Drug Induced Homicide Defense Toolkit
not be convicted unless his conduct is “both (1) the actual cause, and (2) the ‘legal’ cause (often called the ‘proximate cause’) of the result.”39 Accordingly, depending on the constraints of the jurisdiction, defense counsel may choose to litigate either or both of the traditional causation requirements—the actual (or “but-for”) causation and the legal (or “proximate”) causation—in drug-induced death prosecutions. This section first discusses both causation requirements as well as the intervening actor doctrine. Next it addresses specific strategies for raising causation issues at trial—including challenging the methodology of the prosecution’s medical expert, hiring a toxicologist or forensic pathologist to testify regarding the cause of death, and closely scrutinizing the death certificate and medical examiner autopsy report. 1. But-for causation Under traditional causation principles, the first step to determining whether a defendant’s acts caused death is the but-for causation requirement. But-for causation “represents ‘the minimum requirement for a finding of causation when a crime is defined in terms of conduct causing a particular result.’”40 But-for causation requires the
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571 U.S. 204, 210 (2014) (first citing H.L.A. Hart & Tony Honoré, Causation in the Law 104 (1959); then quoting Wayne R. Lafave, Substantive Criminal Law § 6.4(a) (2d ed. 2003)). 40
Burrage, 571 U.S. at 211 (quoting Model Penal Code § 203(1)(a)).
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