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32 Ky. L.J. 127 (1943-1944)
Rationale of Criminal Negligence, A

handle is hein.journals/kentlj32 and id is 129 raw text is: A RATIONALE OF CRIMINAL NEGLIGENCE (Continued from November issue) RoY MORELAD* 2. METHODS Op DESCRIBING THE NEGLIGENCE REQUIRED 'FOR CRIMINAL LIABILITY The proposed formula for criminal negligence describes the higher degree of negligence required for criminal liability as conduct creating such an unreasonable risk to life, safety, property, or other interest for the unintentional invasion of which the law prescribes punishment, as to be recklessly disre- gardful of such interest. This formula, like all such machinery, is, of necessity, ab- stractly stated so as to apply to a multitude of cases. As in the case of all abstractions, it is difficult to understand without explanation and illumination. What devices can be used to make it intelligible to judges and juries in individual cases q a. Describing criminal negligence by comparing it with evil A favorite method employed in the cases to describe crimi- nal negligence is to compare it with civil negligence. This is one of the devices adopted in the proposed formula. The funda- mental question, what is negligence, is answered the same way in each case by saying that it is unreasonably dangerous conduct.10 * A.B., Transylvania College, 1920; LL.B., University of Ken- tucky College of Law, 1923; JD., University of Chicago Law School, 1928; S.T.D., Harvard University, 1942. Professor of Law, Univer- sity of Kentucky College of Law; contributor to various legal periodicals. I This principle has been fully accepted in the law of torts. Its acceptance in crimes has been hampered by the supposed require- ment of some sort of mens rea. However, many decisions on the criminal side based upon negligence can be explained only on the basis of an objective standard. See the discussion, supra, pp. 34-41, The Objectivity of Negligence. Recent writers, text and period- ical, support the objective theory. For example, see May, op. cit. supra note 136, secs. 24-27. See Note (1940) 28 Ky. L..J. 237. Cf. Note (1939) 27 Ky. L. J. 229.

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