Name:	Kizma Anuice -	Reply
Subject:	Could be a very interesting case.
Date:	9/20/2010 3:57:55 PM

  1. Can they prove intoxication.  - probably not

2. Is the charging statute an offshoot of the fellony-murder or mis-man laws?

3. Will Model Penal Code type provisions be applied?

4. Is there any case law? I don't know

Unlike the common law, the "but-for" test is the exclusive meaning of "causation" under the Model Penal Code. The Code treats matters of "proximate causation" as issues relating instead to the defendant’s culpability.  That is, in order to find the defendant is culpable, the social harm actually inflicted must not be "too remote or accidental in its occurrence from that which was designed, contemplated or risked. [MPC §2.03(2)(b), (3)(c)]  In such circumstances, the issue in a Model Code jurisdiction is not whether, in light of the divergences, the defendant was a "proximate cause" of the resulting harm, but rather whether it may still be said that he caused the prohibited result with the level of culpability—purpose, knowledge, recklessness, or negligence—required by the definition of the offense.

In the rare circumstance of an offense containing no culpability requirement, the Code provides that causation "is not established unless the actual result is a probable consequence of the defendant’s conduct." [MPC § 2.03(4)]  This would mean that in a jurisdiction that recognizes the felony-murder rule, but which applies Model Penal Code causation principles, a defendant may not be convicted of felony-murder if the death was not a probable consequence of his felonious conduct.