Debate on Voluntary Conduct and Criminal Liability: Mens Rea in Recklessness & Negligence, Study notes of Criminal Law

Download Debate on Voluntary Conduct and Criminal Liability: Mens Rea in Recklessness & Negligence and more Study notes Criminal Law in PDF only on Docsity! THE ELEMENT OF MENS REA IN RECKLESSNESS AND "CRIMINAL NEGLIGENCE" EDWARD W. HAUTAMAKI* A fundamental principle of Anglo-American criminal law is that for conduct to be punishable criminally, there must be a concurrence of criminal intent, the mens rea, and of a forbidden act, resulting in a proscribed harm. Based on the premise that criminal sanctions should not be imposed on those who act involuntarily, or without the required criminal intent, the converse of this rule is that criminal sanctions should fall only on those who knowingly violate those rights of others which the state protects. The desirability of re- quiring mens rea represents an ideal, as shown by the fact that the element of criminal intent has been abrogated in the strict liability offenses. One accepting the desirability of continuing mens rea as an element of criminal offenses is hard put to find a rational basis for the concept that homicide resulting from negligent conduct alone suffices for criminal liability, and thus for the concept of involuntary manslaughter. The difficulty stems from a clash between the desire to continue the requirement of criminal intent, with the definitional inconsistencies flow- ing in the wake of the terms "negligence" and "involuntary," which imply an absence of intent or of even a mental aware- ness that a risk has been incurred. Harms caused intentionally and negligently are directly at odds with each other. At one extereme lies intentional harm, properly and traditionally the subject of criminal sanctions. Here the actor adverts to the possibility of harm, and then acts or fails to act either with the express purpose of achieving.the harm, or with knowledge that the proscribed harm must inevitably follow his act or omission, however much he may not desire the consequences. At the other extreme lies the negligent conduct sufficient to support civil liability. Here there is an entire absence of intent. The actor neither desires the consequences nor deems them in- * 3rd year law student Duke University; A.B. Duke, 1950. DUKE BAR JOURNAL evitable, if he adverts to them at all. In the language of tort law he creates an unreasonable risk of harm to another. On the basis of an objective standard by which his conduct is later tested, he has failed to act as a reasonably prudent man under the circumstances would have acted. Such harms are to be vindicated in civil courts. Between these extremes of conduct lies an ill-defined mid- ground, reckless conduct. In brief, reckless conduct is com- pounded of the elements of the actor's having (1) actual knowledge that a course of conduct he is about to embark upon involves a high degree of risk of causing death or substantial harm to another, and (2) a conscious decision to risk occurrence of the harm. Where these strict require- ments are met, the reckless conduct is properly the subject of criminal punishment. While the actor cannot be said to have intended the harm (indeed, he does not wish the harm to occur; he is only indifferent or reckless as to whether it occurs), he has intended at least to risk occurrence of the harm. Where actual knowledge of the extent of danger is required, the conduct lies closer to the pole of intentional harm, but where a court decides it suffices that a reasonable man would have known the danger, the conduct approaches the opposite extreme of negligence. Two Kentucky cases which point out neatly the essential distinctions between negligence and recklessness are Com- monwealth v. Tackett1 and Largent v. Commonwealth.2 In the Tackett case, the defendant was indicted for volun- tary manslaughter. The evidence tended to show he had purchased a truck the day before, and had no knowledge of any defects therein. While rounding a curve at about 35 to 40 m. p. h., he applied his brakes to avoid hitting some children who had run into his path. In so doing, the wheels of the truck locked, causing the truck to run into a group of persons standing at the roadside, killing two. The court, on appeal, affirmed the defendant's acquittal. Whatever the possibility of his civil liability, he was not criminally liable. 1 299 Ky. 731, 187 S.W.2d 297 (1945). 265 Ky. 598, 97 S.W.2d 538 (1936). THE ELEMENT OF MENS REA IN RECKLESSNESS and the proper degree needed for criminal liability, make it clear that ordinary negligence is not enough, and that what is needed for criminal liability is recklessness. The rule that ordinary negligence is not enough for crim- inal liability has been ably stated in People v. Wells,5 where the court said: ". the defendant can be held criminally respon- sible only if his acts under the circumstances con- stituted a reckless disregard of the consequences of his act, and an indifference as to the rights of others. 'Mere lack of foresight, stupidity, irre- sponsibility, thoughtlessness, ordinary careless- ness, however serious the consequences may happen to be, do not constitute culpable negligence. There must exist in the mind of the accused, at the time of the act or omission, a consciousness of the prob- able consequences of the act, and a wanton disre- gard of them." People v. Carlson, 187 Misc. 230, 26 N.Y. S.2d 1003 (1941)." Under this approach, which either expressly refers to recklessness, or inarticulately gropes toward a standard of recklessness though phrased in varying degrees or types of negligence, it has been held one could not be convicted of manslaughter for starting a fire by smoking in bed and then failing in his confusion upon discovering it to give the alarm to others in the house ;" where he carelessly shot another hunter believing him to be a deer ;7 where he caused the death of another when the wheels of his truck locked ;s or them ordinary negligence suffices for a criminal conviction, see State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941); State v. Ramser, 17 Wash.2d 581, 136 P.2d 1013 (1943); People v. Carmen, 36 Cal.2d 768, 228 P.2d 281 (1951); Wilson v. State, 70 Okla.Cr. 262, 105 P.2d 789 (1940). For judicial doubts as to the wisdom of such legislation, see the Hedges case, which leaves the problem to legislative solution. Note also the highly moralistic tone of the opinion in the Wilson case; the validity of this case is doubtful in the light of Deberry v. State, - Okla.Cr. _, 219 P.2d 253 (1950), which requires a higher degree of negligence than does the Wilson case. 5 186 Misc. 979, 66 N.Y.S.2d 161 (1946). People v. Hoffman, 162 Misc. 677, 294 N.Y.S. 444 (1937). People v. Joyce, 192 Misc. 107, 84 N.Y.S.2d 238 (1948). "The killing must be the result of culpable negligence." ' Commonwealth v. Tackett, supra, note 1. DUKE BAR JOURNAL where his failure to check an airplane caused the death of a passenger, when a check would have revealed structural de- fects in the plane.9 Similarly, more than the ordinary neg- ligence needed for tort law has been held necessary to sup- port a conviction of manslaughter where the defendant fail- ed to use due care to see that a hawser cleared the deceased's fishing boat, causing the deceased's drowning by knocking him into the water ;1o where he accidentally killed a passen- ger by driving into a ditch to avoid a collision with an on- coming vehicle;" or where the defendant killed a pedestrian by failing to observe the full width of a pedestrian cross- walk. 1 2 Where the test is phrased in terms of a high degree of negligence, it has been held reversible error to fail to charge a jury as to the higher degree of "negligence" needed for criminal sanctions, as compared to the lower degree suffi- cient for tort liability.13 While it has been held that moral reprehensibility alone is not sufficient to justify a conviction for manslaughterter,"' 9 French v. State, 235 Ala. 570, 180 So. 592 (1932). "Criminal negli- gence may not be predicated upon mere negligence or carelessness, but only upon that degree of negligence or carelessness which Is denomi- nated 'gross' ". 10 State v. Arnold, 3 Terry 47, 27 A.2d 81 (Del. 0. & T. 1942). It must be shown beyond a reasonable doubt that the defendant's "omission or negligence amounted to a reckless disregard for the safety" of others. u State v. Bast, 116 Mont. 329, 151 P.2d 1009 (1944). Conviction of manslaughter reversed for failure to show the required criminal Intent. The record did not show any evidence of the "evil design, intention, or culpable negligence" necessary to sustain a conviction. 1" State v. Powell, 114 Mont. 571, 138 P.2d 949 (1943). "The negligence must be aggravated, culpable, gross, or reckless." 13 State v. Wright, 128 Me. 404, 148 A. 141 (1929); Shows v. State, 175 Miss. 604, 168 So. 862 (1936). Trial court charged in the Shows case that ". . . culpable negligence is the want of that usual and ordinary care and caution in the performance of an act, usually and ordinarily exercised by a reasonable and prudent person under similar circum- stances and conditions." Said the court in reversing a conviction had under this instruction: "Criminality cannot, be predicated upon mere negligence or carelessness . . . the instructions given for the state made a conviction on simple negligence, and were improper in a crim- inal prosecution." 1 People v. Pace, 220 App.Div. 495, 221 N.Y.S. 778 (1927). Reversible error to charge "culpable negligence" must be "culpable, or blame- worthy, or criminal," as under such a charge "the jury might well THE ELEMENT OF MENS REA IN RECKLESSNESS courts are quick to affirm convictions based on either some epithetic type of negligence or recklessness, where the facts justify an inference of such conduct. Thus, manslaughter convictions have been upheld where the defendant, knowing the deceased was a diabetic, advised him to forego the use of insulin in favor of a carbohydrate-rich diet and sought to defend his action on the grounds that "insulin is not human -it is not fit for a dog" ;15 where he carelessly drove in the wrong lane of traffic;16 or attempted to pass a car ahead at a very high rate of speed and ran into another car which had pulled almost completely off the highway to avoid the impending collision." Standard By Which the Recklessness Is Measured While it is clear more than ordinary negligence is needed for criminal liability, the courts disagree as to the proper test of recklessness. Some follow the rule properly applica- ble to criminal law, as it emphasizes voluntary conduct, i.e., the defendant must be consciously aware of the fact that he is creating a situation likely to result in death or substantial harm to another, and he must then risk occurrence of the have obtained the impression that negligence to the extent of blame- worthiness only, failure to use ordinary care (as well as reckless in- difference) met the test as to criminal culpability." '1 State v. Karunsky, 197 Wash. 87, 84 P.2d 390 (1938). For a similar case holding a chiropractor criminally liable where he advised a dia- betic to forego the use of insulin, knowing the patient to be diab3tic, see State v. Heines, 144 Fla. 272, 197 So. 787 (1940). 11 Zirlle v. Commonwealth, 189 Va. 862, 55 S.E.2d 24 (1949) (reversed on other grounds). 17 Collins v. State, 66 Ga. App. 325, 18 S.E.2d 24 (1941). While the conduct in this case suggests recklessness, and while the court specifies that more than ordinary negligence is needed for criminal liability, the court continues in a vein disturbingly reminiscent of the misdemeanor manslaughter rule: "But the mere fact that an accident happened through an honest apprehension of the surrounding circumstances, or by reason of a mistake in judgment, will not excuse the person whose act caused it, where such misapprehension or omission resulted from negligence in failing to observe and obey any rule or precaution which it is his duty to observe." For another suggestion that a killing occur- ring while the defendant is in breach of a statute may be judged by a laxer standard, see State v. MAiller, 220 N.C. 660, 18 S.E.2d 143 (1942). DUKE BAR JOURNAL evidence of recklessness, raising the questions of proof to be discussed later. There is no serious judicial doubt about the liability of a defendant where his conduct meets the strict test of reck- lessness, i.e., where he knows the danger and risks its occur- rence. But accepting the premise that mens rea is a desir- able element to continue in criminal law inasmuch as it em- phasizes the voluntary aspects of conduct, cases applying a reasonable man test in determining criminal liability are wrong on principle. They err in making criminal liability turn on an objective test of intent, whereas traditionally a subjective test is to be applied in criminal law. In analyzing the cases, it is important to bear in mind the' distinction between a state of mind and how that state of mind is proved. Where mens rea is required, the state of mind of the accused at the time of his act is determined by a subjective test of liability, one taking into consideration the individual traits of the defendant. On the other hand, the mental test applied in tort cases of negligence is an ob- jective test of liability-the reasonable man test. This test ignores any individual mental traits or defects of the de- fendant and it makes no difference a defendant was in fact unaware of the unreasonable risk of harm he created; it suf- fices that a reasonable man under the circumstances, who represents the community ideal of behavior, would have realized the risk created. Since in both civil and criminal cases it is rare that we can know the state of a man's mind, absent an open admis- sion of guilt or testimony to that effect as part of the res gestae, proof of the state of mind must necessarily be by objective means. Here it is crucial to note that "objective" takes on a meaning different from that which it has in the phrase "objective test of liability." In this context, object- ive means proof by facts and data which are external in the sense they are physically observable to the trier of fact. It is on the basis of the externally observable aspects of the defendant's conduct that his state of mind must be determ- ined. Only in this sense of external proof can the test of liability in recklessness in criminal cases be called "object- THE ELEMENT OF MENs REA IN RECKLESSNESS 65: ive." Hence, it is improper to say that because of the prac- tical necessity of proving a subjective state of mind by ob- jective means, the standard in criminal law is an objective one. 24 Judicial confusion as to this distinction is seen in Com- monwealth v. Welansky, 25 where the defendant, owner of a nightclub, was convicted for manslaughter for his failure to observe that due care was used in providing proper egress from the club in case of fire. The evidence showed some- body had been remarkably careless in attending to this mat- ter. False doors obscured exits; some exits were locked and others equipped with defective anti-panic hardware. The stairs leading from a basement cocktail lounge were very narrow in light of the many patrons. In the ensuing Cocoanut Grove fire, scores were burned to death. In affirm- ing a conviction of involuntary manslaughter, the court said, as to recklessness: "The standard of.wanton or reckless conduct.is at once subjective and objective . . . Knowing facts that would cause a reasonable man to know danger is equivalent to knowing danger . . . The judge charged the jury properly when he said, 'to consti- tute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm.' If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omis- sion which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary 2' The failure of courts to observe this distinction between the sub- jective test as to the state of mind and the objective means whereby it is proved is undoubtedly the reason why the Texas courts have nullified the requirement of actual knowledge in the Texas manslaughter statute, which requires there be "apparent danger" on the part of the defendant. This statutory requirement has been done away with by judicial inter- pretation in Vasquez v. State, 121 Tex.Cr.R. 478, 52 S.W.2d 1056 (1932), where it was held the trial court committed no error in refusing to charge that "apparent danger" required conscious awareness of danger. And in Johnson v. State, supra, note 17, the court stated that whether apparent danger in fact existed "is not to be determined from the view- point of the accused alone, but rather from the facts as a whole." 316 Mass. 383, 55 N.E.2d 902 (1944). DUKE BAR JOURNAL man would have realized the gravity of the danger or not ...But even if a particular defendant is" so stupid or so heedless that in fact he did not realize the grave danger he cannot escape the im- putation of wanton or reckless conduct in his dan- gerous act or omission, if an ordinary man under the same circumstances would have realized the gravity of danger. A man may be reckless within the meaning of the law although he himself thought he was careful." Note that the appellate court's approval of the latter por- tion of the trial court's charge, which in effect makes ordi- nary negligence enough for criminal liability, is in conflict with a later portion of the opinion which denies there is any such thing as "criminal negligence" at Massachusetts com- mon law. Further, the conviction in the Welansky case was under a statute apparently meant for voluntary harms, in- asmuch as the court made a point of approving the statutory form of indictment even though used here for involuntary manslaughter. "Notwithstanding language used commonly in earlier cases, and occasionally in later cases, it is now clear .. .that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such things as criminal negligence." To state, as does the court, that the test of wanton or reckless conduct is at once subjective and objective is to state a test which means nothing. The court has confused the subjective state of mind with the objective means where- by it is proved. Properly phrased, the charge to the jury ought to make it clear tlat whether the defendant had actual knowledge is to be determined from his viewpoint, by a sub- jective test. But proof of that state of mind must be by means which is objective only in the sense the jury must draw inferences from the evidence presented. Undoubtedly the Welansky case when judged in light of the ensuing holocaust, makes it tempting to relax the strict- ness of criminal law so as to permit prosecution of those