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92.4 Involuntary Manslaughter
92.4.2 Involuntary Manslaughter: Miscellaneous Issues
92.4.2.1 Involuntary Manslaughter: Defined
92.4.2.2 Homicide: Failure To Perform Duty Imposed By Law -- Requirement of Recklessness or Criminal/Gross Negligence
92.4.2.3 Involuntary Manslaughter: Challenge To "Misdemeanor Manslaughter" Rule
92.4.2.4 Manslaughter/Murder: Effect Of Treatment By Spiritual Means
92.4.2.5 Lack Of Due Caution Is An Improper Standard When Gross Negligence Or Criminal Negligence Is Required
92.4.2.6 Killing While Unconscious: Definition Of Unconscious Required
92.4.2.7 Failure To Secure Infant In Car Seat Is Not "Reckless"
92.4.2.8 Reckless Homicide/Involuntary Manslaughter: Equating
Being Under The Influence With Recklessness Is Improper Mandatory Presumption
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92.4.2.1 Involuntary Manslaughter: Defined
RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 92.4.1.2 [Federal Circuit Model Instructions And Notes].
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92.4.2.2 Homicide: Failure To Perform Duty Imposed By Law -- Requirement Of Recklessness Or Criminal/Gross Negligence
RATIONALE: Homicide liability for failing to perform a duty imposed by law should require recklessness or criminal negligence. Otherwise, homicide liability will be imposed for simple negligence.
POINTS AND AUTHORITIES: There are at least four situations in which the failure to act may constitute breach of legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. (Jones v. United States (DC Cir.1962) 308 F2d 307, 310; see also Flippo v. State (AR 1975) 523 SW2d 390, 393.)
If the omission to act was intentional, but without the intention or expectation of fatality, the crime would be involuntary manslaughter because of criminal negligence. (See Perkins & Boyce, Criminal Law (Foundation Press, 1982) p. 105 3d Ed, 1982; LaFave & Scott, Substantive Criminal Law § 3.3(e), p. 294 (West, 1986); Flippo, 523 SW2d at 393.)
However, if there is no intentional omission to act there must be something more than simple negligence such as recklessness or criminal negligence or gross negligence. (LaFave & Scott, Substantive Criminal Law § 3.3(e), p. 294 (West, 1986).)
Statutes which impose criminal homicide liability (e.g., involuntary manslaughter) for the breach of a duty to act, typically require that the defendant be reckless, grossly or criminally negligent in failing to satisfy this duty. (Ibid.) Hence, a jury instruction based upon such a statute should include that element. (See also Commonwealth v. Levesque (MA 2002) 766 NE2d 50 [where a defendant's failure to exercise reasonable care to prevent the risk he created (neglect of duty to report a fire) was reckless and resulted in death, the defendant could be convicted of involuntary manslaughter; prosecution presented sufficient evidence to allow grand jury to conclude that defendants' choice not to report the fire was intentional and reckless].)
See also FORECITE National™ 92.4.2.7 [Failure To Secure Infant In Car Seat Is Not "Reckless"].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
ELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 92.4.1.2 [Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
To find defendant guilty of involuntary manslaughter for failure to perform ___________________ (insert required conduct), the prosecution must prove beyond a reasonable doubt all three of the following elements:
(1) The defendant had a legal duty, enforceable by criminal punishment, to ______________________ (insert required conduct);
(2) The defendant was [reckless] [criminally negligent] in failing to perform this duty; and
(3) The recklessness proximately* caused the death of _____________ (insert name of victim).
If any juror who has a reasonable doubt as to the existence of any one of the above elements must vote to find defendant not guilty.
* But see FORECITE National™ 55.12 [The Term "Proximate" Is Unduly Confusing].
[See generally LaFave & Scott, Substantive Criminal Law § 3.3(e), p. 294 (West, 1986); see also Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS CLE II(A) inst. 5 [Duty To Act] page 96 (South Carolina CLE, 1994).]
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92.4.2.3 Involuntary Manslaughter: Challenge To "Misdemeanor Manslaughter" Rule
PRACTICE NOTE: See e.g., People v. Wells (CA 1996) 12 C4th 979, 984-89 [50 CR2d 699].
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92.4.2.4 Manslaughter/Murder: Effect Of Treatment By Spiritual Means
RATIONALE: A good faith belief in the ability of spiritual means to heal may be a defense theory depending on the statutory elements of the charge.
POINTS AND AUTHORITIES: If the legislature makes treatment by spiritual means an affirmative defense, then specific instruction on such a defense is required when appropriate. (See Lybarger v. People (CO 1991) 807 P2d 570, 579; but see People v. Rippberger (CA 1991) 231 CA3d 1667, 1682 [283 CR 111] [spiritual means not a defense to manslaughter or child endangerment].)
However, even if the defense is statutorily excluded, the defendant should be permitted a defense theory instruction based on a sincerely held religious belief, to excuse, explain, mitigate, or justify defendant's behavior under the circumstances. (Hermanson v. State (FL 1992) 570 So2d 322, 330.)
There may also be a due process notice problem of the state has addressed treatment by spiritual means by legislation. (See e.g., State v. McKown (MN 1990) 461 NW2d 720, 721 [failure to provide notice of potentially criminal conduct violated federal and state due process standards of definiteness].)
See also
FORECITE National™ 81.1.3.7 [Child Abuse: Treatment By Spiritual Means As Defense Theory].See generally
FORECITE National™ 250.5 [Defenses And Defense Theories: Burden Of Proof On Defendant].FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].
RESEARCH NOTES:
Rosato, "Putting Square Pegs in a Round Hole: Procedural Due Process and Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents," 29 U.S.F. L.Rev 43 (1994).
See also generally, FORECITE National™ 305.13.1 [Manslaughter].
ELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 92.4.1.2 [Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION: [Affirmative Defense]
It is a defense to the crime of [manslaughter] [murder] that the defendant chose and legitimately practiced treatment by spiritual means through prayer in accordance with a recognized method of religious healing, unless the defendant inhibited or interfered with court-ordered medical treatment for the child.
[Source: (COLORADO JURY INSTRUCTIONS, COLJI - Crim 7:43 [Child Abuse-Religious Treatment] (1993 pocket part) (West, 1983).]
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92.4.2.5 Lack Of Due Caution Is An Improper Standard When Gross Negligence Or Criminal Negligence Is Required
PRACTICE NOTE: Some pattern instructions on manslaughter require that the defendant act without "due caution and circumspection." (See e.g, CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.46 [Due Caution And Circumspection-Defined] (West, 6th Ed. 1996).) Without more, this instruction would be insufficient to describe the "wanton and reckless disregard for human life" requirement for manslaughter. (See U.S. v. Shortman ,(9th Cir. 1996) 91 F3d 80, 84.) "[A]cting 'without due caution' is a far less onerous standard than 'gross negligence'...." (Shortman, 91 F3d at 81-82.) Hence, it may be advisable to eliminate the term "due caution and circumspection" from the instructions and replace it with a full and accurate definition of gross or criminal negligence.
RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
RELATED FEDERAL MODEL INSTRUCTIONS:
See
FORECITE National™ 92.4.1.2 [Federal Circuit Model Instructions And Notes].FORECITE National™
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92.4.2.6 Killing While Unconscious: Definition Of Unconscious Required
See
FORECITE National™ 256.9 [Unconsciousness].RESEARCH NOTES:
See generally, FORECITE National™ 305.13.1 [Manslaughter].
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92.4.2.7 Failure To Secure Infant In Car Seat Is Not "Reckless"PRACTICE NOTE: In Commonwealth v. Mitchell (KY 2001) 41 SW3d 434 the court held that a father’s failure to secure an infant child in a car seat as required by Kentucky’s seatbelt law was not sufficient basis to convict for negligent homicide. In Kentucky, A person is guilty of reckless homicide when, with recklessness, he causes the death of another person. (KRS 507.050.) "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation." (KRS 501.020(4).) The Mitchell court held that absent any other evidence of recklessness, the defendant’s failure to secure the child did not reach that level and that the Kentucky Seatbelt Statute (KRS 189.125), does not provide the mental state necessary for a reckless homicide conviction.
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92.4.2.8 Reckless Homicide/Involuntary Manslaughter: Equating Being Under The Influence With Recklessness Is Improper Mandatory Presumption
PRACTICE NOTE: People v. Pomykala (IL 2003) 784 NE2d 784 struck down an Illinois statute that established an unconstitutional mandatory presumption that an accused was reckless when the jury finds that he or she was driving under the influence. The statute, 720 ILCS 5/9-3(b), provided as follows:
In cases involving reckless homicide, being under the influence of alcohol or any other drug or drugs at the time of the alleged violation shall be presumed to be evidence of a reckless act unless disproved by evidence to the contrary.
Relying on People v. Watts (IL 1998) 692 NE2d 229, Pomykala held that the statute violated due process principles because it shifted the burden of production to the accused to rebut the mandatory presumption it unconstitutionally required the trial court to direct a guilty verdict as to an element of the offense if the accused failed to satisfy the burden of production.