1. Section 1.5: Concurrence, Causation, & Harm
Criminal Law
Section 1.5:
Concurrence, Causation, & Harm
This Revision: 08/29/2019
Prepared by Adam J. McKee

2. Elements So Far Some crimes only require the guilty act,
the criminal intent, and
the concurrence between the two.
We will delve deeper into what concurrence means in this Section.

3. New Elements
We will also consider more complex crimes that require that some specified harm result from the defendant’s actions before the elements of the crime are satisfied.
When there is a harm, the additional element of causation must be considered.

4. Concurrence
The idea of concurrence (a.k.a. contemporaneity and simultaneity) is rarely considered in criminal cases.
This is not because the idea is unimportant, but because its presence is usually obvious.
Concurrence means that the guilty act (actus reus) must be triggered by the guilty mind (mens rea).

5. Concurrence Example
Brody, Acker, and Logan provide an excellent example of a situation when concurrence comes into play:
“A man enters a mountain cabin during a blizzard without the owner’s permission to take refuge from the storm. After entering, he sees valuables and decides to take them with him when the weather calms. He is not guilty of burglary if that offense is defined as “breaking and entering a dwelling with the intention to commit a felony therein.” This is so because at the time of his entry into the cabin A had no intention of committing felonious larceny or another felony; he sought only to escape the blizzard. His intention to steal, formed after his entry, did not concur with his breaking and entering the cabin.”
Brody, D.C., Acker, J. R., & Logan, W. A. (2001). Criminal Law. Gaithersburg, Maryland: Aspen. (p. 213)

6. The Arkansas Example
The Arkansas Code is a good example of a situation where the general part of the penal code doesn’t clearly specify concurrence as an element of offenses, but where it is implied within other areas of the law.
While there is no section of the AR code dealing directly with concurrence, we can infer it from the text of § (b):
“A person does not commit an offense unless he acts with a culpable mental state with respect to each element of the offense that requires a culpable mental state.”
That is, action must be coupled with intent.
“…There must be a union or joint operation of act and intention or criminal negligence.”

7. Causation
It is a general rule of the criminal law that an individual is not guilty of a crime unless his or her conduct causes the harm that the law seeks to prevent.
The idea of cause in law is complicated because the term is often broken down into two distinct ideas:
cause-in-fact and
proximate cause.
In other words, the determination of cause in a criminal matter is a bifurcated process.

8. R. v Dalloway (1847) - Facts
In a prosecution for a crime that specifies that a particular harm occur, it is necessary for the state to prove a link between the criminal result and a particular aspect of the defendant’s conduct, such as his negligence.
Let’s use the old English case of R. v Dalloway (1847) as an example.
Dalloway was charged with manslaughter after his cart had struck and killed a young girl who ran out in front of him.
Dalloway had not been holding the horse’s reins at the time.

9. The Rule in Dalloway
The judge in the case instructed the jury that they could convict Dalloway of manslaughter only if they were satisfied that Dalloway could have avoided the accident had he been holding the reins properly.
Factual causation is sometimes referred to as ‘but for’ (or sine qua non) causation, because it can be established only where the alleged result would not have occurred, or would not have occurred at the time or in the way it did, “but for” the defendant’s act.

10. Factual Causation
Cause-in-fact (also called “but-for” causation) must always be shown.
That is, it must be concluded that “but-for” the defendant’s conduct, the prohibited harm would not have occurred.

11. Legal Causation
Legal causation, which is commonly referred to as proximate cause, is a narrower and more subjective concept than factual causation.
In other words, not every cause in fact is a cause in law.
To also be a legal cause, it must be determined to be an “operating and substantial” cause of the consequence being considered in the case.
It is important to note that it does not have to be the only such cause, or even the principal (most important or most relevant) cause.

12. Factual Cause v. Legal Cause
The separation of the legal cause from among all possible factual causes is a tricky business that involves a subjective approach based on common sense.
There is no objective criteria with which to make the distinction.
The distinction, however, must always be based on some aberrant behavior that the law deems culpable.

13. Distance Between Act and Harm
Note that the idea of proximate cause is not always found in the criminal statutes, which provides us with an important example of how case law is important to the study and proper application of criminal law.
The proximate cause language is not present in the Arkansas Code, for example, but the idea is maintained in the final clause of §
The key idea behind proximate cause is distance between the act and the harm; if the distance is too great, we will not hold the defendant culpable.

14. Anderson v. State
The “but-for” language has been used by the Arkansas courts in several cases.
For example, in Anderson v. State, the court stated that
“… testimony that death would not have occurred but for the trauma and that the alcohol consumption alone was not the cause of death satisfies the statutory requirement.”
Under the Arkansas Supreme Court’s interpretation of the statute, where conduct hastens or contributes to a person's death, it is a [legal] cause of the death.

15. ACA §
“Causation may be found where the result would not have occurred but for [emphasis added] the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.”

16. Tackett v. State
In this case a doctor testified that the victim's comatose condition was caused by the automobile accident which made her more susceptible to infection and that pneumonia was the immediate cause of her death and that the car accident was the proximate cause of her death.
Also, there was testimony by other witnesses that the appellant had caused the accident.
Under these circumstances, the court held that the evidence was sufficient to prove the cause of the victim's death was the automobile accident.
Tackett v. State, 298 Ark. 20; 766 S.W.2d 410 (1989).

17. Case by Case Basis
The relationship between the defendant’s criminal act and the causal chain of events that leads to the prohibited outcome must be considered on a case by case basis.
When the issue arises in murder cases where the injuries are not immediately lethal but the victim later dies, the analysis can be quite complicated.
At common law, the courts established a year and a day rule.

18. Year and a Day Rule
According to this rule, if a victim died of the injuries inflicted by the defendant within one year and one day, then the injuries could be ruled the legal cause of the death.
If more time had passed that the year and a day, then the injuries could not be ruled the legal cause of death.
In effect, the rule established a one year statute of limitations on murder charges.
The reason for this was the elementary state of medical sciences at the time.
There was no good way to determine why someone had died, and it didn’t make sense to people in those days that someone could die more than a year later from injuries received during a criminal act.

19. Modern Rules
In modern times, forensic pathology has come very far from the circumstances under which the common law rule was developed.
Medical examiners can determine cause of death with a great deal of certainty, and the common law rule is now pointless and outdated.
Many states have accordingly done away with the common law rules, preferring that criminal law be a matter of statute than a blend of statutes and common law rules.

20. Harm In On Liberty, John Stuart Mill stated that,
"The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
For Mill and other Utilitarians, the entire purpose of the criminal law was to keep citizens from harm.
While Mill, like many today, disagreed with the idea of victimless crimes, it is obvious that our legal system reserves its harshest punishments for those who harm others.

21. Proving the Harm
In crimes where causation is a factor, it is obvious that something must be caused.
Harm, then, refers to the specific result prohibited by the statute.
In murder, for example, the result is the death of a living human being.
Often proving that the prohibited harm occurred is the easiest element for the prosecution to prove in a criminal case.
A death certificate and an autopsy report, for example, will usually be sufficient to establish that a person was killed and what the manner of death was.

22. The Hard Part
The harder part is linking the defendant to the act that ultimately ended with the victim’s death.
It is relatively easy to show that a victim is dead and that a gunshot wound is the proximate cause of death, but it is harder to prove that the defendant pulled the trigger.

23. Circumstantial Evidence?
There are times, however, when demonstrating that the harm occurred can be difficult.
The most sensational of these is when a prosecutor goes forward with a murder prosecution in a case where a body was never found.
There are cases where prosecutors were able to win on circumstantial evidence, but these cases are noteworthy because of their rarity.

24. Minor Harms
Often harm can not be proven in a case when the harm is relatively minor (when compared to homicide).
Say for example, that Bob is getting his rent money together for the month, and has it in cash in an envelope on his kitchen table.
Bob’s friend Bubba drops by and asks Bob to accompany him on a weekend of drinking and debauchery.
Bob declines, explaining that he has too much to get done this weekend and that he will have to take a raincheck.

25. A Hypothetical
Bubba is hurt by his friends slight, and throws his empty beer across the living room and storms out of Bob’s apartment.
Bob knows that Bubba is irrational and dramatic when he’s been drinking, so he dismisses the incident and gets back to his errands.
As he goes to collect his rent money and deliver it to the landlord before the office closes for the day, he notices that the envelope is missing.

26. Evidence in the Hypothetical
Bob realizes that Bubba must have taken the money to “get back at him” for “ditching him” and Bob decides to call the police.
Officers show up at Bob’s apartment and dutifully take his statement.
He can tell that the officers are becoming less and less interested as the facts become clear to them.
The stolen money, while amounting to a felony because of the amount taken, was all in cash and has no identifiable characteristics.

27. The Unfortunate Reality
The envelope had “rent” handwritten on the front of it, but to positively identify the writing as Bob’s and link it to the money would require the expert testimony of a questioned document examiner, which the crime lab would not supply in a case of simple theft.
There are no other circumstantial factors that suggest that anything criminal had taken place such as signs of forced entry, signs of a struggle, or an altercation between the two former friends.
As the officers know from experience, the only way to make a case under those circumstances is for Bubba to confess that he took the money and say what he did with it.

28. The Criminal Justice Reality
The uncomfortable truth is that limited human resources, limited financial resources, limited forensic support services, and limited education and training, solvability factors play a critical role in determine which cases are worked and which ones are relegated to the “cold case files” before they ever begin.
This fact underscores the critical differences between academic treatments of criminal law and the actual implementation of those laws in the field by criminal justice professionals.