Concept

Causation Requirements

Misdemeanor manslaughter

Causation Requirements

The limits covered so far all concern which misdemeanors may carry a homicide charge, and the last of them, the foreseeability limit, already blurred into causation, since foreseeability of death and proximate cause turned out to describe one inquiry. Causation has its own role in the doctrine, though, and it applies even when the predicate passes every gate. The unlawful-act rule changes what the prosecution must prove about fault, because the intentional commission of the misdemeanor stands in for the criminal negligence that ordinary involuntary manslaughter requires. The rule leaves causation where it was. At common law the death had to be proximately caused during the commission of the misdemeanor or other unlawful act, and only then did the killing count as involuntary manslaughter.¹

The reason courts hold the line on causation follows from what the doctrine has already given up. In an ordinary manslaughter case, criminal negligence ties the defendant's blameworthiness to the death itself, because the defendant ran a risk of death that a reasonable person would not have run. Under the unlawful-act rule, the blameworthiness attaches to the misdemeanor, which may be a minor lapse, and no separate showing of fault about death is required. If causation were loosened as well, nothing would remain to connect the defendant to the victim except coincidence in time and place, and any death that happened near a violation could produce a homicide conviction. Causation is therefore the only link left between the wrongful act and the result, and courts require that the unlawful act, rather than some unrelated event, be what produced the death.

Causation in this setting raises two separate questions, and the sub-sections that follow take them in turn. The first concerns how strong a link the law demands between the violation and the death. Cause-in-fact is always required, proximate cause is usually required as well, and courts often treat the two differently depending on whether the predicate is malum in se, meaning inherently wrong. The second concerns how long the offense is treated as continuing, which matters when the death comes after the technical commission of the misdemeanor is over, as it often does when a defendant is fleeing. General causation theory, including the doctrine of intervening causes, is covered in the causation reading and is used here only as it fits this rule.

Link Between Violation and Death

The unlawful-act doctrine relaxes the fault requirement, yet the death must still be tied to the defendant's wrongdoing, and the first tie is cause-in-fact: the death would not have happened without the unlawful act. Committing some misdemeanor and happening to cause a death is insufficient, because the causal link must run to the conduct that constitutes the misdemeanor itself.³ Suppose a defendant argues heatedly with another person and then commits a battery, and the other person dies of a cerebral hemorrhage that the medical evidence cannot trace to the battery rather than to the excitement of the argument. The prosecution cannot show that the unlawful act caused the death, so a manslaughter conviction cannot stand.⁴ Cause-in-fact is demanded for every predicate. Whether the prosecution must prove more depends on the kind of misdemeanor carrying the charge, and that difference organizes the rest of this section.

For a malum in se predicate, meaning a misdemeanor that is inherently wrong by common moral standards, the usual rule asks for little beyond cause-in-fact. A defendant who unintentionally causes a death while committing such an offense is guilty of involuntary manslaughter without regard to whether the death was foreseeable, and without regard to whether the death came from the part of the conduct that makes it unlawful.⁵ Simple assault is the standard illustration. Courts have sustained manslaughter convictions where an assault produced an unanticipated death, as in State v. Frazier, a 1936 Missouri decision.⁶ The theory resembles the tort principle that a wrongdoer takes the victim as found, so that a person who intentionally injures another assumes the risk of an unusually severe result.⁷ These jurisdictions also decline to apply a merger-type limit that would keep a simple assault resulting in death from serving as its own predicate.⁸

The mechanism behind the loose standard is that in a battery the wrongful part of the conduct and the dangerous part are the same thing. The striking that makes the act a crime is also the striking that produced the injury, so the link between the violation and the death is built into the offense. A defendant who chose to hurt another person has little ground to complain that the person turned out to be more fragile than expected.

Hypothetical Illustration

Tom punches Jerry, a misdemeanor battery. Jerry is a hemophiliac and bleeds to death. Jerry's unusual frailty is not so extraordinary as to supersede the punch, so the battery is the proximate cause, and Tom is guilty of involuntary manslaughter in a jurisdiction that keeps the rule. Hold the victim's condition constant and change the predicate: a street vendor operating without the required permit, a regulatory misdemeanor, is working carefully when a passerby, Jerry again, brushes the cart, scrapes an arm, and bleeds to death. The scrape would have happened in exactly the same way had the vendor held a permit, so the missing permit is not even a cause-in-fact of the death. The frailty is identical in both versions. What moved the answer is whether the unlawful part of the conduct did any work in producing the injury.

A regulatory predicate, meaning a malum prohibitum offense that is wrong only because a legislature forbids it, gets the stricter treatment. The unlawful feature of such an offense is often a status or an omission, such as an expired license, which sits beside the dangerous conduct rather than making it up. Insisting on a close causal link keeps a homicide conviction from resting on a violation that did nothing to bring about the death. In Commonwealth v. Williams the defendant was convicted of manslaughter by vehicle on the basis of an unrenewed driver's license, and the court reversed because the expiration had no causal connection to the accident, which resulted from the carelessness of another driver.⁹ The driver there was unlawfully on the road, but the lapse of the license explained nothing about why anyone died.

Courts frame the stricter requirement in two main ways. Under the first, the defendant is not guilty unless the death was the foreseeable or natural consequence of the unlawful conduct, judged by what a reasonable person would have foreseen rather than by what the defendant foresaw.¹⁰ This is the foreseeability limit from the previous section seen from the causal side, which is why the same decisions can be described as foreseeability cases or as proximate-cause cases.¹¹ Under the second, the defendant is not guilty unless the death was actually caused by the unlawful excess, the portion of the conduct that makes the whole unlawful. A driver doing 35 in a 25 zone acts lawfully for the first 25 and unlawfully only for the extra 10. In drunk driving, the driving is lawful and the intoxication is the excess. In hunting without a license, the hunting is lawful and the missing license is the excess.¹² Either framing reaches the same result in Williams, because neither the expired license nor the foreseeable course of events accounts for the death.

The two framings also sort easy cases from hard ones. Where the violated rule is connected to how the collision happened, as with dead taillights, the rule can convict a driver who was not even negligent in missing the defect. Where a missing license is unconnected to the injury, as with a careful hunter, even a rigid application of the rule should not convict.¹³

The looser treatment of inherently wrongful acts is the usual rule, but it is far from universal. Jurisdictions differ widely on causation in unlawful-act manslaughter, ranging from no causal relationship at all to a requirement that the death be a natural and probable consequence of the offense, and the strict end of that range turns the doctrine into something close to negligence manslaughter.¹⁴ A Florida court applying that stricter view reversed a conviction even though the predicate, theft of $110 from a church collection plate, was malum in se, because the death of a congregant who chased the thieves by car, suffered cardiac dysrhythmia, and hit a tree was not a foreseeable risk of the theft.¹⁵ Delaware goes further and requires proximate cause in every unlawful-act case, without regard to the malum in se and malum prohibitum distinction.¹⁶ The usual mistake on an exam is applying the foreseeability requirement to every predicate, because for an inherently wrongful act the usual rule dispenses with it.¹⁷ Chases that follow an offense, as in the church theft, raise a separate question of timing that the next section takes up.

The general rules of intervening causation still operate at the edges. Legal cause is absent where a coincidence that is not reasonably foreseeable intervenes, or where the victim's response is abnormal.¹⁸ A victim's fragility is a condition that exists before the defendant acts, while a coincidence is an event that happens afterward, which is why the hemophiliac case and the intervening-driver case come out differently.

Exam Analysis Steps

Because the required strength of the link depends on the kind of predicate, the causation question is best run in a fixed order. The steps are these:

Ask whether the death would have occurred without the unlawful act, and whether the medical or factual evidence ties the death to the conduct that makes up the misdemeanor rather than to some other event.
Classify the predicate as inherently wrongful, such as battery, or regulatory, such as a licensing or equipment violation.
For an inherently wrongful predicate, apply the usual rule that cause-in-fact suffices even if the death was unforeseeable, while checking whether the jurisdiction demands proximate cause in every case.
For a regulatory predicate, ask whether the death was a foreseeable or natural consequence of the violation, or whether the unlawful excess of the conduct produced it, using whichever formulation the jurisdiction follows.
Check for an intervening coincidence or abnormal response that would break the chain, and if the link fails at any step, turn to ordinary involuntary manslaughter and ask whether the facts show criminal negligence.

Step four is where most of the work happens on regulatory offenses, since the question is whether the part of the conduct that was unlawful contributed to the death. Step five keeps the prosecution's other route open, because failing the unlawful-act causal link removes only the shortcut.

Timing and Flight

The causal link discussed above has a time dimension as well. At common law the killing had to occur in the commission of the misdemeanor or other unlawful act, so the prosecution must show not only that the violation caused the death but also that the death fell within the period the offense occupies.²⁰ Courts describe that period as the res gestae of the unlawful act, meaning the continuous course of events that makes up the wrongful conduct, and People v. Mulcahy, a 1925 Illinois decision, states that the death must occur within it.²¹ The requirement follows from what the doctrine puts in the place of fault. The intentional misdemeanor stands in for the criminal negligence that ordinary manslaughter demands, and that substitution is defensible only while the risk the misdemeanor created is still operating. Once the risk has run its course, a later death is tied to the offense only by coincidence.

An illustration drawn from speeding shows how the requirement works in practice. A driver commits the misdemeanor of speeding, slows to a lawful speed, and a few minutes later, driving properly, hits and kills a pedestrian. It may be true that, without the speeding, the driver would not have been at that spot at that moment, so that but-for cause-in-fact is present. Even so, because the accident happened some distance from where the violation occurred and some time afterward, it may fall outside the "in the commission" requirement.²² Timing is therefore a separate filter from cause-in-fact, since a death can satisfy the but-for test and still arrive too late to count.

Flight after the offense complicates the picture, because many misdemeanors are technically complete in an instant. Larceny is finished once the property is taken, and a thief who has grabbed the money has already satisfied every element. If the commission of the offense ended at that moment, almost no death during an escape could ever be charged under the doctrine. Most jurisdictions therefore treat flight after the offense, especially flight under immediate pursuit, as part of the offense itself. The reasoning is that the danger a misdemeanor creates does not disappear when its elements are complete: running from the scene and being chased are the natural continuation of the wrongful conduct and carry the same risk. Counting them as part of the offense keeps the death tied to the misdemeanor that set the events in motion.

The two intervening acts in that scene need only a brief word. A victim's response breaks the chain when it is abnormal, and chasing a thief who has just taken money is the reaction a theft invites. The driver's act is likewise the kind of hazard that arises when someone runs across a highway with a pursuer behind. The chase after the church-collection theft in the previous section is a case of this kind. Its causal treatment was covered there, and what matters here is that pursuit after the taking is the usual way a death arrives after the technical offense is over.

Flight extends the offense, but only for as long as the flight and pursuit last. Once the offender reaches a place of safety, the connection ends, because a later event no longer flows from the offense. Felony-murder law draws a comparable line, treating the felony as over when the offender reaches temporary safety, and the unlawful-act doctrine follows the same logic here.

The gas-station pair and the speeding illustration turn on the same question: whether the danger the offense created was still in motion when the death occurred. In the escape across the highway the danger was still operating, because the thief was running and the operator was chasing. In the speeding illustration the violation had ended, and the driver was behaving lawfully when the pedestrian was struck. The usual error is stopping the clock when the last element of the misdemeanor is satisfied, because flight and immediate pursuit extend the commission in most jurisdictions. The opposite error is treating flight as endless, when it ends once the offender reaches safety.