Recklessness


Fundamentals of Criminal Law

Adam J. McKee, Ph.D.

Jack Brown, Ph.D.


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Recklessly is a lower level of culpability than knowingly, and reckless intent crimes are not as common as offenses criminalizing purposeful or knowing conduct. The degree of risk awareness is key to distinguishing a reckless intent crime from a knowing intent crime. A defendant acts recklessly if he or she consciously disregards a substantial and unjustifiable risk that the bad result or harm will occur.

Term of Art:  Bifurcated

Bifurcated means split into two parts.  You will encounter this term frequently in legal writings.  When a trial is split into a guilt determination phase and a sentencing phase, it is said to be a bifurcated trial.  When fingerprint experts testify as to a bifurcation, they are talking about a friction ridge that splits into two different directions.  What a test of something is established by the Court and the test has two different elements, then it can be said to be a “bifurcated test.”  You will also see these elements of legal tests referred to as prongs. Two-prong, three-prong, and four-prong tests are quite common.

 

This is different from a knowing intent crime, where the defendant must be “practically certain” of the harmful outcome.  The recklessness evolution is a bifurcated test. First, the defendant must consciously disregard (he or she knew that it was dangerous) a substantial risk of harm.  Note that this is a subjective standard.  In other words, the defendant had to know that a substantial risk existed. In addition, no valid reason can exist for taking the risk. The standard for this prong is considered objective.  We know this from the language of the statute; if a reasonable person would not take the risk, then the defendant’s action in taking it is reckless.

Term of Art:  Reasonable Person Test

Back it more sexist times, the Court and lawmakers often referred to the incredibly wise and prudent reasonable man.   Now more gender neutral, the reasonable person has taken his place as a sort of hypothetical “average person” that finders of fact can use as a benchmark to determine objectively whether a defendant’s actions were appropriate.  Any you see the conduct of a defendant compared to that of the reasonable person, you can rest assured that the law is applying on objective test.  This is different than a subjective test where the question is whether the defendant’s actions were appropriate in his or her own mind.

 

Modification History

File Created:  08/05/2018

Last Modified:  08/05/2018

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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