Criminal or Civil?
Homicide is the killing of a person by another. Not all homicides are unlawful. Lawfulness depends on one’s conduct that caused the death of another.
“Manslaughter is the unlawful killing of a human being without malice.” If the killing was not unlawful, the killing is deemed an accident and criminal culpability is not attached. Yet, civil liability is possible.
There are three types of manslaughter:
We will focus on the differences between involuntary manslaughter and accidental homicide. It will not cover the ‘mens rea’ of general intent crimes nor proximate causation. For the purposes of this article, it will be assumed that both are present. We will focus on the person’s conduct that caused the killing to see whether or not the killing was unlawful.
Involuntary manslaughter consists of two elements, and the prosecutor needs to prove each beyond a reasonable doubt:
- There needs to be a killing of another person. (Remember, if there was malice, then the charge would be murder and manslaughter would likely be a lesser included offense)
- The killing was unlawful.
Seems simple, but it’s not exactly.
If death resulted from a felonious act, we are now in the felony murder rule but that is beyond the scope of this article. But not all unlawful acts that result in death would constitute manslaughter.
For example, the law says there are two types of crimes, ‘malum in se’ and ‘malum prohibtum’. The former is inherently evil, and the latter is wrong because the government says so. Unlawful acts of the malum in se variety are the type of unlawful acts that constitute manslaughter if someone died as a result.
In other words,
“if the act is a violation of a statute intended and designed to prevent injury to the person, and is in itself dangerous, and death ensues, that the person violating the statute is guilty of manslaughter at least” – State vs. Agnew
Crimes against the person are the typical unlawful acts that could lead to an involuntary manslaughter charge even if there was no intent to harm or kill the victim. Again, “manslaughter is comprised of two elements, (1) a killing, (2) in an unlawful manner.”
As explained above, a non-felonious crime that caused the death of a person may show the killing was unlawful. But the killing may be unlawful even if it resulted from lawful conduct if the “lawful act which might produce death [was done] in an unlawful manner….”
The above may seem confusing or contradictory. The Jackson case will shed some light on how lawful conduct may still be manslaughter. In that case, the defendant and the victim got into a physical altercation. The victim received injuries to his head and died the next morning. Witnesses testified that the defendant slammed the victim’s head numerous times into the pavement. The defendant testified that the victim instigated the fight, and he was only acting in self-defense and did not intend to kill the defendant. The defendant was convicted of involuntary manslaughter.
Remember, intent to kill is not an element of manslaughter. Defendant’s testimony that he did not intend to kill the victim was irrelevant to the manslaughter charge.
The appellate court upheld the conviction. The court said the killing was unlawful even if the defendant had the right to self-defense, initially.
“The force used by the defendant in striking deceased’s head on the pavement far exceeded the amount necessary to defend himself.”
Accordingly, under California law, involuntary manslaughter may arise from a “lawful act” if the act might “produce death” and the act is performed “in an unlawful manner.”
Slamming someone’s head into the pavement is the type of act that could kill someone. Then the court looks to see if the lawful act, initially, was performed in an unlawful manner, which basically nullifies the lawfulness of the act. If the defendant uses more force than necessary to defend himself, he basically forfeits self-defense. Thus, the lawful act was performed in an unlawful manner.
Now in the Jackson case, there was conflicting evidence on who started the fight. But let’s assume the victim started the fight by pushing the defendant. Then the defendant only used roughly the same amount of force as used by the victim to push the away from the victim. Lets assume further, but remember assuming is only good for hypotheticals, the victim lost his balance, fell, struck his head on the pavement, and died. Since the defendant’s force was proportional and did only what was necessary to defend himself, the prosecution will have a much tougher time proving the killing was unlawful because the self-defense was not performed in an unlawful manner. He only did what was necessary.
Criminal negligence can be another basis for a manslaughter charge and conviction. California Penal Code Section 192 calls it “without due caution and circumspection.” But criminal negligence is more than ordinary negligence used by the civil courts. If someone died due to simple negligence, the killing is not unlawful.
The critical question for the jury to answer is whether the killing was unlawful. If it is not, then it is a tragic accident but not a crime.
Defending Criminal Charges
The defense attorney’s main job is to show that the death, although tragic, it was an accident, not a crime. As we said. manslaughter is an unlawful killing. The defense will focus on the manner of death to show the killing was not unlawful. This depends on the prosecution’s theory of the case.
If the prosecution argues that the death resulted from unlawful conduct by the defendant, the defense will counter that either there was no violation of law or the law violated is not the type of law “intended and designed to prevent injury to the person.”
If the prosecution argues that the killing was unlawful because the defendant’s conduct may have started lawfully it was performed in an unlawful manner. Here, the defense will try to show the defendant’s conduct was done in a lawful manner because the defendant’s conduct was necessary to achieve the lawful purpose of his actions.
Finally, if the prosecution argues the defendant is guilty of involuntary manslaughter because of his criminal negligence, the defense response is pretty obvious that there was no criminal negligence, at best the defendant engaged in ordinary negligence, and this case is a civil matter, not a criminal matter.
A manslaughter trial is fact-intensive. The prosecution and defense will have a thorough understanding of the facts of the case. Yet, the win at trial may come down to which attorney can best weave the law and facts together and provide the more plausible factual scenario to show whether the killing was or was not unlawful.
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Seppi Esfandi is an Expert Attorney who has over 21 years of practice defending a variety of cases.