Negligence Versus Unlawful Act

Negligence Versus Unlawful Act

Where a jurisdiction retains the unlawful-act doctrine, one unintended death can be charged as involuntary manslaughter on either of two grounds, and the grounds differ in what the prosecution must prove about the defendant's fault.¹ The first is the criminal-negligence route, under which the killing results from conduct that grossly deviates from the care a reasonable person would take and creates a high risk of death or serious bodily harm.² The word gross carries the weight. Civil negligence, the ordinary carelessness that makes a careless driver pay damages, does not suffice, because criminal negligence demands a substantially greater departure from reasonable conduct.³ The reason is that homicide liability is meant to attach to a blameworthy attitude toward the risk of death, and a lapse of the ordinary kind shows no such attitude. Courts have emphatically rejected the idea that tortious negligence alone makes a person guilty of manslaughter.⁴

The criminal-negligence standard occupies the middle rung of a ladder of risk. Civil negligence sits below it. Depraved-heart murder sits above it, because that offense requires reckless indifference to an unjustifiably high risk to human life and counts as malice, while involuntary manslaughter involves a lesser, though still criminally culpable, level of risk.⁵ Two mental states can occupy the middle rung. A reckless defendant is aware of a substantial and unjustifiable risk and chooses to take it, whereas a grossly negligent defendant ought to have been aware of the risk, and whether the defendant actually was aware is immaterial under that standard.⁶ The ladder shows why the negligence route can be hard for a prosecutor on thin facts: the evidence must place the defendant high enough on it, and an ordinarily careless driver or an unaware shooter may land below.

The unlawful-act route does not ask the prosecutor to climb the ladder at all. The prosecution need show only that the defendant's unlawful act caused the death, and proof of criminal negligence becomes unnecessary.⁷ The difference is sharpest in a jurisdiction that makes the doctrine turn on foreseeability: negligence manslaughter requires a high degree of risk of death or serious injury, and perhaps awareness of it, while unlawful-act manslaughter requires only an unreasonable risk that the defendant need not have realized.⁸ The two routes diverge because they rest on different kinds of fault. The negligence route ties liability to the defendant's attitude toward the risk of death, and the unlawful-act route ties it to the choice to break the law. Since those two kinds of fault do not coincide, a prosecutor can reach a defendant who was not grossly careless but was violating a criminal prohibition. The premise that wrongdoing at the moment of the killing makes manslaughter liability easier to justify has been called illogical, and that is one reason courts have hedged the doctrine with limits.⁹

A fleeing thief shows both routes available at once. After committing petty larceny, the thief runs across a busy highway, the owner of the stolen goods gives chase, and a passing car strikes and kills the pursuer. The prosecution can argue criminal negligence, because flight across a highway created a foreseeable risk of death, and in the alternative can argue misdemeanor manslaughter, because the larceny was a misdemeanor that is wrong in itself and, on this theory, caused the death. If the jury doubts that the flight was grossly negligent, the second theory still stands, which is the practical value of pleading both. Now remove the unlawful act. A hunter who is shooting lawfully fires toward an area she does not realize has houses in range, and a bullet kills a resident. She never perceived the risk, so she was not reckless, and whether she was grossly negligent depends on how far her failure to check falls below what a careful hunter would do.¹⁰ Nothing in the facts supplies an unlawful act to take the place of that showing. Add one fact, that she was shooting out of season, and a candidate predicate appears, although the prosecution would then face the limits that later sections develop on regulatory offenses and on the causal link between the violation and the death.

An exam problem built on a spiked drink shows how to order an answer around the two theories. Two defendants slip a substance into a woman's drink and she dies; one knew the substance was a drug and had some understanding of its potency, and the other did not know what he was distributing. The model analysis begins at the top of the ladder and concludes that neither defendant probably showed the depraved-heart indifference that makes a killing murder. It then asks about manslaughter by negligence: the first defendant might be reckless or grossly negligent depending on what he understood about the drug's potency, while the second, who did not know what the drug was, probably is not even grossly negligent. Only after that does the answer turn to the second theory. Spiking a drink is a battery, because it causes a nonconsenting person to be touched by a drug, and that battery is likely a misdemeanor, so where misdemeanor manslaughter applies both defendants might be guilty of manslaughter, including the one whose negligence was thin.¹¹

Students lose points on this material by treating a failed negligence theory as the end of the manslaughter analysis. In a jurisdiction that retains the unlawful-act doctrine, a thin showing of carelessness leaves the second route open, since the prosecution then needs only an unlawful act that caused the death.¹² The reverse also holds: where the doctrine has been abolished, the negligence theory is the only path to involuntary manslaughter, and the analysis has to stand or fall on the defendant's gross deviation from reasonable care.