was not involved in the actual
operation of the victim’s vehicle.
S The action of the deceased driver in recklessly and suicidally
swerving his car caused his own death.
S Victim’s actions brought about his own death. The victim’s risk
taking was separate from others.
S But for?
People v. Kern
S Facts: Group of guys chased victim into traffic causing him
to be hit by a car.
S Rule: Ds were the proximate cause of the victim’s death.
S Intervening circumstances:
S CAR
S Doesn’t break the chain of causation (Direct intervening cause)
S Victim had no other choice but to run out into the street.
S But for?
People v. Stamp
S Facts: Robbery of victim who had heart disease and he died 15-
20 minutes after robbery.
S Rule: Felony-murder rule
S Death as a result of the commission of another crime (strict liability
offense)
S Take your victim as you find him.
S Doctrine is not limited to those deaths which are foreseeable.
S As long as the homicide is the direct causal result of the robbery, the
felony-murder rule applies.
S But for?
Williams v. State
3rd Party Intervention
S Facts: Victim shot during robbery which resulted in his
gallbladder being removed and a trach tube put in which later
was clogged and caused death of victim.
S Rule: D was proximate cause of victim’s death.
S Hospital may have been an intervening circumstance but it was
not a break in the link in the chain.
S Insertion of the tubes into victim’s body was not an intervening
cause b/c it was necessitated by the injury inflicted.
S But for?
People v. Stewart
rd
3 Party Intervention
S Facts: D stabbed victim leaving him with single knife wound.
Surgery led to discovery of a hernia which caused complications
and, a month later, the victim’s death.
S Rule: D is not liable for the death of the victim due to the hernia.
It was an independent intervening circumstance.
S But for?
People v. Kibbe
3rd Party Intervention
S Facts: Individuals left man on the side of the road half naked,
drunk, and without his glasses during a winter storm.
S Rule: Ds were the proximate cause of the victim’s death.
Although, getting hit by a car was how he died and served as an
intervening circumstance, it was dependent on the actions of the
D.
S Not necessary that the ultimate harm be intended by the actor.
Ultimate harm should have been reasonably foreseeable.
Attempt
S Inchoate Crimes – Generally
S Activity that occurs after the formation of the mens rea but
short of the attainment of the criminal goal is described as
“inchoate” (imperfect or incomplete) conduct.
S Most common of these offenses are attempt, solicitation,
and conspiracy.
S Lesser offenses of the substantive crime.
Attempt
S A criminal attempt occurs when a person, with the intent to
commit an offense, performs any act which constitutes a
substantial step toward the commission of that offense.
S D fails to satisfy EACH ELEMENT of the offense.
S Requires more than mere preparation.
S Requires substantial steps to be taken toward the completion of
a crime.
S D must intentionally commit the acts that constitute the actus reus
of an attempt, and he must perform these acts with the specific
intention of committing the target crime.
Attempt
S Remember: Must have INTENT and SUBSTANTIAL STEPS
S E.g. Fred
S Day 1: Pins a newspaper clipping of the new Gotham City Bank on his
fridge with a red circle around it and the date 7/31/11 written.
S Day 2-4: Purchases a gun, borrows a van from his cousin, and goes to the
Halloween store and purchases a Jason mask.
S Day 5: Takes photos of the inside of the bank and adds them to the
newspaper clipping.
S Has Fred committed attempted robbery?
S What if on Day 6 Fred goes to the bank in the borrowed van, pulls up and
hops out with the gun in hand, mask over his face, and runs toward the bank
being stopped by three police just at the entrance?
“Mere” Prep v.s. Punishable
Attempts
S “Last Act” Test: An attempt occurs at least by the time of the
last act but this test does not necessarily require that each and
every act be performed on every occasion.
S “Physical Proximity Test”: The D’s conduct need not reach the
last act but must be “proximate” to the completed crime.
S “Unequivocal Test”: An attempt occurs when a person’s
conduct standing alone, unambiguously manifests his criminal
intent.
Attempt
S Two varieties of criminal attempts:
S “complete” (but “imperfect”) – occurs when the D
performs all of the acts the he sets out to do, but fails to
attain his criminal goal.
S “incompletely” – occurs when the D does some of the
acts necessary to achieve the criminal goal, but he quits
or is prevented from continuing.
People v. Lehnert
Attempt
S Facts: D discovered with explosive parts.
S Rule: D had the mental state and took a number of steps that went
beyond mere preparation. Substantial step test demonstrates that the D
took overt acts.
S Attempt requires conduct constituting a substantial step toward
commission of the crime.
S Actor’s conduct must be strongly corroborative of the firmness of his
criminal purpose.
S Mere prep is insufficient evidence of an attempt.
S Abundance of evidence to strongly corroborate the firmness of Ds
purpose to commit murder
People v. Hawkins
Attempt
S Facts: Man gets into the bed with victim. “Let’s kick it.”
S Rule: He demonstrated expressed intentions since he took off his
shoes and got into her bed. There were substantial acts for
attempt.
S Attempt crime is one that falls short of completion through
means other than the D’s voluntary relenting.
Renunciation
(Abandonment)
S MPC – a person is not guilty of an attempt if: (1) he abandons
his efforts AND (2) his conduct manifests a complete and
voluntary renunciation.
S Renunciation = affirmative defense.
S Must completely and voluntarily abandon effort to commit
the crime or otherwise prevent the commission
Renunciation
(Abandonment)
S IMPORTANT
S Renunciation is NOT VOLUNTARY if it is motivated by
circumstances not present or apparent of the inception of the
actor’s course of conduct.
S Renunciation is NOT COMPLETE if it is motivated by a
decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another
similar objective or victim.
People v. Staples
Unequivocal Test
S Facts: Guy who rented apartment above bank started to drill into the ceiling
of the bank. D’s equipment was discovered by landlord and turned in to the
police.
S Rule: Not abandonment/renunciation because he did not voluntarily
abandon the act; he was motivated by other acts independent of himself.
S Attempt committed when it is established D intended to commit a specific
crime and in carrying out his intention he committed an act that caused
harm or sufficient danger of harm.
S D motivated by other acts independent of himself.
S Relevant factor to show voluntary abandonment – whether acts of the D
reached a stage of advancement that they can be classified as an attempt.
Le Barron v. State
Unequivocal Test
S Facts: Victim pleaded with D not to rape her because of her
pregnancy.
S Unequivocal act accompanied by intent is sufficient to constitute
a criminal attempt
S D had taken substantial steps in attempted rape.
S Learning of the pregnancy constituted intervention of an
“extraneous factor” within the meaning of the attempted rape
statute.
S D had done everything necessary to insure commission of the
crime intended and can not escape punishment.
Impossibility
S Legal Impossibility: Even if the D did everything he intended to
do, it would be impossible for him to commit the crime.
S Traditional view: Defense to criminal liability
S Factual Impossibility: It is impossible for the D to commit the
crime because of a fact or facts unknown to her.
S No defense to criminal liability.
S MPC does not recognize defense of impossibility.
People v. Dlugash
S Facts: Two men shot victim. First man shoots him a few times
and second man shoots the victim shortly after the first. Which
shot actually caused the man’s death was inconclusive.
S Rule: Not a legal impossibility because the D had the intent to
shoot and kill so he is criminally liable.
S If the D believed the victim to be alive at the time of the
shooting, it is no defense to attempted murder that the victim
may have been dead.
Smallwood v. State
S Facts: HIV case where D was sexually assaulting women and
penetrating them. Court charged him for attempted murder.
S Rule: Ds intent was not to kill, just to rape, so it was not
attempted murder.
S Insufficient evidence to infer intent to kill.