they pertain to an attendant circumstance(as in this rape example) 7 also when beliefs pertain to a result of the actor's conduct (as in homicide) and Iv. Comparing the standard tort and modern criminal law conceptions It is illuminating to compare the tort and criminal law conceptions. In several important respects the conceptions are similar: (1)Both employ an evaluative rather than descriptive criterion: they ask a normative question(what the actor should have done or should have believed ot a factual one (what he actually did or actually intended, or actually believed). In this sense, at least, both conceptions are "objective" rather than subjective. By contrast, knowledge" and"intention criteria are descriptive (2)Both employ "reasonableness"or the reasonable person"as the evaluative criterion 3)The evaluation is a conclusive judgment of fault, in the relevant sense. Negligent conduct is unjustified conduct, or conduct that should, all things considered, have been otherwise. Negligent ignorance and negligent mistake, Few MPC crimes fully exploit the culpability hierarchy, especially with respect to circumstance elements. See Douglas Husak, The Sequential Principle of Relative Culpability, 1 Legal Theory 493, 503-505(1995) 18 For grading purposes, to be sure the cognitive conception also asks a factual question: Was the actor aware of the risk? If so, he is reckless; if not, he is only 19 For further discussion of the different senses of "subjective"and"objective"in connection with negligence, see George P. Fletcher, Basic Concepts of Criminal Law 117-120(Oxford 1998): see also George P. Fletcher, Rethinking Criminal Law 504-514 Little, Brown Co. 1978) 20 Of course, a normative rationale ultimately explains why and when the law employs such descriptive criteria. But the actual application of the criterion by the factfinder does not explicitly require normative judgment. (To be sure, this is a matter of degree: a juror familiar with the consequence of a determination that the actor "intended to kill will undoubtedly use her moral judgment, and not just the judge's instructions defining intent, in making that determination However, the "reasonable person"formulation is not a necessary feature of a negligence standard. See text at notes 69-85= infra Simons. Dimensions of Negl 8/7/02
beliefs pertain to a result of the actor’s conduct (as in homicide) and also when they pertain to an attendant circumstance (as in this rape example).17 IV. Comparing the standard tort and modern criminal law conceptions It is illuminating to compare the tort and criminal law conceptions. In several important respects, the conceptions are similar: (1) Both employ an evaluative rather than descriptive criterion: they ask a normative question (what the actor should have done or should have believed), not a factual one (what he actually did, or actually intended, or actually believed).18 In this sense, at least, both conceptions are “objective” rather than “subjective.”19 By contrast, “knowledge” and “intention” criteria are descriptive.20 (2) Both employ “reasonableness” or “the reasonable person” as the evaluative criterion.21 (3) The evaluation is a conclusive judgment of fault, in the relevant sense. Negligent conduct is unjustified conduct, or conduct that should, all things considered, have been otherwise. Negligent ignorance and negligent mistake, 17 Few MPC crimes fully exploit the culpability hierarchy, especially with respect to circumstance elements. See Douglas Husak, The Sequential Principle of Relative Culpability, 1 Legal Theory 493, 503-505 (1995). 18 For grading purposes, to be sure, the cognitive conception also asks a factual question: Was the actor aware of the risk? If so, he is reckless; if not, he is only negligent. 19 For further discussion of the different senses of “subjective” and “objective” in connection with negligence, see George P. Fletcher, Basic Concepts of Criminal Law 117-120 (Oxford 1998); see also George P. Fletcher, Rethinking Criminal Law 504-514 (Little, Brown & Co. 1978). 20 Of course, a normative rationale ultimately explains why and when the law employs such descriptive criteria. But the actual application of the criterion by the factfinder does not explicitly require normative judgment. (To be sure, this is a matter of degree; a juror familiar with the consequence of a determination that the actor “intended” to kill will undoubtedly use her moral judgment, and not just the judge’s instructions defining “intent,” in making that determination.) 21 However, the “reasonable person” formulation is not a necessary feature of a negligence standard. See text at notes 69-85= infra. Page 10 of 57 Simons, Dimensions of Negligence 8/7/02
similarly, are unjustified: all things considered, the actor should have formed a particular belief, or should not have formed the belief that he did form (4)Both conceptions employ the idea of risk, chance or probability The tort conception considers whether the actor created an unreasonable risk of future harm, while the criminal law conception considers whether he unreasonably lacked a belief, as to either a relevant probability of a future harm occurring (e.g, Claude failing to foresee a significant risk of death)or the relevant probability of an existing fact(e.g. George failing to appreciate a significant chance that the victim was underage) (5 Lastly-and related to the last point-both conceptions permit a distinction between a risk or possibility of a harm or fact, and that harm occurring or that fact existing. One can negligently create a risk of harm, and yet not cause harm. And one can negligently fail to form the belief that a fact exists or that a result will occur, even though the fact actually does not exist, or the result actually does not occur. (This conceptual separation permits liability for inchoate torts or crimes, an implication explored below.") 22 I include"or probability" because the notion of "risk"implies an unwanted or adverse outcome. See Holly Smith, "Risk, "Encyclopedia of Ethics 1109(L. Becker and C. Becker eds. 1992). Accordingly, "risk" is a less apt term for describing beliefs as to existing circumstances, such as the age of a victim or the status of an assault victim as a police officer. One can negligently create a "risk"of killing someone, but it might be more precise to say that one is negligently unaware of the "possibility"or "probability that a victim is under the age of eighteen or is a police officer. On the other hand, perhaps even a circumstance element is an"adverse outcome"in the following sense. Although by definition, a circumstance cannot be changed by the actor, the actors actual satisfaction of such an element makes his conduct criminal. and thus the actor should treat such satisfaction as unwelcome. (The MPC, in defining recklessness and negligence, employs the term "risk "for both result and circumstance elements. MPC s202(2)(c),、(d)) Thus, the following might both be true: (a) George is unreasonable in failing to arrive at the belief that the victim is underage, but( b)the victim is not underage. (Suppose she has an unusually immature appearance, and he meets her at a junior high school dance. By the same token, one can be unreasonable in forming the affirmative and exculpatory belief that a fact exists or that a harm will not occur, yet the exculpatory fact Page 1l of 57 Simons. Dimensions of Negl 8/7/02
similarly, are unjustified: all things considered, the actor should have formed a particular belief, or should not have formed the belief that he did form. (4) Both conceptions employ the idea of risk, chance or probability.22 The tort conception considers whether the actor created an unreasonable risk of future harm, while the criminal law conception considers whether he unreasonably lacked a belief, as to either a relevant probability of a future harm occurring (e.g., Claude failing to foresee a significant risk of death) or the relevant probability of an existing fact (e.g. George failing to appreciate a significant chance that the victim was underage). (5) Lastly—and related to the last point—both conceptions permit a distinction between a risk or possibility of a harm or fact, and that harm occurring or that fact existing. One can negligently create a risk of harm, and yet not cause harm. And one can negligently fail to form the belief that a fact exists or that a result will occur, even though the fact actually does not exist, or the result actually does not occur.23 (This conceptual separation permits liability for inchoate torts or crimes, an implication explored below.24) 22 I include “or probability” because the notion of “risk” implies an unwanted or adverse outcome. See Holly Smith, “Risk,” Encyclopedia of Ethics 1109 (L. Becker and C. Becker eds. 1992). Accordingly, “risk” is a less apt term for describing beliefs as to existing circumstances, such as the age of a victim or the status of an assault victim as a police officer. One can negligently create a “risk” of killing someone, but it might be more precise to say that one is negligently unaware of the “possibility” or “probability” that a victim is under the age of eighteen or is a police officer. On the other hand, perhaps even a circumstance element is an “adverse outcome” in the following sense. Although, by definition, a circumstance cannot be changed by the actor, the actor’s actual satisfaction of such an element makes his conduct criminal, and thus the actor should treat such satisfaction as unwelcome. (The MPC, in defining recklessness and negligence, employs the term “risk” for both result and circumstance elements. MPC §2.02(2)(c),(d).) 23 Thus, the following might both be true: (a) George is unreasonable in failing to arrive at the belief that the victim is underage; but (b) the victim is not underage. (Suppose she has an unusually immature appearance, and he meets her at a junior high school dance.) By the same token, one can be unreasonable in forming the affirmative and exculpatory belief that a fact exists or that a harm will not occur, yet the exculpatory fact Page 11 of 57 Simons, Dimensions of Negligence 8/7/02
But the tort and criminal law conceptions also differ in some fundamental (1) The tort conception focuses on deficient conduct and on the need to take a precaution against risks of future harm. The criminal law conception focuses on deficient beliefs, not deficient precaution: one can negligently fail to believe something without necessarily failing to take a reasonable preventive measure. Thus, in one sense, the tort conception is wider: it includes both cases where the actor was unreasonably unaware of the relevant risks and cases where the actor was fully aware of those risks. (2) The tort conception provides a pervasive standard for behavior subject to legal liability, for it broadly encompasses any act that negligently causes physical harm to person or property. The criminal law conception is interstitial and derivative: it is but one culpability term among many, and its might actually exist or the harm might actually not occur. (Consider Frank, who negligent in believing that the victim is above age; and again, suppose she actually is. 4 See text at notes 101-103= infra s Put differently, a precaution is conduct that would effectively prevent a risk from reaching fruition. In the case of negligent beliefs, often the only relevant default is the actor's failure to reasonably assess the significance of the information she already possesses. Characterizing that default as failure to take a "precaution"is a forced locution at best. Of course, in some cases a faulty belief does indeed consist in a failure to take a "precaution in the ordinary sense of the term. If Ford Motor Company negligently failed to realize that the location of the fuel tank on the Ford Pinto was dangerous, this default might have been a consequence of failing adequately to research the possible safety hazards from that design. In other cases, too, the actor might fail to " give careful attention to the results of his conduct; and paying close g)is indeed a kind of pr Nevertheless. if I am paying adequate attention and have no opportunity (or no duty) to conduct a further investigation, my failure to make a reasonable inference from facts at my disposal can be a negligent mistake without entailing that I have failed to take a reasonable"precaution Tort law does employ a concept of recklessness, but it is significantly different, and usually narrower, than modern criminal laws conception of recklessness. The latter conception is simply negligence plus advertence to risk, while the former also require both indifference to risk and a greater departure from the standard of care negligence requires. See Draft Restatement (Third)of Torts, supra note 2=, $2 Simons. Dimensions of Negl 8/7/02
But the tort and criminal law conceptions also differ in some fundamental ways: (1) The tort conception focuses on deficient conduct and on the need to take a precaution against risks of future harm. The criminal law conception focuses on deficient beliefs, not deficient precaution: one can negligently fail to believe something without necessarily failing to take a reasonable preventive measure.25 Thus, in one sense, the tort conception is wider: it includes both cases where the actor was unreasonably unaware of the relevant risks and cases where the actor was fully aware of those risks.26 (2) The tort conception provides a pervasive standard for behavior subject to legal liability, for it broadly encompasses any act that negligently causes physical harm to person or property. The criminal law conception is interstitial and derivative: it is but one culpability term among many, and its might actually exist or the harm might actually not occur. (Consider Frank, who is negligent in believing that the victim is above age; and again, suppose she actually is.) 24 See text at notes 101-103= infra. 25 Put differently, a precaution is conduct that would effectively prevent a risk from reaching fruition. In the case of negligent beliefs, often the only relevant default is the actor’s failure to reasonably assess the significance of the information she already possesses. Characterizing that default as failure to take a “precaution” is a forced locution at best. Of course, in some cases a faulty belief does indeed consist in a failure to take a “precaution” in the ordinary sense of the term. If Ford Motor Company negligently failed to realize that the location of the fuel tank on the Ford Pinto was dangerous, this default might have been a consequence of failing adequately to research in advance the possible safety hazards from that design. In other cases, too, the actor might fail to “give careful attention” to the results of his conduct; and paying close attention (for example, while driving) is indeed a kind of precaution. Nevertheless, if I am paying adequate attention and have no opportunity (or no duty) to conduct a further investigation, my failure to make a reasonable inference from facts at my disposal can be a negligent mistake without entailing that I have failed to take a reasonable “precaution.” 26 Tort law does employ a concept of recklessness, but it is significantly different, and usually narrower, than modern criminal law’s conception of recklessness. The latter conception is simply negligence plus advertence to risk, while the former also might require both indifference to risk and a greater departure from the standard of care than negligence requires. See Draft Restatement (Third) of Torts, supra note 2=, §2. Page 12 of 57 Simons, Dimensions of Negligence 8/7/02
significance depends on the substantive criminal law norm to which it attaches (homicide, assault, property interests, sexual autonomy, public morals, the administration of justice, and so forth). Negligence in failing to determine whether a victim consents to sexual intercourse has a rather different moral significance than negligence in judging the value of property one is stealing, and the consequences for criminal punishment are correspondingly quite different. 28 (3 The tort conception endorses an ex ante perspective, while the criminal law conception, strictly speaking, does not. That is, in tort law the issue is whether the actor's conduct was reasonable in light of the risks it created ex ante, prior to their fruition(or nonfruition) in harm. The criminal law conception instead asks whether the actor's belief was reasonable in light of the information available to him when he formed the belief. Negligent inadvertence or mistake need not entail that the actor created (or failed to minimize) an unreasonable risk of future harm; it need only mean that he lacked adequate grounds for his belief To put the matter differently: Although a belief can be reasonable or unreasonable, and thus can be non-negligent or negligent, the object of such a belief can be a proposition about the future, about the present, or even about the past. So the ex ante perspective is not a necessary part of the cognitive negligence determination This contrast should not be overstated, however: a pervasive tort negligence standard applies only to physical injury to person or property, not to exclusively economic or emotional harms For further discussion of this point, see text at notes 36-37= infra This point is most obvious when the belief pertains to an existing fact. If Frank,s belief as to Violet's current age is negligent, this does not entail that, ex ante, he is taking an unreasonable risk of some future consequence that may or may not come to fruition. But even when the relevant belief pertains to a risk of future harm, the reasonableness of the belief itself is not evaluated "ex ante"in the relevant sense. Thus, if Claude negligently failed to appreciate that the dangerous maneuver he was about to undertake create a significant risk of death, his cognitive fault consists in his unreasonable failure of perception or inference, based on information reasonably available at the time that he formed his belief. (His conduct fault, however, does consist in his creating an ex ante unreasonable risk of future harm. Insofar as the law makes relevant the reasonableness of an actor's beliefs about past facts, clearly the reasonableness analysis does not involve an "ex ante" evaluation Simons. Dimensions of Negl 8/7/02
significance depends on the substantive criminal law norm to which it attaches (homicide, assault, property interests, sexual autonomy, public morals, the administration of justice, and so forth).27 Negligence in failing to determine whether a victim consents to sexual intercourse has a rather different moral significance than negligence in judging the value of property one is stealing, and the consequences for criminal punishment are correspondingly quite different.28 (3) The tort conception endorses an ex ante perspective, while the criminal law conception, strictly speaking, does not. That is, in tort law the issue is whether the actor’s conduct was reasonable in light of the risks it created ex ante, prior to their fruition (or nonfruition) in harm. The criminal law conception instead asks whether the actor’s belief was reasonable, in light of the information available to him when he formed the belief. Negligent inadvertence or mistake need not entail that the actor created (or failed to minimize) an unreasonable risk of future harm; it need only mean that he lacked adequate grounds for his belief. To put the matter differently: Although a belief can be reasonable or unreasonable, and thus can be non-negligent or negligent, the object of such a belief can be a proposition about the future, about the present, or even about the past.29 So the ex ante perspective is not a necessary part of the cognitive negligence determination. 27 This contrast should not be overstated, however: a pervasive tort negligence standard applies only to physical injury to person or property, not to exclusively economic or emotional harms. 28 For further discussion of this point, see text at notes 36-37= infra. 29 This point is most obvious when the belief pertains to an existing fact. If Frank’s belief as to Violet’s current age is negligent, this does not entail that, ex ante, he is taking an unreasonable risk of some future consequence that may or may not come to fruition. But even when the relevant belief pertains to a risk of future harm, the reasonableness of the belief itself is not evaluated “ex ante” in the relevant sense. Thus, if Claude negligently failed to appreciate that the dangerous maneuver he was about to undertake would create a significant risk of death, his cognitive fault consists in his unreasonable failure of perception or inference, based on information reasonably available at the time that he formed his belief. (His conduct fault, however, does consist in his creating an ex ante unreasonable risk of future harm.) Insofar as the law makes relevant the reasonableness of an actor’s beliefs about past facts, clearly the reasonableness analysis does not involve an “ex ante” evaluation. Page 13 of 57 Simons, Dimensions of Negligence 8/7/02
A more complete picture of negligence in tort and criminal law At this point, an impatient reader might wonder: Am I exaggerating the differences between the conduct and cognitive conceptions? Indeed, am unnecessarily multiplying conceptions of negligence, ignoring the fundamental and core similarities? Would Ockham's razor come in handy? Consider the following(superficially) attractive reasons to cut down the complexity of the analysis. First, in criminal law, often the cognitive negligence standard is employed, not alone, but in conjunction with a tort-like conception of negligent conduct. Second, the very meaning of cognitive"negligence" depends on the legal context; what counts as culpable inadvertence depends on the nature of the conduct that the actor should have realized he was engaging in, or the nature of the harm he should have realized he was risking. Third, becau the tort conception incorporates the idea of ex ante risk, it seems to presuppose a certain kind of cognitive inquiry-the inquiry into whether the risk is "reasonably foreseeable Each of these points merits more careful attention, for each is valid. In the end, however, none of them undermines the importance of the fundamental distinction between cognitive and conduct negligence. Indeed, I must regretfully report a further conclusion: an even greater profusion of conceptions of negligence proves useful A. When criminal law employs a conduct conception of negligence Consider first whether the cognitive conception is the only important conception of negligence employed in criminal law doctrine. Closer examination reveals that it is not. Rather, criminal law negligence standards often employ the cognitive conception in conjunction with a tort-like conception of unreasonable, ex ante unjustifiable, risk-creation. Reconsider negligent homicide liability. Such liability requires more than that an actor was cognitively negligent, i.e., that he ( Consider the requirement that a police officer have reasonable grounds to believe that the defendant has committed a crime before arresting the defendant Page 14 of 57 Simons. Dimensions of Negl 8/7/02
V. A more complete picture of negligence in tort and criminal law At this point, an impatient reader might wonder: Am I exaggerating the differences between the conduct and cognitive conceptions? Indeed, am I unnecessarily multiplying conceptions of negligence, ignoring the fundamental and core similarities? Would Ockham’s razor come in handy? Consider the following (superficially) attractive reasons to cut down the complexity of the analysis. First, in criminal law, often the cognitive negligence standard is employed, not alone, but in conjunction with a tort-like conception of negligent conduct. Second, the very meaning of cognitive “negligence” depends on the legal context; what counts as culpable inadvertence depends on the nature of the conduct that the actor should have realized he was engaging in, or the nature of the harm he should have realized he was risking. Third, because the tort conception incorporates the idea of ex ante risk, it seems to presuppose a certain kind of cognitive inquiry—the inquiry into whether the risk is “reasonably foreseeable.” Each of these points merits more careful attention, for each is valid. In the end, however, none of them undermines the importance of the fundamental distinction between cognitive and conduct negligence. Indeed, I must regretfully report a further conclusion: an even greater profusion of conceptions of negligence proves useful. A. When criminal law employs a conduct conception of negligence Consider first whether the cognitive conception is the only important conception of negligence employed in criminal law doctrine. Closer examination reveals that it is not. Rather, criminal law negligence standards often employ the cognitive conception in conjunction with a tort-like conception of unreasonable, ex ante unjustifiable, risk-creation. Reconsider negligent homicide liability. Such liability requires more than that an actor was cognitively negligent, i.e., that he (Consider the requirement that a police officer have reasonable grounds to believe that the defendant has committed a crime before arresting the defendant.) Page 14 of 57 Simons, Dimensions of Negligence 8/7/02