State v. Brelo and the Problem of Actual Causation

Abstract

In criminal and tort law, the concept of causation is typically broken down into two components: actual and proximate causation. While the latter concept is often viewed as complicated and morally fraught, the former is treated as a simple, counterfactual relation: X is a cause of Y if and only if Y would not have happened but for X.Despite its apparent simplicity, this standard picture of actual causation appears to break down in a number of cases. In particular, cases involving concurrent sufficient causation — in which multiple “causes, each of them sufficient to bring about the same harm, are present on the same occasion” — create problems for the standard picture, because each cause’s sufficiency renders every other cause unnecessary. Although such cases are rare, they highlight a potentially fatal flaw in the but for theory of actual causation.Furthermore, cases of concurrent sufficient causation do arise. Last year, in State v. Brelo, a police officer was acquitted for the role he played in the shooting deaths of an unarmed couple — despite the fact that the officer had inflicted fatal wounds on each of the victims — because the judge found that other officers had inflicted fatal wounds as well. In acquitting the officer, the judge relied explicitly on the theory that the lethality of the gunshot wounds inflicted by each officer rendered every other officer’s gunshot wounds unnecessary to the victims’ deaths.Using Brelo as a reference point, this essay explores the problems inherent in the standard picture of actual causation, and it evaluates commonly proposed defenses, modifications, and replacements to this picture. The essay concludes that the standard picture must be abandoned and that at least one replacement — the “NESS” theory of causation — shows some promise. Although NESS is problematic in its own right, it may be the best of a bad bunch when compared with other leading contenders in the legal literature.