What is the difference between criminal recklessness and negligence? 

N.H. Supreme Court Analysis of Criminal Recklessness and Negligence

There are four common criminal mental states: purposely, knowingly, recklessly, and negligently. Deciding whether the State has proven the alleged mental state is often more difficult for jurors than finding the State has proven the act occurred.

Recklessness is defined as being aware of, but consciously disregarding, a substantial, unjustifiable risk that serious bodily injury would result from one’s conduct. RSA 626:2, II (c). The State must also prove, “The defendant’s disregard for the risk of injury to another was a gross deviation from the regard that would be given by a law-abiding citizen.” State v. Hull, 149 N.H. 706, 713 (2003).

“A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.” RSA 626:2, II (d).

Applying criminal mental states to facts is a challenging task for juries because jury instructions differ from everyday conversations. Further, as discussed in our recent jury selection blog post, each person ascribes a different set of values, morals, and personal definitions of words. This post examines the reckless mental state in criminal court through the November 26, 2019 New Hampshire Supreme Court decision in State v. Carnevale. 2019 N.H. LEXIS 243 (Nov. 29, 2019).

The reckless conduct alleged in Carnevale was he engaged in conduct that placed or may have placed another person in danger of serious bodily injury – and the SUV as driven constituted a deadly weapon. Here, it’s also important to understand that fleeing the scene was significant evidence of the defendant’s consciousness of guilt and the jury likely agreed. A common, shared public activity such as driving on a freeway presents a relatively clear task for a jury in deciding recklessness because rules of the road are not only codified in law, but generally accepted by drivers.

“A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.” RSA 626:2, II (d).

Civil negligence is “simply the failure to exercise the degree of care that a reasonable person would exercise under the same circumstances.” State v. Littlefield, 152 N.H. 331, 350 (2005). Criminal negligence, in contrast, requires proof of two heightened thresholds: proof of substantial and unjustifiable risk rather than ordinary risk, and proof that the defendant’s failure to become aware of that risk was a gross deviation from how a reasonable person would have acted in that situation rather than the simple failure to exercise a reasonable person’s degree of care.

Criminal negligence requires an act of the accused that brings about the substantial and unjustifiable risk. This has been found via speed, gross inattention (such as texting while driving), and most commonly, impairment by alcohol or drugs. See e.g. Id.; State v. Pittera, 139 N.H. 257, 259 (1994); State v. Ebinger, 135 N.H. 264, 265-66 (1992).

An example of non-criminal negligence is the “Two-second failure to keep his car in its lane might have constituted civil negligence, but, without more, it did not constitute criminal negligence as a matter of law.” State v. Shepard, 158 N.H. 743, 747 (2009).

When defending against reckless or negligent criminal allegations it is important to consider evidence before, during, and after the alleged crime. It is also important to deconstruct each element of the accusation including both the mental state and physical act of the accused.

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Kevin O'Keefe has represented thousands of clients in all areas of criminal law. Before establishing Reis & O'Keefe, Kevin was an attorney with the New Hampshire Public Defender.
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