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Criminal Law: Manslaughter and Criminally Negligent Homicide

See Also:

Criminal Homicide: Manslaughter

A homicide is the death of a person that was caused by the improper actions of another. A manslaughter charge is appropriate when a homicide does not rise to the level of murder. As such, while manslaughter is certainly a serious felony, the punishments are less than those for murder.

We will look at the two types of manslaughter: voluntary and involuntary. We will look at the elements that distinguish these crimes from each other and from murder. Finally, we will look at vehicular homicide which is often thought of as a subcategory of manslaughter.

Background on Manslaughter

Manslaughter is divided into the categories of “voluntary” and “involuntary” (or, in some jurisdictions, first- and second-degree) manslaughter. The difference between these two lies in the intent of the perpetrator. Intent refers to the state of mind that accompanies criminal actions. Intent can be divided into the following categories, from most culpable to least culpable:

-          Purpose, which means specific intent that a result occur.

-          Knowing, which means acting with knowledge that a result is likely to occur

-          Recklessness, which means consciously ignoring a risk, and

-          Negligence, which means unreasonably failing to perceive a risk that the defendant should have perceived.

Voluntary manslaughter

Voluntary manslaughter means homicide that meets the “purpose” or “knowing” levels of intent, but does not rise to the level of murder because it is mitigated by the fact that it was committed in the “heat of passion.” It occurs when the perpetrator is overwhelmed by emotion in the moment due to sudden circumstances, loses his sense of judgment, and kills another person in the heat of passion. To get the benefit of this reduction from murder to manslaughter, the perpetrator must have been “strongly provoked” into the act by the victim having created a situation that caused him to be distraught and overwhelmed to the extent that it is understandable, though not excusable, that his better judgment would be impaired.[1]  

The circumstances that led to the killing determine whether the crime is murder or voluntary manslaughter, so an all-encompassing definition of applicable situations is not possible. The two classic examples of “heat of passion” are when one spouse catches another in the act of having an affair and when two people get into a violent fight or altercation. Another possible example of heat of passion might be where one finds vandals desecrating one’s parents’ graves. In such cases, killing is, of course, illegal and is a serious felony, but it is not considered as serious as murder.

The trier of fact (usually the jury) determines whether a reasonable person would have been provoked to act in a rash manner under the circumstances. If a “reasonable” person could be expected to lose control under the circumstances, a reduction from murder to manslaughter may be appropriate.[2]

Most jurisdictions require that the provocation be one that would ordinarily create a blinding anger or rage on the part of the perpetrator. In addition, there must not have been a “cooling off” period after the provocation. For example, if the perpetrator catches his wife in bed with his best friend and shoots one of them in rage, it is quite possible that a jury could decide that manslaughter is more appropriate than murder. However, if the perpetrator went to the store, bought a gun and then came back and shot and killed his best friend, the appropriate charge would be murder. The cooling-off period he allowed himself between the provocation and the murder brought this crime from one that could be described as “heat of passion” to one that can only be described as premeditated murder.

Some jurisdictions, such as New York, also call it manslaughter when the perpetrator assaulted the victim with intent to inflict serious bodily injury, but not to kill, the victim, but the victim succumbs to his injuries. Most states, however, follow the common law in defining this scenario as second-degree murder.

Voluntary manslaughter is a serious felony, and is punished accordingly. Potential sentences for first-degree felonies vary by jurisdiction, but will usually be many years in prison.[3] As with most crimes, the sentencing court is generally given broad discretion to determine sentences based on the applicable circumstances.

Involuntary manslaughter

Involuntary manslaughter occurs when the perpetrator engages in dangerous or illegal activity that causes the death of another. This crime requires recklessness in some jurisdictions, while others allow involuntary manslaughter charges in cases of criminal negligence.  Involuntary manslaughter is known as “criminally negligent homicide” in some jurisdictions,[4] though other jurisdictions may use the term “criminally negligent homicide” to describe a separate, lesser homicide where the intent of the perpetrator does not rise to the level of recklessness.[5]


Examples of cases that have led to charges of involuntary manslaughter:

·         Causing the death of an unborn child while in the commission of a crime.[6]

·         Reckless discharge of a firearm into the air or into a crowd, causing a death.[7]

·         A voluntary physical altercation, like a bar fight, where one person is accidentally killed.

·         A ride operator at a fair does not strap a passenger in properly, causing the death of the passenger.

Vehicular homicide

The most commonly charged crime designated as “involuntary manslaughter” is vehicular homicide, where negligence or recklessness caused a car wreck that takes another person’s life. Here, the unlawful activity could be speeding, failure to control or distracted driving.

There are various degrees of vehicular homicide laws in various jurisdictions. One state, Ohio, breaks down three variations of this crime:


·         Vehicular Manslaughter is causing the death of another person or unborn child while operating a motor vehicle because of a misdemeanor traffic violation. This is a second-degree misdemeanor and is punishable by up to 90 days in jail and a license suspension.

·         Vehicular Homicide is death caused while operating a vehicle negligently or while speeding in a construction zone. This is a first-degree misdemeanor punishable by up to 6 months in jail and a license suspension.

·         Aggravated Vehicular Homicide is a felony and is broken down into three types: Causing a death while recklessly operating a motor vehicle is a third-degree felony punishable by 1-3 years in prison. A death caused while driving under the influence of alcohol is a second-degree felony punishable by imprisonment of 2-8 years. Causing death while driving with a suspended license or prior conviction for the same crime is a first-degree felony punishable by up to 15 years in prison.[8]

Causing death while driving drunk or drugged is typically punished as a serious felony. Some states call it “aggravated vehicular homicide”, while most states simply call it “involuntary manslaughter”.

It should also be noted that, while death caused in the commission of a crime may be considered involuntary manslaughter, if the crime is a serious felony such as burglary, robbery, arson or rape, the death may constitute murder under the felony-murder rules that apply in many states. These rules are topics covered in our presentations on murder.


Manslaughter is a crime in which one person kills another person, but with mitigating circumstances or without the motivations that would justify a charge of murder. Manslaughter can be voluntary or involuntary. Voluntary manslaughter is a “crime of passion,” while involuntary manslaughter is caused by criminal negligence or recklessness.


[1] Ex. California Penal Code § 511

[2] West's Encyclopedia of American Law, Edition 2.

[3] Ex. 18 U.S.C. § 1112 (up to 15 years).

[4] Ex. Florida Statutes §§ 782.07, 782.071, 782.072

[5] Ex. Texas Penal Code, Title 5, § 19.05

[6] 29 states have some kind of “fetal protection” law.  Manslaughter ex. Idaho Sess. Law Chap 330

[7] State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993)

[8] Ohio Rev. Code § 2903.06