Criminal negligence is a far more serious form of negligence that usually involves the death of another individual. The defendant has failed to perceive the serious nature of his or her actions and instead precipitated a gross violation of the standard of care expected on an individual. Criminal negligence, as the name implies is not a civil lawsuit but rather a criminal matter as it violates the standard of care expected by the community. Therefore, all that is needed for a conviction is proof off the accused party’s culpability in the death of the other party and that the defendant was willfully unaware of his or her actions and its potential to hurt others. The two most common forms of criminal negligence are:
• Criminally negligent homicide
Criminally negligent homicide is willful and wanton conduct that causes the death of another.
• Negligent endangerment of a child
The neglect of a child is the failure to provide for the needs of the child and dereliction of one’s duties as a parent or caretaker. The implication in a child neglect case is that the parents lacked the mental, physical and emotional capacity to care for the child, rather than the willful abuse of the child.
Criminal negligence is prosecuted by law enforcement. When a party is found guilty of criminal negligence, a civil negligence suit may be also be pursued by a victim or their loved ones for monetary compensation. A civil suit may also be viable if a party is found not guilty of criminal negligence. Behind it all is a person that has been injured. The legal penalties will usually be based on the base crime to which the negligence is being attached. For instance, with “criminally negligent homicide”, the defendant may face penalties that are associated with most homicide claims, such as prison time for over one year. However, for a less serious base crime such an automobile violation, the punishments may only involve a criminal fine, or time in jail for less than one year. Defenses to criminal negligence typically involve some sort of negation of the defendant’s mind state, such as involuntary intoxication.
New York Penal Law § 15.05 Culpability; definitions of culpable mental states:
1. “Intentionally” A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.
2. “Knowingly” A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.
3. “Recklessly” A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.
4. “Criminal negligence” A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Criminal negligence is negligence which requires a greater degree of culpability than the civil standard of negligence. The civil standard of negligence is defined according to a failure to follow the standard of conduct of a reasonable person in the same situation as the defendant. To show criminal negligence, the state must prove beyond a reasonable doubt the mental state involved in criminal negligence. Proof of that mental state requires that the failure to perceive a substantial and unjustifiable risk that a result will occur must be a gross deviation from the standard of a reasonable person. Criminal negligence is conduct which is such a departure from what would be that of an ordinary prudent or careful person in the same circumstance as to be incompatible with a proper regard for human life or an indifference to consequences. Criminal negligence is negligence that is aggravated, culpable or gross.
The following is an example of one state's statute defining criminal negligence:
''A person acts with 'criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.''
• Civil Negligence
When a person is negligent or careless in a way that causes harm to someone else, the victim of the negligence can sue. This is called civil liability or civil negligence. There are lots of examples of negligence that can lead to a civil lawsuit. For example:
i. Property owners who let steps to their house crumble and leave a railing unrepaired could be considered negligent if they invites friends over to their house and their friends trip on the railing and steps and hurt themselves.
ii. A restaurant owner who mops the slippery floor and doesn't put up a "Wet Floor" sign could be considered negligent.
iii. A store that knows things get really out-of-control on Black Friday and who hosts a big sales event, encouraging a mob scene with no security, could be considered negligent.
iv. A doctor who operates on the wrong patient or on the wrong body part because he or she misreads the chart could be considered negligent.
v. A company that releases a dangerous drug without fully testing the medication and identifying all of the side effects can be considered negligent.
vi. A driver who runs a stop sign and who drives well over the legal speed limit can be considered negligent.
vii. A person who owns a dog that he knows is dangerous and who takes the dog to the park where the dog bites a small child could be considered negligent.
viii. An employer who fails to follow OSHA guidelines and other workplace safety rules can be considered negligent (although not necessarily subject to a lawsuit because of workers' compensation rules).
ix. A lawyer who doesn't really know how to prosecute a case but who takes the case anyway and doesn't adequately represent the client can be considered to be liable for professional negligence.
In each of these situations, a plaintiff could file a lawsuit and obtain compensation if he or she can prove the negligence was the direct cause of some type of harm they endured.
Negligent homicide charges are different from other homicide charges because they are used in such a wide variety of situations where one person causes the death of another. Negligent homicide charges also are used to prosecute companies that are aware of an unjustifiable risk, which caused the death of one or more people. Any corporation or individual charged with criminally negligent homicide should contact a defense attorney as soon as possible to develop effective strategies and ensure a viable defense.
A defendant charged with any degree of homicide should understand the nature and punishment range for negligent homicide because that knowledge could help develop the defensive strategy. A defendant charged with a higher degree of homicide, like murder or manslaughter, may want to seek a lesser-included charge of negligent homicide, which carries a lower range of punishment. For example, if the state alleges that a person intentionally ran over another person, a defendant may be able to produce enough evidence to show negligence, rather than intention, in causing the victim’s death. This defense tactic is used to make it appear that a defendant is accepting responsibility for the death, a move that can gain credibility with a jury, with the additional advantage of a much lower punishment range.
If a defendant were charged with negligent homicide, the best defense strategies would be to attack either causation or awareness of an unjustifiable risk. When attacking causation, a defendant is not denying that a person died, but is challenging why and how the victim died. For example, if the victim and defendant were playing with a gun when the victim was shot, and the victim received such serious injuries that calling for emergency medical care would not have made a difference, the defendant might be able to successfully challenge the cause of the victim’s death. A similar approach can be used for the risk element. If a defendant can show what others have done in similar situations, the defendant may be able to demonstrate that actions or omissions did not constitute an unreasonable risk. Regardless of which strategy is used, any defendant charged with negligent homicide needs to understand that evidence must be preserved. For instance, since many companies or agencies only keep video footage for 30 days, a defendant who knows such videotapes exist should take steps to ensure that any evidence or other information that could help with the defense is property preserved.
• VIRGO (2001)
August 2001: Cyprus-flagged Virgo was sailing through the high seas near the US shore when it is alleged to have collided with a fishing vessel which sank. Three fishermen drowned. The US charged the seafarers with involuntary manslaughter, and sought to have them extradited from Canada. During the following 18 months, the seafarers were prohibited from leaving Canada while the US, Russia (the state of the seafarers’ nationality), and Cyprus (the flag state) engaged in diplomatic discussions regarding the appropriate forum for criminal proceedings. The seafarers were eventually allowed to temporarily return to their native Russia while the appeal pertaining to extradition was pending. In 2006, the US abandoned its extradition efforts, allowing Russia to commence a criminal investigation and proceedings.