Criminal Negligence – Defintion, Application & Defenses

Criminal negligence refers to conduct in which a person ignores a known or obvious risk, or disregards the life and safety of others. Federal and state courts describe this behavior as a form of recklessness, where the person acts significantly differently than an ordinary person under similar circumstances. An example is a parent leaving a loaded firearm within reach of a small child.

Certain crimes base culpability on a criminally negligent standard. An example is the offense of involuntary manslaughter. For a conviction of this crime in most states, the prosecutor has to prove that the accused killed someone unintentionally but acted with unlawful negligence.

Criminal negligence is often contrasted with civil negligence. The latter is what an injured party must prove in a civil personal injury case to recover money damages. Unlike criminal negligence, civil negligence is:

1. conduct that is just short of how a reasonable person would act, and
2. is not a drastic departure from such actions.

Defense lawyers draw on several legal strategies to contest allegations of criminal negligence. These include showing that:

1. a defendant committed an act as the result of a mistake or accident,
2. the accused had no knowledge that his/her act created a risk of danger, and
3. the defendant acted with reasonable care.

California criminal law incorporates the concept of criminal negligence. The law also assigns it the same meaning as above.

Our criminal defense attorneys will highlight the following in this article:

• 1. What is criminal negligence?
  • 1.1. More than a mistake or accident
  • 1.2. Knowledge of a danger
• 2. What are some examples?
• 3. How does criminal negligence differ from civil negligence?
  • 3.1. Level of proof
  • 3.2. Punishment
• 4. How is criminal negligence related to intent?
• 5. What are the best defense strategies?
  • 5.1. Mistake or accident
  • 5.2. No knowledge
  • 5.3. Reasonable care
• 6. What is the law in California?

1. What is criminal negligence?

Criminal negligence is when a person acts with a disregard for obvious risks to human life and safety. The State must prove that a defendant acted with criminal negligence to convict that person of certain offenses.

In these cases, a prosecutor must show the following to prove that an accused acted with criminal negligence:

1. he/she acted recklessly and created a high risk of death or great bodily injury, and
2. a reasonable person would have known that these acts would create such a risk.¹

It is important to note criminal negligence involves:

• knowledge of a danger, and
• more than a mistake or excusable accident.

1.1. More than a mistake or accident

Criminal negligence requires more than:

• a mistake in judgment,
• inattention, or
• simple carelessness.²

It only pertains to conduct that is:

1. outrageous and reckless, and
2. shows a clear departure from how an ordinary person would act in a similar scenario.³

1.2 Knowledge of a danger

To have criminal negligence, a person must know that an act created a risk to a victim.⁴

In particular, a defendant must know that either:

1. his/her acts created a risk for the victim, or
2. a reasonable person in a similar situation would have appreciated or foreseen this risk.⁵

2. What are some examples?

The following are some examples of a person acting with criminal negligence:

• swiping at someone’s hand while he/she is holding a loaded gun,⁶
• driving a car at top speeds while texting,
• firing a weapon in the air during a celebration at a park, and
• leaving a child in an unattended car in hot weather.

A textbook example of criminal negligence is the crime of involuntary manslaughter. A person commits this offense when:

1. he/she kills someone unintentionally, and
2. does so via criminal negligence or in the commission of a crime that is not a felony.

Example: During a fight with her husband, a woman retrieves her loaded gun and waves it at him to threaten him. The gun accidentally fires, killing the husband. Here, the woman is guilty of involuntary manslaughter. She killed her husband unintentionally and she acted with criminal negligence. She engaged in a reckless act that created a risk of death to her husband.

3. How does criminal negligence differ from civil negligence?

Criminal negligence vs civil negligence – What’s the difference? Criminal negligence is a crime that can send a person to jail. Civil negligence is a tort whereby the wrongdoer may have to pay financial compensation to the victim.

Civil negligence refers to conduct that falls below an appropriate level of care. If proven, an injured plaintiff can recover damages from the defendant for any injuries the defendant caused.

This type of negligence involves conduct that is below the conduct of how a reasonable person would act in a similar situation.⁷ Unlike criminal negligence, civil negligence is:

1. just short of reasonableness, and
2. is not a drastic departure from how a reasonable person would act.

The two conducts also differ in terms of:

• the level of proof involved, and
• the punishment for each.

3.1. Level of proof

Again, civil negligence gets proven in a civil case involving personal injury. Criminal negligence is proven in criminal cases.

In the civil context, a plaintiff must prove negligence by a “preponderance of the evidence.” This means a showing that it was more likely than not that the defendant acted negligently.

In a criminal case, a prosecutor must prove that the defendant is guilty “beyond a reasonable doubt.” This is a higher standard than used in a civil trial. It means that:

1. the defendant acted with criminal negligence, and
2. there can be no other explanation besides that fact.

3.2. Punishment

If a defendant is found to have acted with negligence in a civil case, then he/she has to pay damages. This is money paid to the plaintiff to compensate that party for any injuries.

In criminal matters, parties guilty of negligence can go to county jail. Or, they can be punished with:

• fines,
• probation, or
• community service.

4. How is criminal negligence related to intent?

Criminal negligence acts as a substitute for intent.

To be guilty of most crimes, a defendant must act with a “mens rea” or “criminal intent.” Normally, this means a prosecutor has to prove that a defendant acted:

• intentionally,
• deliberately, or
• with some other state of mind.

For example, with murder, a prosecutor must prove that the accused:

1. killed someone, and
2. did so with the mental state of malice aforethought.

With regards to burglary, the state has to show that a defendant:

1. entered a structure or building, and
2. did so with the intent to commit a theft or felony inside.

Criminal negligence acts as a substitute for intent under certain circumstances. It acts as a substitute because it:

• imposes guilt on a person, and
• does so when he/she commits an act with a strong risk of committing an injury.

As one court noted, this negligence is an “implied intent.”⁸ The intent is implied, or substituted, because of a willingness to inflict injury.⁹

5. What are the best defense strategies?

Defense lawyers draw on several legal strategies to challenge allegations that an accused acted with criminal negligence. These include showing that:

1. the accused committed an act as the result of a mistake or accident.
2. the defendant did not know, or should not have known, that his/her act created a risk of harm.
3. The accused exercised reasonable care.

5.1. Mistake or accident

Recall that criminal negligence requires more than a mistake in judgment or carelessness. This means it is always a defense in these cases for a defendant to show that:

1. his/her conduct was not outrageous or reckless, but
2. was the result of a mistake in judgment or accident.

5.2. No knowledge

Also recall that a finding of criminal negligence requires that:

1. the defendant knew that his/her acts created a risk to the victim, or
2. the accused should have known of this risk.

A defense strategy, then, is to show that the defendant did not have this knowledge.

Example: Carol goes to a late-night movie, leaving her two children (aged 5 and 8) asleep in their beds, home alone. While she is gone, a fire spreads throughout her house. A neighbor is able to save one child, but the other is killed.

Here, Carol may have exercised poor judgement in leaving her children home alone. But her actions do not rise to the level of criminal negligence. Carol did not know that her actions created a risk of harm to her children. Further, there is no way a reasonable person, in Carol’s shoes, would have known that going to a movie created a risk of deadly harm to the children. Without that knowledge, there can be no criminal negligence.

5.3. Reasonable care

An accused is not criminally negligent if he/she used reasonable care to avoid harming a victim. This reasonableness does not constitute any sort of reckless behavior. Thus, an assertion of reasonable care always acts as a defense.

6. What is the law in California?

California criminal law uses the concept of criminal negligence. Under this law, a prosecutor must prove the following to show it existed:

1. the defendant acted so recklessly that he/she created a risk of death or injury,
2. the act demonstrated a disregard for or an indifference to human life, and
3. a reasonable person in a similar situation would have known that the act could result in harm.¹⁰

Further, State law focuses only on the defendant’s actions and not on an act’s consequences. This means that:

1. an accused can act criminally negligent even if no one is hurt, and provided that
2. the defendant’s behavior was such that it was likely it would cause someone to get hurt.¹¹

In addition, even if someone gets hurt or killed:

• criminal negligence only exists if the act itself that caused the injury was reckless, and
• it involved a high degree of danger.¹²

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