Distinguishing recklessness from negligence will be important in criminal law and possibly elsewhere. In criminal law, you're especially likely to need this distinction when tested on homicide.
Why so? Murder under the common law could be committed in four ways (each way provided for the malice aforethought needed to commit the crime). One of those ways was called "depraved heart" murder (a dramatic term, for sure) and, essentially, meant that you killed someone and, though you didn't intend to do so, you acted recklessly, and your recklessness was the cause of death.
Involuntary manslaughter (a type of homicide different from murder), in contrast, required a lesser degree of fault. If you were negligent, and your negligence killed someone, that was enough.
The bar examiners will sometimes ask you to "pick the most serious crime for which the defendant can be convicted." This question directly requires that you distinguish negligence from recklessness, provided that both murder and involuntary manslaughter are choices.
A bit of a trick is just to realize that these two standards are so similar that the more serious crime (here, murder) is likely correct. In other words, if the facts support involuntary manslaughter, then (on this test) they often support murder.
But tricks only take you so far. It's good to understand the distinction. With recklessness, you consciously disregard the risks posed to others. In other words, you realize the danger you pose, but you ignore that realization and act anyway.
Negligence is quite different. If you consciously ignore the risks, then you've acted worse than negligently. With negligence, your error isn't to consciously ignore the risks; it's to not realize those risks when reasonable people would have realized them. Not quite as bad as consciously ignoring them.
These are degrees of fault. A conscious disregard is worthy of more fault than a lack of reasonable care. As such, the crime is more serious when you've done the former than it is when you've done the latter.
No comments:
Post a Comment