Analyzing a Late Death

Analyzing a Late Death

A victim who dies long after the injury raises two separate questions, and the analysis works best when each gets its own turn. The first is a threshold question about time. At common law a defendant could face homicide liability only if the victim died within one year and one day of the injury or wound, and a death after that period barred the homicide charge even when the defendant's conduct clearly satisfied but-for causation.¹ The second is the ordinary causation inquiry that every homicide prosecution requires. The earlier sections of this chapter taught the rule, the way the period is counted, the reasons behind it, and the movement toward abolition; this section arranges those pieces into a method for a fact pattern on an exam.

The order of the method follows from what each question can accomplish. The time limit is a fixed rule that can end the homicide inquiry on the dates alone, without any medical testimony and without any dispute about intervening events, so it is checked first. A death inside the period, by contrast, decides nothing about causation, because the injury must still be shown to have produced the death and later events may still break that chain. Keeping the two questions apart prevents two opposite mistakes: treating the time limit as proof that the defendant caused the death, and treating clear but-for causation as a reason to ignore the bar.

The first step is where answers on an exam diverge most, because the rule's status depends on the jurisdiction. The common-law rule bars homicide for a death outside the period, yet the Tennessee Supreme Court noted in Rogers v. Tennessee that most jurisdictions to consider the question recently had abolished the rule by statute or decision.³ Sources differ on how widely the rule survives, so a sound answer to a stem that does not identify the governing law states that the common-law rule bars homicide for a death outside the period, and then adds that where the rule has been abolished the bar does not apply and the analysis goes straight to causation. When the stem does identify the law, the timing of abolition matters too. Tennessee's court abolished the rule in Rogers's own case and applied that decision to a stabbing that had already occurred, which was permitted because the change was not unexpected and indefensible by reference to the law expressed before the conduct.⁴

A jurisdiction that keeps the rule produces the opposite result at step one. In Ex parte Key, Brian Rollo was struck by a car on March 28, 1997, and died on October 2, 1998, about eighteen months later, and the State asked the trial court to abrogate the common-law rule so that murder charges against Key could go forward.⁵ The Alabama Supreme Court pointed to a statute that makes the common law of England the rule of decision unless the Legislature alters or repeals it, and it held that the Legislature had not expressly abolished the year-and-a-day rule when it reenacted the Criminal Code, so the rule remained part of Alabama common law.⁶ An interval of eighteen months exceeds the period, and the court reversed Key's manslaughter conviction while remanding his separate conviction for leaving the scene of an accident with instructions.⁷ The comparison with Rogers shows that an interval of more than a year can end a homicide charge in one jurisdiction and have no effect in another, depending entirely on the first step.

The Rogers facts also show steps two and three at work. Wilbert Rogers stabbed James Bowdery on May 6, 1994, and Bowdery died on August 7, 1995, after a coma that followed a loss of oxygen to his brain during heart surgery, so about fifteen months separated the wound from the death.⁸ That interval exceeds a year and a day, which means that in a common-law jurisdiction step three would have ended the homicide inquiry. Because Tennessee's court abolished the rule, the interval did not bar the charge, and the case turned on causation, where the county medical examiner's undisputed testimony tied the death to cerebral hypoxia secondary to the stab wound.⁹ Changing only the jurisdiction produces the other pole.

Step four keeps the time limit in its place. Students lose points here when they treat a death inside the period as proof that the defendant caused it, because the period only decides whether the homicide charge is available. The injury must continue to affect the victim's body until death, and if it ceases to operate and death ensues from another cause, no murder or manslaughter has been committed.¹⁰ The chain holds, by contrast, when the wound causes a gradual decline in health ending in death, and the negligence of the wounded person or the unskilful treatment of surgeons that hastens the death does not excuse the defendant.¹¹ That is why the kidney infection in Rogers did not interrupt causation: the infection was a common complication of the coma, and the coma came from the wound.¹²

The two questions can also be combined in a single answer. In a common-law jurisdiction a death outside the period ends the homicide discussion at once, and the writer need not decide whether the wound caused the death. In a jurisdiction that has abolished the rule, or on a death inside the period, the writer states that the time limit is satisfied and then proves or disputes causation with the ordinary tools, never treating the first conclusion as if it settled the second.