Baltimore Murder Case Illustrates Difficulty In Proving Criminal Negligence

The media is paying close attention to the criminal trial in Baltimore, Maryland involving the death of Freddie Gray. The first Baltimore police officer charged is William Porter. Several charges have been filed, but one alleges that the officer was "negligent" in failing to immediately call a medic to the scene when Gray indicated that he required medical care. Another charge involving negligence involves the failure to properly restrain Gray during transport.

Typically, when prosecutors file criminal charges against a defendant, the crime involves certain elements. Elements are essentially a list of requirements of proof of guilt. In many cases, a criminal charge involves proving that the defendant did some affirmative act, whether it be stealing, assaulting, or intentionally engaging in some behavior.

At least some of the charges here involve different elements. The charges involving "negligence"in failing to do something, as opposed to doing something wrong. In addition, the prosecutors will have to show that this failure to take action actually resulted in Gray's death.

Failure to act allegations are much more common when somebody makes a civil personal injury or wrongful death claim seeking compensation for the loss. For example, when we represent a personal representative making a claim on behalf of the estate of a person killed in an auto collision, we are often alleging that the other driver "failed" to stop, or "failed" to keep a proper lookout. In addition to only having to show that this lack of action more likely than not caused an injury, or even death, it is much easier to contemplate holding somebody financially accountable if they fail to act reasonably in a civil case.

However, the criminal charges against Porter, if proven, will result in significant prison time.  A jury might be more hesitant to hold someone criminally accountable for negligent behavior, but in this heated political environment, anything is possible.

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