What is the Difference between Manslaughter and Criminally Negligent Homicide?
by: Ryan • May 19, 2011 • no comments
The short, strictly legal answer is this: manslaughter requires that the defendant act recklessly, negligent homicide requires that the defendant act negligently.
But in a recent Oregon Supreme Court case, Chief Justice DeMuniz highlighted - in a concurrence - the difficulty is drawing a clear line between the two.
Recklessness might seem to have a clearer boundary because it requires a subjective mental state ("aware of and consciously disregards a substantial and unjustifiable risk"). However, the line between that mental state and criminal negligence can be ephemeral in practice. Only rarely will a defendant admit to having consciously disregarded a risk of which he or she was aware. Absent that admission, a defendant's conscious disregard can only be determined by inference, in light of the nature of the act and the nature of the risk. When conscious disregard must be determined by inference, the line between what a defendant actually knew and what the defendant should have known can lose its clear boundaries. Morehouse v. Haynes, (May 19, 2011).
The chief justice further explained why this difficulty would encourage trial courts to punt:
The absence of a clear dividing line between negligence, criminal negligence, and recklessness can create a danger, however. The absence of a clear dividing line could encourage the following overhasty generalization: If "gross deviation" is a jury question, and if "conscious disregard" is a jury question, then any negligent act automatically creates a jury question as to whether a defendant's conduct was reckless.
He then emphasizes, in my reading, that as hard as it may be, trial judges must still do their jobs.
While juries must decide the mental state question on some fact patterns, that does not mean that only juries may decide that question in all cases. Despite the difficulties, courts have an important responsibility to draw the necessary distinctions in appropriate cases.
The purpose of this essay is to think about the kind of case where the trial court really should grant an MJOA on a Manslaughter arising out of a DUII, to draw the distinction that the chief justice has felt to compelled to remind them is still their responsibility.
In order for the defendant to be guilty of manslaughter in the second degree, "the criminal statutes at issue here essentially required defendant to have consciously disregarded a specific risk-the risk that death would occur." State v. Crosby, 342 Or 419, 432 (2007); ORS 161.085(9).
"'Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."
Oregon appellate courts have routinely recognized that - in the context of DUII accidents involving injury or death - the state has the burden to prove that the defendant had a "subjective awareness of the risks to which he exposed others." State v. Johnstone, 172 Or App 559, 567, 19 P3d 966 (2001). The state's burden in that regard has been repeatedly cited by the state to justify the admission of prior DUII convictions of the defendant, prior participation in DUII diversion programs and prior attendance at victim impact panels. So, in a defense-favorable case, there would be no victim impact panels in the defendant's history.
The state may simply argue that it merely had the burden to prove that Defendant had "knowledge of the risks involved in drinking and driving" on the date of the accident. See, e.g., State v. Hardman, 196 Or App 522, 530, 102 P3d 722 (2004) ("Both the fact of the accident itself and the [DUII] charge * * * permit a logical inference that defendant acted with a heightened awareness of the dangers of drinking and driving").
But the actual burden on the state is significantly higher than that. More than just a general awareness of the dangers of drinking and driving, Defendant must be aware of a "substantial risk" of death, in order to be convicted of manslaughter, and he must have consciously disregarded that risk. Crosby at 432.
The prosecutor will also argue that, if the BAC is "two to three times above the legal limit", the defendant's level of intoxication - in a DUII/Manslaughter case - can permit an inference that the defendant was aware of the substantial risk of death. The constitutional and factual problems with this argument - and the statutory prohibition against arguing the opposite - are discussed at length at this post. If you do not win the motion associated with that post, you should at least move to prevent the state from making that argument for the reasons given.
One additional point: the defendant would not have known he was "two or three times" the legal limit when he drove, unless he had his own personal intoxilyzer. One wonders, in a DUII/manslaughter case, where the DUII is not in dispute, if the defendant should plead or go bench on the DUII, and then move to prohibit any witness from saying the defendant was two or three times the legal limit. That is, the witness can still testify to the defendant's BAC. But "recklessly" involves an awareness of what the defendant "knew" and disregarded, and he would not have known his BAC. He would have known how he felt, what his motor skills were revealing, but not the math.
Then there is the question of the drive home, if the defendant causes an accident after leaving a bar. The Morehouse opinion makes it clear that the defendant's familiarity with the twists and turns of the drive are relevant, but equally relevant - and in the defendant's favor - would be a route that is not difficult, is quite familiar to the defendant, and in which - given the time of night - is nearly deserted.
The other big issue is whether any bad driving occurred before the accident. If there is none in evidence, then that too can be evidence of what the defendant did or did not know.
So, in short, if you've got a case where there is no bad driving before the accident, the road itself doesn't present any unusual challenges, the state is prohibited from using the BAC to its advantage if you aren't permitted from using the BAC to your advantage, the defendant hasn't previously attended a victim's impact class, then this may be exactly the kind of case when, to paraphrase the Chief Justice of the Oregon Supreme Court, the trial court should do its job and draw the kind of distinction that is required by the facts of the case.
Ryan Scott is a criminal defense lawyer in Portland. His firm's website is here.
