Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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Oprah and dozens of other celebrities have campaigned against texting while driving. If an individual drives through a school zone, doesn’t pay attention to their speed, and then ends up hitting a child and causing their death, they could be charged with criminally negligent homicide, instead of just texting while driving in a school zone.

Criminally negligent homicide can best be described as the “you should have known better” version of homicide. Instead of focusing on intentional conduct to kill, criminally negligent homicide addresses situations where a defendant is aware of a situation, should know it’s dangerous, but ignores a risk that results in a death of another—like texting while driving through a school zone full of children. Even though it is the lowest category of homicide offenses, criminally negligent homicide is still a felony charge with felony consequences.

Proving Criminally Negligent Homicide

Criminally negligent homicide requires the lowest mental state of all of the homicide offenses: criminal negligence. Criminal negligence is where a defendant should be aware of a substantial and unjustifiable risk, and ignores or fails to appreciate that risk. Unlike reckless conduct, the state is not required to prove that the defendant was aware of the risk, only that the circumstances were such that they ought to have been aware. Continuing with the texting example, considering all of the publicity by celebrities, changes in local ordinances, and more signs posted now designating “text free” zones, any defendant will have an uphill battle convincing a jury that they should not have been aware of the risks of texting while driving. The “ought to” standard is based on what a reasonable person in a similar situation would have perceived.

After production of evidence of the mental state, the next element of a criminally negligent homicide charge is proof of causation. This is where the state must show some link between the negligent actions of the defendant and the death of the other person. It’s not enough to say “texting while driving is bad,” but there must also be some evidence that the negligent act was the reason that a child died. Causation is a common basis for many defensive theories.

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Defensive Strategies

Even though criminally negligent homicide falls into the category of homicide or assaultive offenses, many of the same defenses are not usually applicable. For example, self-defense wouldn’t work because this a specific intent defense—meaning that the defendant actually intended to do something. A defendant cannot negate negligent intent with a specific intent. When statutory defenses, (like sudden passion, necessity, etc.) are available, they must be utilized in such a way that does not expose a defendant to a higher charge through a higher level of culpability.

A common defensive approach is to challenge causation. Sometimes, accidents and bad things just happen. If a car swerves to avoid hitting a dog, but hits another car, the result isn’t homicide, it’s just an accident. Because of improvements in 3-D modeling and computer generated scale drawings, proving causation, or the lack of, has developed into a more viable defensive strategy. Even if a defendant cannot avoid a conviction, they may be able to convince a jury to assess a lower punishment or probated sentence, if they feel the event was more accidental than negligent.

Possible Consequences of a Criminally Negligent Homicide Conviction

Even though it is the lowest category of offenses, criminally negligent homicide can involve a prison sentence. The range of punishment can include probation and up to five years in prison. Unlike capital murder, defendants charged with criminally negligent homicide tend to have better chances at obtaining probation, mainly because of the lower mental state. However, these defendants are also required to pay restitution, which can often involve thousands of dollars.

Prison time is usually any defendant’s first concern. However, the pen trip is only the first in possible consequences. If a defendant was insured, they may also face a collateral civil suit. Once a defendant pleads guilty to criminally negligent homicide, they can also be sued for regular and punitive damages for causing the death of another. Criminally negligent homicide is one of the few criminal offenses that frequently overlaps into personal injury law.

Because it is a felony offense, some employers will be nervous about hiring a defendant convicted of criminally negligent homicide. If a defendant is not a U.S. citizen, the felony conviction can result in their deportation.

Legal Assistance

Criminally negligent homicide is not a charge to tackle alone or with limited information. If the offenses involved motor vehicles or other types of property that are usually insured, a defendant may want to consult with a criminal defense and personal injury attorney. The combination of information can help a defendant preserve their rights, preserve evidence, and to protect themselves from any other collateral lawsuit.