Criminal Recklessness or Criminal Negligence?

Mens rea is a critical element of most crimes. In Texas, the four key forms of mens rea are intentional conduct, knowing conduct, reckless conduct and criminal negligence. The first two forms – intentional and knowing conduct – are generally obvious from the nature of the crime itself. If I walk up to you with a gun, put it to your head and pull the trigger, it should be obvious that I “intended” to do so. Similarly, if I point a gun into a crowd of people and pull the trigger, no one would argue that I didn’t “know” that someone would likely be injured or even killed.

Where we run into trouble is when the mental state of the actor is not obvious, but must be deduced by examining their actions in context. If someone is driving wildly on the road, flipping lanes at high speed, surely all of us would say he was acting “recklessly”, in both the normal use of that word as well as the legal definition.

But what about when the “reckless” conduct is not so obvious? Where exactly do we draw the lines between “recklessness” and “criminal negligence”?

The following is an excerpt from a motion for a new trial I am filing tomorrow that discusses how the Texas Court of Criminal Appeals has addressed this issue. At the heart of this discussion is the case Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007). In Williams, a mother left her children in the care of her boyfriend while she went grocery shopping. Being poor, Williams could not afford electricity, and her children were afraid of the dark, so she left a candle burning in their room. The candle ignited a curtain, a raging fire broke out, and the children were killed. Williams was convicted of the criminal offense of reckless injury to a child. The Court overturned this conviction, and in the process established the existing baseline for proving whether behavior is “reckless”, “negligent”, or simply tragic.

The fundamental problem manifested in the State’s failure to properly designate which conduct it construed as “reckless”, and compounded by the State’s assertion during rebuttal that Defendant’s failure to instantly exit her vehicle constituted “recklessness” under the law, is that such actions served to confuse the issues of “recklessness”, “criminal negligence” and simple “negligence.” The Texas Supreme Court addressed the issue of awareness of risk in the case Transportation Ins. Co. v. Moriel, involving the imposition of punitive damages in the context of bad faith insurance litigation. “Determining whether an act or omission involves extreme risk or peril requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. In every negligence or gross negligence case, some injury has allegedly occurred. However, the magnitude of the injury may be entirely disproportionate to the riskiness of the behavior. For example, inadvertently dropping a wooden board into the metal hold of a ship may constitute negligence, but cannot be gross negligence. This is so even though the board, upon landing, triggers a Rube Goldberg chain reaction, eventually causing the whole ship to explode.  See In re Polemis, [1921] 3 K.B. 560. If somebody has suffered grave injury, it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger. In such a case, punitive damages are not appropriate. In summary, the definition of gross negligence includes two elements: (1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994).

Addressing the distinctions between recklessness, criminal negligence and simple negligence, the Texas Court of Criminal Appeals cited Moriel extensively in the case Williams v. State, involving whether the Defendant was reckless in leaving her children in the care of another while she went to the store. In Williams, a candle that was left burning in the children’s room started a fire that resulted in the death of the children. The Williams court held that the Defendant was not guilty of recklessness, explaining:

Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state. With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard  of care exercised by ordinary people. Tex. Penal Code § 6.03(d). Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness—the actual disregard of a known substantial and unjustifiable risk.

At common law, “the word ‘reckless’ or ‘recklessly’ was commonly used in expressing the concept of criminal negligence.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law 849 (3rd ed.1982). However, Professor Perkins notes that, in most modern penal codes, the two concepts have been distinguished and separated: “recklessness” and “criminal negligence” represent different mens rea concepts —– [but they] have one component in common. Each requires conduct which represents a gross failure to measure up to the reasonable-person standard of care. Assuming such conduct, if the actor was aware of the risk he was creating, and consciously disregarded that risk, however much he may have hoped that no harm would result, he was acting recklessly. Id. at 850. Thus, “[a]t the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct[.]” Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim.App.1975). As has often been noted, “[m]ere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be,” do not suffice to constitute either culpable negligence or criminal recklessness. People v. Carlson, 176 Misc. 230, 26 N.Y.S.2d 1003, 1005 (N.Y. County Ct.1941). Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Cannon v. State, 91 Fla. 214, 107 So. 360, 363 (Fla. 1926).  Such a “devil may care” or “not giving a damn” attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen. Tex. Penal Code § 6.03(d). “Those who are subjectively aware of a significant danger to life and choose, without justification, to engage in actions (or in some cases inactions) that threaten to bring about that danger have made a calculated decision to gamble with other people’s lives.” James Gobert, Searching for Coherence in the Law of Involuntary Manslaughter: The English Experience, 6 Crim. L.F. 435, 454 (1995). This combination of an awareness of the magnitude of the risk and the conscious disregard for consequences is crucial. “It is callous disregard of risk, and not awareness vel non of risk, however, which is critical.” Gobert, at 461. And, of course, determining whether an act or omission involves a substantial and unjustifiable risk “requires an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Transportation Ins. Co. v. Model, 879 S.W.2d 10, 23 (Tex. 1994).

Whether a defendant’s conduct involves “an extreme degree of risk” must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another. People v. Sikes, 328 Ill. 64, 159 N.E. 293, 297 (Ill.1927).

In addressing the sufficiency of evidence to prove criminal recklessness, it is not enough to provide the jury with a set of legally correct definitions and then simply turn them loose and accept whatever they decide. Instead, there are “intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability[.]” Pagotto v. State, 127 Md.App. 271, 732 A.2d 920, 924-25 (1999) The State cannot be permitted to submit its case to the jury unless it has offered a prima facie case of a defendant’s actual, subjective “disregard of the risk of a resulting [injury] which … rise[s] to the level of a ‘gross deviation’ from an ordinary standard of conduct.” Crume v. State, 658 S.W.2d 607, 609 (Tex. Crim.App. 1983). The incremental risk and mens rea that may transform mere civil negligence into criminal negligence and then possibly into criminal recklessness are, although elusive, substantive elements with unique burdens of production that must be satisfied as a matter of law.

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007)

Applying this reasoning to the facts of the case, the Williams court found:

[E]ven though appellant’s act of leaving the girls with a lit candle in the room under the care of Bowden may have, in a “Rube Goldberg” chain of events, ultimately led to their demise, “it may nevertheless be the case that the behavior which caused it, viewed prospectively and without the benefit of hindsight, created no great danger.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Here, as in Moriel, the task in evaluating legal sufficiency of the evidence to support a finding of “gross negligence” for civil lawsuit purposes (or “recklessness” for criminal liability) is to “determine whether the proffered evidence as a whole rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id.at 25.Appellant cannot be liable for a reckless injury to her children unless she was actually aware, at the time she left, of a genuine and unjustifiable likelihood of serious harm to her children from leaving a lit candle in the bedroom while her children were under Bowden’s care. Id. Here, as in Moriel, the evidence does not support (1) the inference that appellant had any subjective awareness that her children would probably suffer serious bodily injury because of the lit candle in the bedroom while under Bowden’s care, or (2) the inference that appellant’s action of leaving the children under Bowden’s care with the lit candle in the bedroom created a risk of serious harm to those children. <em>Id.</em> Appellant’s mother’s warning was too general and unfocused to suffice to raise a jury issue on either of these prongs. Here, as in Jones, Riggs, Owens, and McLaughlin, the warnings given were too general and unfocused to establish that (1) the mother was subjectively aware of the risk of a deadly accident, and (2) her actions created a severe risk that such an accident would occur. State v. Jones, 151 S.W.3d 494, 497-501 (Tenn. 2004), State v. Riggs, 2 S.W.3d 867, 868, 872, 875 (Mo.Ct.App. 1999), State v. Owens, 820 S.W.2d 757, 760-61 (Tenn.Crim.App.1991) , State v. McLaughlin, 42 Or.App. 215, 600 P.2d 474, 475-77 (1979).

As the court of appeals noted in this case, criminal prosecutions for tragic accidents are inherently troubling. Williams, 190 S.W.3d at 717.  They are also rare.

Although we agree that “the decision to file criminal charge[s] is justifiable in cases involving gross negligence because of its deterrent and expressive effects[,]”the specific acts alleged and proven by the State in this case do not support a finding of such gross negligence amounting to recklessness on appellant’s part. Collins, 100 Nw. U.L.Rev. at 811. In the vast majority of cases, the issue of whether the evidence supports a finding of culpable recklessness is a question for the jury. But on occasion it becomes a question of law. If the acts themselves do not pose a “substantial or unjustifiable risk” that the harm will occur, or if that “extreme degree of risk” was not actually foreseen by the defendant, or if the defendant’s conduct was clearly not sufficient, by itself, to result in the injury but the conduct of another was clearly sufficient, then the evidence is not legally sufficient to submit the case to a jury or to sustain a conviction. We do not sit as a “thirteenth juror” and disagree with the jury’s finding that the appellant did the very acts that the State alleged she committed. The jury followed the law as it was given to them. But the State’s allegations of the purportedly reckless acts committed by appellant are simply not acts that, viewed objectively under these particular circumstances, involved “an extreme degree of risk, considering the probability and magnitude of the potential harm to others.” Moriel at 25. Appellant may have been a “bad” mother, unworthy of her mother, her children, and her boyfriend, but she did not commit the crime of reckless injury to a child merely because she took her children from a house with utilities to one without utilities, and left them, under the care of a responsible adult, with a lit candle in the bedroom.

In this case, the evidence of a criminally reckless mens rea and causation were legally insufficient to sustain appellant’s conviction. We thus reverse the court of appeals and order an acquittal.

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007)