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- Title
Taking a Chance with the Burden of Proof: The But-For Test in Homicide Case Law.
- Authors
Price, Bradley D.
- Abstract
Homicide cases involving concurrent causation present a potential problem with the traditional but-for causation test. Professor Eric Johnson articulated this problem in a recent article in the Iowa Law Review, where he contends that the tort doctrine of lost chance explains findings of liability in cases of concurrent causation. This Note argues that lost chance does not qualify as a species of causation--primarily because it does not comport with the requirement of proof beyond a reasonable doubt--and hence should not be used to determine whether the element of causation has been met in homicide prosecutions. This issue has gone largely unnoticed by legislatures, who need to either assimilate these cases under the attempt doctrine or codify an appropriate offense that takes account of the causal problems inherent in them.
- Subjects
BURDEN of proof; JUDGE-made law; TRIALS (Homicide); CAUSATION (Criminal law); CRIMINAL liability; JOHNSON, Eric
- Publication
Iowa Law Review, 2007, Vol 92, Issue 2, p703
- ISSN
0021-0552
- Publication type
Article