Criminal Negligence – Definition, Application & Defenses

Criminal negligence is conduct in which you ignore a known or obvious risk or disregard the life and safety of others. An example is a parent leaving a loaded firearm within reach of a small child.

Federal and state courts describe criminal negligence as a form of recklessness, where you act significantly differently than an ordinary person under similar circumstances. Criminal negligence is an element in many crimes, such as involuntary manslaughter.

In this article, our criminal defense attorneys discuss the following topics re. criminal negligence:

• 1. Elements
• 2. Examples
• 3. Civil Negligence
• 4. Defenses
• 5. California Law
• Additional Reading

1. Elements

For you to be convicted of any crime requiring criminal negligence, prosecutors have to prove beyond a reasonable doubt the following two elements:

1. You 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

Criminal negligence requires more than:

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

Instead, criminal negligence only pertains to conduct that is outrageous and reckless and shows a clear departure from how an ordinary person would act in a similar scenario.³

Furthermore, you must have been aware of your recklessness.⁴ In particular, you must know that either:

1. your 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. Examples

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

• swiping at someone’s hand while they are 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, or
• 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 they kill someone unintentionally with 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 because she acted with criminal negligence: She engaged in a reckless act that created a risk of death to her husband.

3. Civil Negligence

Whereas criminal negligence is a crime, civil negligence is grounds for a civil lawsuit.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.⁸

As a crime, criminal negligence must be proven beyond a reasonable doubt. Meanwhile, anyone suing you for civil negligence only has to prove it by a preponderance of the evidence – a much lower standard of proof.

Finally, getting convicted of criminal negligence potentially carries jail or prison time. Though if you are found liable for civil negligence in a lawsuit, the judge may not impose incarceration; instead, you may be ordered to pay damages to compensate the victim for their losses.

4. Defenses

Here at Shouse Law Group, we have represented literally thousands of people facing charges where criminal negligence was an element. In our experience, the following three defenses have proven very effective at raising a reasonable doubt with prosecutors, judges, and juries.

1) You Made a Mistake or Had an Accident

It is always a defense to criminal negligence that your conduct was not outrageous or reckless but was instead a mistake in judgment or accident. If we can show that any reasonable person in your situation may have acted the same way, the charge should be dropped.

2) You Did Not Know Your Actions Created a Risk of Harm

A finding of criminal negligence requires that you knew – or should have known – that your actions created a risk to the victim. A defense strategy, then, is to show that you did not have this knowledge.

Example: Carol goes to a late-night movie, leaving her eleven-year-old asleep in bed. While she is gone, a fire started by an arsonist spreads through her home, killing the child. Here, Carol did not know – nor reasonably could have known – that leaving her child alone for a few hours would result in her dying. Therefore, Carole may have acted with poor judgment but not criminal negligence.

3) You Exercised Reasonable Care

You are not criminally negligent if you used reasonable care to avoid harming the victim. In these cases, we rely on eyewitness accounts and video surveillance footage to show that everything you did fell without the bounds of reasonableness.

5. California Law

For you to be convicted of a California crime requiring criminal negligence, prosecutors must prove the following three elements:

1. You acted so recklessly that you 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.⁹

Note that California law focuses on your actions, not on their consequences. This means that you can be criminally negligent even if no one was hurt as long as your behavior was likely to have caused harm.¹⁰

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Theory of Criminal Negligence: A Comparative Analysis – University of Pennsylvania Law Review.
• Virtue and Criminal Negligence – Buffalo Criminal Law Review.
• Rationale of Criminal Negligence – Kentucky Law Journal.
• Criminal Negligence and the Incompetent Doctor – Medical Law Review.
• A Case for Criminal Negligence – Law & Philosophy.

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