WPIC 10.03 Recklessness—Definition

Use bracketed material as applicable. For an important discussion of the first paragraph's bracketed alternatives relating to a wrongful act, see the Comment below and the Comments to the elements instructions for specific crimes that include recklessness.

Do not use this definition for traffic offenses under RCW Chapter 46.61 nor for vehicular homicide and vehicular assault offenses. For reckless driving, use WPIC 95.01 (Reckless Driving—Definition). For vehicular homicide, vehicular assault, or attempting to elude a police vehicle, use WPIC 90.05 (Reckless Manner—Disregard for Safety of Others—Definition—Ordinary Negligence Distinguished).

Also use, as applicable, WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 10.01 (Intent—Intentionally—Definition).

With regard to the bracketed language in the instruction's final sentence, see the discussion of the Goble case in the Comment to WPIC 10.02 (Knowledge—Definition).

RCW 9A.08.010(1)(c); RCW 9A.08.010(2).

This instruction is based on the language of RCW 9A.08.010(1)(c) and (2). The statutory definition of “reckless” does not apply to reckless driving, which is separately defined in RCW 46.61.500(1). See RCW 9A.04.090. Nor does it apply to the meaning of “reckless manner” for purposes of vehicular homicide, vehicular assault, and attempting to elude a police officer. See State v. Roggenkamp, 153 Wn.2d 614, 624 n.3, 106 P.3d 196 (2005).

The Supreme Court has held that when intent is an element of the crime charged, the defendant is entitled to have the jury instructed with the statutory definition of “intent,” WPIC 10.01 (Intent—Intentionally—Definition). State v. Allen, 101 Wn.2d 355, 678 P.2d 798 (1984). In the same opinion, the court suggests in dictum that whenever recklessness is an element of the crime charged, the defendant is entitled to an instruction defining recklessness, such as WPIC 10.03.

The definition of “reckless” includes both a subjective and an objective component, in that the definition depends on both what the defendant knew and how a reasonable person would have acted knowing these facts. State v. R.H.S., 94 Wn.App. 844, 974 P.2d 1253 (1999).

Recklessness may be based on inaction if the person violates a statutory duty to perform a particular act. See State v. Morgan, 86 Wn.App. 74, 936 P.2d 20 (1997) (violation of statutory duty to summon medical aid can constitute recklessness for purposes of manslaughter). But see State v. Sublett, 176 Wn.2d 58, 85, 292 P.3d 715 (2012) (rejecting argument in murder case that failure to report a violent offense warrants an instruction on lesser-included offense of manslaughter).

The definition of recklessness may be more particularized than the general statutory requirement of a substantial risk that a wrongful act may occur. The Supreme Court has held in a manslaughter case that the definition of recklessness requires proof that the actor disregarded a substantial risk that a death, rather than simply a wrongful act, may occur. State v. Gamble, 154 Wn.2d 457, 467–68, 114 P.3d 646 (2005) (in the context of analyzing whether first degree manslaughter is a lesser included offense of second degree felony murder with assault as the predicate felony). Accordingly, for a manslaughter case, the instruction above should be drafted using the word “death” rather than “wrongful act.” The court's reasoning in Gamble was adopted in State v. Peters, 163 Wn.App. 836, 261 P.3d 199 (2011) (first degree manslaughter). The Gamble court gave no indication as to whether more particularized standards would also apply to offenses other than manslaughter. Accordingly, the first paragraph of this instruction above is drafted in a manner that allows practitioners to more fully consider how Gamble applies to other offenses.

In State v. Johnson, 180 Wn.2d 295, 325 P.3d 135 (2014), the Supreme Court declined to extend the rule to a prosecution for assault in the second degree, finding that the WPIC 10.03 “generic” definition of recklessness is sufficient when charge-specific language for recklessness is included in the “to convict” instruction. However, careful consideration should be given to drafting a particularized definition of recklessness (or negligence) depending on the charge that contains such mental element.

In a pre-Gamble prosecution for first degree manslaughter and vehicular homicide, the trial court properly instructed the jury with WPIC 10.03. The Court of Appeals rejected defense argument that the word “reasonable” should have been further defined in light of the circumstances as they appeared to the defendant at the time of the incident. State v. Haley, 39 Wn.App. 164, 692 P.2d 858 (1984).

Before the 2008 edition, it was common for the second paragraph of this instruction to simply state that recklessness is shown “if a person acts intentionally or knowingly.” This statutory phrasing was found to be problematic in State v. Goble, 131 Wn.App. 194, 126 P.3d 821 (2005), and so was clarified to ensure that the mental states relate to the same fact or result. Other cases have since given approval to the earlier formulation. See State v. Keend, 140 Wn.App. 858, 166 P.3d 1268 (2007) and State v. Holzknecht, 157 Wn.App. 754, 238 P.3d 1233 (2010). The WPI Committee continues to strongly recommend that the clarified language be used, particularly when the elements of the charged crime contain two different mental states with the potential to become “conflated.” See State v. Gerdts, 136 Wn.App. 720, 150 P.3d 627 (2007), and the discussion in the Comment to WPIC 10.02 (Knowledge).

For a general discussion of the hierarchy of mental states set forth in RCW 9A.08.010, see WPIC 10.00 (Introduction—Statutory Levels of Culpability).

An exception to a defense of duress exists if the defendant “recklessly placed himself in a situation in which it was probable he would be subject to duress.” RCW 9A.16.030(3). In State v. Healy, 157 Wn.App. 502, 237 P.3d 360 (2010), the court approved of the language of WPIC 18.01 (Duress—Defense) as well as the Note on Use recommending the accompanying use of this instruction defining recklessness.