WPIC 10.04 Criminal Negligence—Definition

Use bracketed material as applicable. For a discussion of the bracketed alternatives relating to a wrongful act, see the Comment below.

If the bracketed second paragraph is used, use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 10.03 (Recklessness—Definition), as applicable, with this instruction.

With regard to the bracketed language in the instruction's final sentence, see the discussion of the Goble and Gerdts cases in the Comment to WPIC 10.03 (Recklessness—Definition).

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

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). See State v. Allen, 101 Wn.2d 355, 678 P.2d 798 (1984). In the same opinion, the court suggests in dictum that whenever criminal negligence is an element of the crime charged, the defendant is entitled to an instruction defining criminal negligence, such as WPIC 10.04.

The breach of a statutory duty is admissible, but not conclusive, on the issue of criminal negligence. State v. Lopez, 93 Wn.App. 619, 970 P.2d 765 (1999).

Because criminal negligence is based on an objective “reasonable person” standard, a person may be criminally negligent despite voluntary intoxication, State v. Coates, 107 Wn.2d 882, 892, 735 P.2d 64 (1987), and despite an impairment in mental capacity, State v. Warden, 80 Wn.App. 448, 456, 909 P.2d 941 (1996), affirmed, 133 Wn.2d 559, 947 P.2d 708 (1996).

For manslaughter, the definition of criminal negligence is likely more particularized than is the general statutory definition. The statutory definition is phrased in terms of failing to be aware of a substantial risk that a wrongful act may occur, whereas in the manslaughter context, the Supreme Court has implied that criminal negligence involves a substantial risk that a death may occur. In State v. Gamble, 154 Wn.2d 457, 467–68, 114 P.3d 646 (2005), the Supreme Court analyzed the related definition of recklessness, holding that recklessness in a manslaughter case requires proof of a substantial risk that a death, rather than simply a wrongful act, may occur. By a similar rationale, criminal negligence in the manslaughter context would require proof of a substantial risk that a death may occur. Accordingly, for a manslaughter case, this instruction above should be drafted using the word “death” rather than “wrongful act.” 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.

Assuming that this analysis applies in the negligence context, the bracket after “a wrongful act” should be filled in with language specifying the nature of the risk the defendant is alleged to have disregarded. See the appropriate elements instructions for particular offenses for the WPI Committee's recommended language.

With regard to the relationship between criminal negligence and higher culpability requirements, see the discussion in the Comments to WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 10.03 (Recklessness—Definition). 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).