The Eggshell Skull and Other Causation Challenges: b.Sanhedrin 78

Today’s page features two recognized problems in criminal causation of homicide: the issue of multiple contributing factors and the problem of a preexisting condition that hastened death.[1] Today, issues of medical causality often open the door to expert testimony about the cause of death, but the forensics are not the only or even dominant factor; criminal law theories factor in criminal energy, deterrence, and contribution as well.

Let’s start with the case of multiple assailants. Many jurisdictions hold multiple defendants charged for the same homicide liable, even if the blow that caused the death was proximately caused by a specific perpetrator–and even if the other defendants did not actually participate in the beating. In British law, this is governed by the Joint Enterprise doctrine (critiqued in this Guardian article); U.S. federal law recognizes the contributions of multiple accomplices in various capacities because “society fears the crimes of
several more than the crimes of one.”

The Talmud doesn’t seem to adopt similar ideas of broad responsibility. Consider a scenario in which ten people beat up a man to death with sticks:

תָּנוּ רַבָּנַן: הִכּוּהוּ עֲשָׂרָה בְּנֵי אָדָם בַּעֲשָׂרָה מַקְלוֹת וָמֵת, בֵּין בְּבַת אַחַת, בֵּין בְּזֶה אַחַר זֶה – פְּטוּרִין. רַבִּי יְהוּדָה בֶּן בְּתִירָא אוֹמֵר: בְּזֶה אַחַר זֶה, הָאַחֲרוֹן חַיָּיב, מִפְּנֵי שֶׁקֵּירַב אֶת מִיתָתוֹ.

The rabbis think no one can be held responsible for the death, which cannot be causally tied to any particular strike. Rabbi Yehuda ben Betira believes the last to hit is responsible, as he hastened the death. Rabbi Yohanan believes that both perspectives refer to possible interpretations of Leviticus 24:17: וְאִ֕ישׁ כִּ֥י יַכֶּ֖ה כׇּל־נֶ֣פֶשׁ אָדָ֑ם מ֖וֹת יוּמָֽת׃ (a man who kills “a human soul” shall be put to death). The verse is interpreted as referring to an entire human soul (as opposed to someone whose life is already in peril). Because of this, two sister rules reach opposite conclusions: there’s a rule about killing a man who has a wound that will kill him anyway within a year (הוֹרֵג אֶת הַטְּרֵיפָה), in which the killer is not liable (as the wound is visible and not attributed to the killer). And there’s a rule about killing a man who is dying from an illness caused by the heaven (גוֹסֵס בִּידֵי שָׁמַיִם), in which the killer is liable for hastening the death (as the cause of death is not visible). The rabbis think that our multiple assailants case is akin to the former, and Rabbi Yehuda thinks it is akin to the latter. Rabbi Yehuda’s logic also bolsters a scenario discussed by Rav Sheshet: הַמַּכֶּה אֶת חֲבֵירוֹ וְאֵין בּוֹ כְּדֵי לְהָמִית, וּבָא אַחֵר וֶהֱמִיתוֹ – a person who inflicts a non-lethal blow followed by a person who inflicts a lethal blow. Following Rabbi Yehuda’s logic requires holding the second striker liable.

It looks like the absolution of the man who killed the person with the lethal wound is not the function of a moral principle, but rather of lack of evidence: Rava believes that, if the killing occurs in view of the court (and thus there is unimpeachable testimony – עֵדוּת שֶׁאִי אַתָּה יָכוֹל לַהֲזִימָּהּ), even this killer should be held liable. But what if the killing occurred in the presence of witnesses who have been impeached? Here, Rav Ashi suggests that the impeached witnesses should not be killed, as the victim would have already died.

I’m skipping a few twists and turns (which deal with the innocence or guilt of animals who kill) to get to the next proximate cause issue:

מַתְנִי׳ הַמַּכֶּה אֶת חֲבֵירוֹ, בֵּין בְּאֶבֶן בֵּין בְּאֶגְרוֹף, וַאֲמָדוּהוּ לְמִיתָה, וְהֵיקֵל מִמַּה שֶּׁהָיָה, וּלְאַחַר מִכָּאן הִכְבִּיד וָמֵת – חַיָּיב. רַבִּי נְחֶמְיָה אוֹמֵר: פָּטוּר, שֶׁרַגְלַיִם לַדָּבָר.

Here, the rabbis address a mishna that deals with an issue known in criminal causation as the Thin Skull doctrine. The idea is that assailants should be responsible for killing people whose preexisting conditions made them more vulnerable to the blow (even if this fact is unknown to the assailant), but not when the sensitivity is very extreme. But Talmudic sages had no access to anything resembling modern forensics, and so, their parsing out of the mishna requires speculating about the victim’s condition only from what can be seen externally.

The basis for Rabbi Nehemiah’s absolution of the killer here is Exodus 1:19, a case in which someone suffers a beating and is later seen walkinr around in the market. In the biblical case, the striker is absolved. Rabbi Nehemiah things this case should be dealt with the same: the person seemed to be getting better, and thus presumably *was* getting better, and if he ended up dying, causality is undermined. There are rabbis who disagree with Rabbi Nehemiah, and require that the killer be arrested (מְלַמֵּד שֶׁחוֹבְשִׁין אוֹתוֹ) until the victim’s fate can be ascertained. This, by the way, is not their innovation: there are some biblical verses in which pretrial detention in cases of uncertainty is required, such as a Shabbat-violating wood gatherer and a blasphemer (these analogies, though, are imperfect: the wood gatherer was to be killed – they just could not decide on how to do it – and the detention of the blasphemer seems to have been an emergency measure).

The following discussion examines a few twists and turns in the victim’s fate, based on two variables: the initial prognosis and what ended up happening. Here’s the rest of it:

בִּשְׁלָמָא לְרַבִּי נְחֶמְיָה, הַיְינוּ דִּכְתִיבִי תְּרֵי אוּמְדָּנֵי: חַד – אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד – אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה. אֶלָּא לְרַבָּנַן, תְּרֵי אוּמְדָּנֵי לְמָה לִי? חַד אֲמָדוּהוּ לְמִיתָה וְחָיָה, וְחַד אֲמָדוּהוּ לְחַיִּים וָמֵת. וְרַבִּי נְחֶמְיָה, אֲמָדוּהוּ לְחַיִּים וָמֵת – לָא צְרִיךְ קְרָא, שֶׁהֲרֵי יָצָא מִבֵּית דִּין זַכַּאי. תָּנוּ רַבָּנַן: הַמַּכֶּה אֶת חֲבֵירוֹ, וַאֲמָדוּהוּ לְמִיתָה, וְחָיָה – פּוֹטְרִין אוֹתוֹ. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן. וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – הַלֵּךְ אַחַר אוֹמֶד הָאֶמְצָעִי, דִּבְרֵי רַבִּי נְחֶמְיָה. וַחֲכָמִים אוֹמְרִים: אֵין אוֹמֶד אַחַר אוֹמֶד. תַּנְיָא אִידַּךְ: אֲמָדוּהוּ לְמִיתָה – אוֹמְדִין אוֹתוֹ לְחַיִּים. לְחַיִּים – אֵין אוֹמְדִין אוֹתוֹ לְמִיתָה. אֲמָדוּהוּ לְמִיתָה וְהֵקֵל מִמַּה שֶּׁהָיָה – אוֹמְדִין אוֹתוֹ אוֹמֶד שֵׁנִי לְמָמוֹן, וְאִם לְאַחַר כֵּן הִכְבִּיד וָמֵת – מְשַׁלֵּם נֶזֶק וָצַעַר לַיּוֹרְשִׁים. מֵאֵימָתַי מְשַׁלֵּם? מִשָּׁעָה שֶׁהִכָּהוּ. וּסְתָמָא כְּרַבִּי נְחֶמְיָה.

If the victim was expected to die but recovered, the assailant is exempted; if the recovery is partial, the assailant pays damages. But if, after the court’s determination, the victim suddenly got worse and died, there’s a dispute: Rabbi Nehemiah believes that the assailant gets off because of the trial is over (double jeopardy!). Other rabbis believe that you reopen the case, as the intermediate assessment was erroneous and the earlier assumption that the victim was to die was correct. A different baraita requires a reassessment of the victim as his condition changes; if the assailant paid the victim damages after a partial recovery and then the victims died, the assailant pays damages to the victim’s family. The damages cover for the pain and suffering since the assault, rather than dating back to incurring the preexisting condition.

[1] The multiple assailants issue is the last one I studied with my father when he was hospitalized. May any merit derived from our learning today exalt the memory of my dad’s wisdom and goodness.