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Chapter 52: Criminal Negligence
52.1 Gross Negligence/Criminal Negligence Or Recklessness: Negligent Accident Not Sufficient
52.2 Criminal Negligence: Compared To Ordinary Negligence
52.3 Gross Negligence: Objective Test
52.4 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims
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VOLUME 5 - CHAPTER 52
52.1 Gross Negligence/Criminal Negligence Or Recklessness: Negligent Accident Not Sufficient
RATIONALE: If the jurors find that the defendant's negligence caused the harm to the victim they may be tempted to convict on this basis alone. Hence, when this is the focus of the defense theory a special instruction on this theory may be appropriate upon request.
POINTS AND AUTHORITIES: When a crime requires recklessness, gross negligence or criminal negligence simple negligence is not sufficient to convict even if it caused the harm. (See FORECITE National™ 92.1.4 [Constitutional Challenge To Criminal Liability For Homicide Based On Simple Negligence].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].
SAMPLE INSTRUCTION:
Even if the defendant was negligent, and even if this negligence caused the accidental killing, you still must find defendant not guilty unless you find beyond a reasonable doubt that he was [grossly negligent] [criminally negligent] [reckless].
[See Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS II(A) inst. 4 [Recklessness-Burden Of Proof-Accident] p. 95 (South Carolina CLE, 1994).]
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52.2 Criminal Negligence: Compared To Ordinary Negligence
RATIONALE: Without special instruction the jurors may improperly equate or confuse criminal negligence with their common sense understanding of ordinary civil negligence.
POINTS AND AUTHORITIES: See generally Mosby v. Commonwealth (VA 1996) 473 SE2d 732, 735; U.S. v. Shortman (9th Cir. 1996) 91 F3d 80, 82; see also LaFave & Scott Substantive Criminal Law (West 1986) § 3.7(a)(1).
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].
SAMPLE INSTRUCTION:
Criminal negligence is a substantially higher standard than ordinary negligence that permits recovery of money in a civil suit. The carelessness required to establish criminal negligence is appreciably more serious than that for ordinary civil negligence.
[See Mosby v. Commonwealth (VA 1996) 473 SE2d 732; see also CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI (NY) 2d 125.10 [Criminally Negligent Homicide] ¶ 4 (New York Office of Court Administration 1996).]
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VOLUME 5 - CHAPTER 52
52.3 Gross Negligence: Objective Test
PRACTICE NOTE: The test for determining gross negligence is objective. Thus, the jury must determine whether "a reasonable person in the defendant's [situation] would have been aware of the risk involved. [Citation]." (People v. Bennett (CA 1991) 54 C3d 1032, 1036 [2 CR2d 8]; see also People v. Ochoa (CA 1993) 6 C4th 1199, 1204 [26 CR2d 23].)
See also FORECITE National™ 48.1 [General Principles].
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52.4 Transferred Negligence: Negligent Or Reckless Crimes Should Not Be Extended To Unforeseeable Victims
PRACTICE NOTE: See LaFave & Scott, Substantive Criminal Law § 3.12, p. 403 (West, 1986).