Awareness of the Risk

Awareness of the Risk

The previous section measured how far a defendant's conduct fell below reasonable care and how dangerous that conduct was. It left open a separate question about the defendant's own mind: must the defendant have perceived the danger the conduct created? Jurisdictions answer that question in two ways, and the source of the disagreement is visible in the common-law definition itself, which describes the negligence branch of involuntary manslaughter as a killing caused by criminal negligence or, in some formulations, by recklessness.¹ The two words differ on one point. A negligent actor is unaware of the risk but should have been aware of it, because a reasonable person in the same circumstances would have perceived it, while a reckless actor is aware of a substantial and unjustifiable risk and consciously disregards it.² The Utah Supreme Court drew the same line in State v. Howard, describing the difference between the two mental states as whether the defendant was aware of the risk and ran it anyway or was unaware of a risk of which the defendant ought to have been aware.³

The objective approach, which courts usually label gross negligence, criminal negligence, or culpable negligence, asks whether the defendant should have been aware of the risk, and the defendant's actual awareness is immaterial.⁴ The subjective approach, which courts usually label reckless or wanton, requires that the defendant personally appreciated the risk and chose to take it anyway.⁵ The Model Penal Code adopts the subjective approach for manslaughter. It requires recklessness, defined as conscious disregard of a substantial and unjustifiable risk, and it assigns inadvertent risk creation to a separate, lesser offense of negligent homicide.⁶ Outside the Code, courts are divided over whether a defendant who was unaware of the risk may be convicted of manslaughter at all.⁷ Because an examiner can fix the governing test in the question or leave it open, the first task is to recognize that the choice exists.

The split has consequences in only one kind of case. A defendant who actually perceived a high risk of death and ran it is liable under either test, and that is true even when a reasonable person would not have perceived the risk, because the defendant's own perception supplies the culpability.⁸ The tests part company when the defendant failed to perceive a danger that a reasonable person would have seen, as can happen with a defendant who is absent-minded or intoxicated.⁹ The objective test treats that failure as the fault itself, and the subjective test treats it as the absence of the fault. The Adams facts from the opening of this chapter show how the choice operates.

The two approaches rest on different views of what justifies punishing an unintended death. The objective view looks to the danger the defendant created: a person whose conduct produces a homicidal risk that comes true is dangerous whether or not the risk was noticed, and a subjective test invites a defendant to claim falsely that the risk went unnoticed.¹⁰ The subjective view looks to blameworthiness: one who recognizes a risk to life and decides to run it is morally worse than one who merely failed to notice it.¹¹ The next two sections develop each side's reasoning and show how courts apply it.

Terminology is an unreliable guide to which test a court applies, because courts do not use the labels uniformly. In Commonwealth v. Welansky, a 1944 Massachusetts decision, the court held that the test for manslaughter was wanton or reckless conduct and not negligence or gross negligence, and it went so far as to say that Massachusetts common law has no such thing as criminal negligence.¹² Yet the same court described wanton or reckless conduct as both subjective and objective, and it added that a defendant so heedless as to miss a grave danger cannot escape liability if an ordinary person in the same circumstances would have realized it.¹³ Subjective vocabulary there carries a test that also looks at what an ordinary person would have perceived. Courts blur the labels in another way as well, since many jurisdictions treat recklessness and gross negligence as equal or alternative bases for involuntary manslaughter, so that one statute may use both words without choosing between them.¹⁴ Students lose this issue when they treat the label a court uses as proof of the test it applies, and the safer habit is to ask what the court actually requires the prosecution to prove about the defendant's perception.

The last step matters most when the stem is silent. An answer that quietly picks one standard forfeits the awareness issue, while an answer that states the split and runs both standards earns credit whichever test the grader had in mind. The two sections that follow supply the content of steps 3 and 4.

Objective Test: Gross Negligence

The objective approach lets a defendant be convicted of involuntary manslaughter without ever having noticed the danger that killed someone. It asks what a reasonable person in the defendant's position would have perceived, and whether the defendant's failure to perceive it was a gross departure from the care that person would have taken. A grossly negligent defendant ought to have been aware of a substantial and unjustifiable risk, and whether the defendant was in fact aware is immaterial.¹⁷ This follows from the general line between the two fault terms, because the negligent actor is the one who does not perceive a risk that a reasonable person facing the same circumstances would have perceived.¹⁸ Wyoming's definition of criminal negligence, which that state uses for a separate offense of criminally negligent homicide rather than for manslaughter, packs the whole standard into one sentence: through a gross deviation from the care a reasonable person would exercise, the defendant fails to perceive a substantial and unjustifiable risk that the harm will occur, and the harm results.¹⁹ Jurisdictions that follow the common-law objective approach treat this fault as involuntary manslaughter, while the Model Penal Code sends the same fault to a lesser negligent homicide offense.²⁰

Two questions therefore do the work. The first asks whether a reasonable person would have perceived the risk, which fixes what the defendant should have known. The second asks whether failing to perceive it fell so far below reasonable care that criminal punishment is justified, and this question keeps the test from collapsing into civil liability. The second question exists because compensation and punishment call for different showings: a careless person who injures an innocent victim ought to pay for the loss, but imposing criminal punishment requires something extra beyond ordinary negligence.²¹ Courts attach several labels to that extra margin, including criminal negligence, gross negligence, and culpable negligence, and the only certainty the labels share is that each demands more than a civil case would.²² In most states the danger the defendant overlooked must also be a very substantial one, a danger of serious bodily harm or death and not just of bodily harm.

The case for dropping awareness as an element rests on two reasons. The functional reason is that a person whose conduct creates a homicidal risk that then materializes is dangerous to others whether or not the person noticed the risk, and the victim is equally dead. The incentive reason is subtler. Awareness is a fact inside the defendant's own head, so a test that requires it makes the defendant's account of that state of mind central, and the account comes from the one witness with every reason to say the risk never occurred to the defendant. Genuine cases of a person engaging in such conduct without appreciating the risk are unusual, so supporters of the objective test conclude that the small gain in precision from a subjective inquiry is outweighed by the temptation to claim a lack of foresight.²³ The competing view, that a person who consciously runs a risk is morally worse than one who misses it, is the subject of the next section.

The reasonable person at the center of this test is a benchmark, and courts differ over how much of the defendant's own makeup goes into it. In many instances courts give the reasonable person at least some of the defendant's characteristics.²⁴ In People v. Strong, the defendant stabbed the victim with a hatchet and three knives while sincerely believing, from prior experience and religious beliefs, that he could do so without harming the victim, and the majority held that those characteristics belonged in the jury's reasonable-person standard, so that he might be liable only for criminally negligent homicide rather than second-degree murder.²⁵ State v. Williams went the other way: the court applied a Washington statute that appeared to use a tort negligence standard and refused to consider the defendant's poor education, ignorance that a child's tooth infection could lead to gangrene and death, cultural beliefs, and fear of losing the child.²⁶ Strong personalized the benchmark for criminal negligence, while Williams measured a statute that seemed to use tort negligence and left the characteristics out, and the legislature soon changed the statute to require criminal negligence without deciding whether those characteristics would count. The more of the defendant's traits the benchmark absorbs, the narrower the practical gap between the objective and subjective tests becomes.

The line between ordinary and gross negligence does not always hold. Occasionally a court lets ordinary negligence suffice, and more often courts do so in limited circumstances, such as the negligent handling of an inherently dangerous instrumentality, with a vicious dog as the standard illustration.²⁷ The rationale is that ordinary negligence in handling something so dangerous is tantamount to gross negligence.²⁸ The idea follows from how grossness is measured: the care a reasonable person takes rises with the lethality of what is being handled, so a lapse that would be minor around a harmless object can be a large departure around a dangerous one. Firearms receive similar treatment in practice, since courts are quicker to find manslaughter when the accident involves a gun. Students go wrong when they read this as general permission to convict on ordinary carelessness, because objective does not mean civil, and outside the dangerous-instrumentality cases the gross-deviation requirement still stands.

In both situations what the defendant privately thought is beside the point. The fact that moved the answer is the precaution: Adams took none against a serious risk to a helpless person, while the homeowner took the step a reasonable person would take.

Subjective Test: Recklessness

The subjective approach reverses the question asked in the preceding section. Instead of asking what a reasonable person in the defendant's position would have noticed, it asks what the defendant actually noticed. Jurisdictions that apply it usually describe the required mental state as reckless or wanton, and whatever word a court uses, the feature that makes the test subjective is that the defendant must have personally appreciated a risk and chosen to take it anyway.³⁰ The Model Penal Code adopts this standard for manslaughter. Section 2.02(2)(c) defines recklessness as conscious disregard of a substantial and unjustifiable risk, one of such a nature and degree that, given the purpose of the actor's conduct and the circumstances the actor knew, disregarding it is a gross deviation from what a law-abiding person would do in the actor's situation.³¹ The common-law definition already leaves room for this standard, because it reaches a killing caused by criminal negligence or, in some formulations, by recklessness.³²

The definition has two parts, and each does separate work. The awareness requirement supplies the blame. A person who thinks that someone may die but runs the risk anyway is morally worse than one who never notices the danger, and the law ranks recklessness above negligence and below intentional wrongdoing for that reason.³³ The risk requirement screens out conduct that is dangerous but defensible. Almost every activity carries some chance of killing someone, so liability needs a risk that is substantial, unjustifiable, and large enough that taking it is a gross departure from lawful conduct, and the purpose of the conduct enters the measurement. The same speed that is a gross departure for a driver out for a pleasure spin may not be one for a driver rushing a critically ill family member to a hospital, which is how the word unjustifiable lets a defendant's good reason count.

Demanding awareness also solves a grading problem that the older common-law formula leaves open. When every unintentional homicide is classed as involuntary manslaughter without separating conscious risk-taking from inadvertence, the legislature faces two poor choices. It can grade the offense like voluntary manslaughter, which assigns disproportionately severe sanctions to merely careless conduct, or it can reduce the penalty, which lets serious wrongdoers shelter under a mild label.³⁴ The Model Penal Code drafters resolved the problem by confining manslaughter to conscious disregard of a perceived homicidal risk and sending negligent homicide to a separate provision with lesser sanctions.³⁵

Because recklessness and criminal negligence both require a substantial and unjustifiable risk and a gross deviation from proper conduct, what separates them is a single variable, which is awareness. The reckless actor engages in the risk, is aware of it, and consciously disregards it, while the negligent actor is unaware of the risk though a reasonable person facing the same circumstances would have perceived it.³⁶ Courts draw the same line when they separate manslaughter from criminally negligent homicide: the defendant either was aware of the risk and consciously disregarded it, or was unaware but ought to have been aware.³⁷ The risk needed for reckless manslaughter is a substantial risk of death, which is a lower level than the grave risk that marks depraved-heart murder, a boundary that a later section takes up.³⁸ The word reckless is an unreliable signal on its own, since English manslaughter law long used it to mean a high degree of carelessness and adopted the actual-awareness meaning only in the late 1950s.³⁹

A teaching illustration about Stan, an associate who has worked 36 straight hours, shows the standard satisfied. Stan knows he is exhausted, has dozed off at his desk several times, and knows that driving while sleep-deprived is dangerous, yet he drives home, drifts into the opposite lane, and kills Lisa.⁴⁰ Each of those facts is evidence of awareness, and awareness is what makes the case reckless, since recklessness here means acting with knowledge that one's conduct poses a substantial and unjustified risk of death or grievous bodily harm.⁴¹

Awareness is usually proved by inference rather than by admission, and that answers the worry that a subjective test invites a defendant to claim the risk never crossed the defendant's mind. A claim of that kind is no more likely to be believed than any other self-serving denial, and a fact-finder may reject it in light of the circumstances. In Murray v. State, a Wyoming appeal, the defendant testified that he did not realize he was doing anything dangerous because he aimed away from the victim. The court pointed to his service as an army rifleman rated a sharpshooter, his experience as an avid hunter, the warnings from the army and his father never to point a gun at anyone, and his own admission that discharging a gun is terribly dangerous. It held that a reasonable jury could infer that he was aware of, and consciously disregarded, the risk of a ricocheting bullet when he fired several shots into the dirt near the victim's feet.⁴² The court also declined to treat an Illinois decision on a single warning shot fired at the ground to scare off an intruder as controlling, because Murray involved several shots aimed at the feet of a known friend.⁴³

The George problem supplies a pole drawn from the inventory. George, angry at a delivery man he blames for smashing a collector plate, puts scissors in his briefcase and ducks into an apartment to escape the rain. When the delivery man, whose apartment it is, walks in, George panics and throws the briefcase without looking at him, and the man dies.⁴⁴ The sourced analysis concludes that George's mental state in making the throw was neither knowing nor purposeful and not even reckless, because he neither looked nor aimed and so never perceived a substantial risk and then disregarded it. At most he failed to perceive the risk.⁴⁵ That a thrown briefcase can kill does not change the result, because the subjective test asks only what George perceived. Students lose this issue when they treat an obvious risk as a perceived risk, since a risk that a reasonable person would have seen proves negligence unless other evidence shows that the defendant saw it too.⁴⁶ Jurisdictions that define manslaughter subjectively tend to have a separate, lesser negligent-homicide offense, so the recklessness theory fails against George while the question of other routes to liability stays open for later in this chapter.⁴⁷