Criminal Liability for Loss of a Chance
72 Pages Posted: 5 Aug 2013
Date Written: 2005
In a number of recent cases, appellate courts have upheld the homicide convictions of criminal defendants whose conduct merely reduced the victim’s chances of surviving another injury or illness that likely would have killed the victim anyway. Cases of this kind, which are known among tort scholars as “lost chance” or “loss of chance” cases, do not satisfy the criminal law’s traditional requirement of “but for” causation: because the other injury or illness likely would have killed the victim anyway, it cannot be said that the victim would not have died “but for” the defendant’s conduct. This Article, though, argues that the courts’ departure from tradition in these cases is justified. Specifically, this Article argues that treating “lost chance” as a species of causation is consistent with the way we use the word “cause” and with the policies underlying the decisions of the state legislatures to assign import to causation in the classification of crimes. Finally, the Article argues that this exception to the “but for” test also explains another class of cases in which courts have not required proof of “but for” causation: cases where defendants are prosecuted as accomplices.
Keywords: causation, criminal law, overdetermination, lost chance, accomplice liability
JEL Classification: K14
Suggested Citation: Suggested Citation