Skip to main content
Part of complete coverage from

Was Tracy Morgan crash a crime or accident?

By Danny Cevallos
updated 12:07 PM EDT, Tue June 10, 2014
Actor Tracy Morgan is in critical condition after a six-vehicle accident in New Jersey early Saturday, June 7, authorities said. The former "Saturday Night Live" cast member and "30 Rock" star was riding in a limo bus when the accident occurred. Actor Tracy Morgan is in critical condition after a six-vehicle accident in New Jersey early Saturday, June 7, authorities said. The former "Saturday Night Live" cast member and "30 Rock" star was riding in a limo bus when the accident occurred.
HIDE CAPTION
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
Tracy Morgan's comedy career
<<
<
1
2
3
4
5
6
7
8
9
10
11
>
>>
STORY HIGHLIGHTS
  • Danny Cevallos: Trucker in Tracy Morgan crash charged with death by auto, assault by auto
  • In N.J. vehicular homicide from reckless driving
  • He says state must show conscious disregard of risk
  • Cevallos: Assault charge defines culpability based on severity of injuries

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Truck driver Kevin Roper has been charged with death by auto and four counts of assault by auto in connection with the crash last weekend that killed comedian James McNair and injured comedian Tracy Morgan.

The question has arisen: Why was he charged with death by auto and aggravated assault before we even know how he was driving? In this sort of crash, what makes the difference between an accident and a crime?

Danny Cevallos
Danny Cevallos

The answers lie in the criminal code.

Homicide

Roper has been charged with "death by auto" in connection with the killing of James McNair. In New Jersey, homicide as a crime is divided into three different categories: murder, manslaughter and -- in a category by itself -- death by auto. Vehicular homicide is causing a death by driving a vehicle or vessel "recklessly."

There are two elements hidden in that definition. First, causation: The defendant has to have caused the death. It must be shown that the defendant caused the crash, the crash caused the death, and that the victim's death was foreseeable. The concept of recklessness, however, is a little more difficult to grasp. Recklessness and negligence are often spoken of together, but they are two very different points on a "mens rea" (state of mind) spectrum.

Criminal negligence is the least blameworthy state of mind. It's an "objective" standard, which means that we simply ask if an ordinary, reasonable person would have done the same act -- the act that created the risk in the first place. The prosecution doesn't have to prove that the defendant actually knew better, just that he should have known better.

Recklessness is totally different. Both the negligent person and the reckless person create a risk of bodily injury, but the reckless person does so in conscious disregard of that risk. So, the state must prove beyond a reasonable doubt that this defendant's driving created a substantial and unjustifiable risk of bodily injury. With recklessness, the state must also prove that the defendant consciously disregarded this risk, which was a gross deviation from what a reasonable person would have done.

So how on earth does a prosecutor get into a defendant's brain to know what he was thinking at the moment of impact? The truth is that we never know for sure what a defendant actually thought -- unless, of course, the defendant tells us what he thought.

Driver: Tracy Morgan screamed in crash
Actor injured in multi-vehicle crash
Former 'SNL' star in intensive care

Often defendants give statements or admissions to the police that can be introduced against them in court. While it's true that hearsay (what the person told someone else) is supposed to be inadmissible, the admission of a criminal defendant is an exception to this rule. Of course, if a confession is obtained through compulsion or coercion, it is considered unreliable, and is inadmissible. But, as long as the state can prove conclusively that a confession was made voluntarily, it will be admissible.

But how often does a driver admit to police "I drove recklessly?" Not often. Therefore, the law also permits us to draw inferences about a person's state of mind, based just on their conduct. In fact, certain behavior is specifically considered reckless by the law. And that's where this defendant may find his words come back to haunt him -- even if he never uttered the words "reckless" to the police.

New Jersey's criminal code has this to say: "[p]roof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly."

The easiest way to find out a driver was dozing off is if he admits it. Since the defendant in this crash was alone, only he would be able to tell police if he was asleep. Even an offhand comment to investigators about "drifting off" would have dire consequences, because it all but establishes a major part of the case against him.

The 24-hour alternative could be proved with circumstantial evidence, such as records, communications, or even witness testimony. Either way, the state would have the burden of proving sleep. If the defendant admits to dozing off, he's saved the state the inconvenience of its burden. See why criminal defense attorneys are always begging clients to not try to talk their way out of trouble?

This kind of homicide is a second-degree offense, punishable by up to 10 years in state prison, and there is a presumption of incarceration. This means if he's convicted, he's probably going to prison.

Assault

Roper has also been charged with "assault by auto" in connection with the other injuries caused. Assault by auto also has the recklessness standard, but here the seriousness of injury also guides the degree of the crime charged. Assault by auto is a crime of the fourth degree if serious bodily injury results.

On the other hand, if only "bodily injury" results, it is only a disorderly persons offense. It's interesting that criminal statutes define culpability in part by the injuries suffered, but in this case, the "seriousness" of the bodily injury -- Tracy Morgan was left in critical condition, for example -- is apparent, which is why the state has charged Roper with a fourth-degree offense. This is punishable by up to 18 months in state prison.

Ultimately, for both assault and death by auto, the prosecution must prove reckless behavior beyond a reasonable doubt. If Roper made statements or admissions to the police about falling asleep at the wheel, those statements could dramatically alter the course of the prosecution against him, potentially conceding a major part of the state's case against him.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 3:50 PM EDT, Mon August 25, 2014
Julian Zelizer says it's not crazy to think Mitt Romney would be able to end up at the top of the GOP ticket in 2016.
updated 4:52 PM EDT, Mon August 25, 2014
Roxanne Jones and her girlfriends would cheer from the sidelines for the boys playing Little League. But they really wanted to play. Now Mo'ne Davis shows the world that girls really can throw.
updated 12:29 PM EDT, Mon August 25, 2014
Peter Bergen and Emily Schneider say a YouTube video apparently posted by ISIS seems to show that the group has a surveillance drone, highlighting a new reality: Terrorist groups have technology once only used by states
updated 5:04 PM EDT, Mon August 25, 2014
Kimberly Norwood is a black mom who lives in an affluent neighborhood not far from Ferguson, but she has the same fears for her children as people in that troubled town do
updated 5:45 PM EDT, Fri August 22, 2014
It apparently has worked for France, say Peter Bergen and Emily Schneider, but carries uncomfortable risks. When it comes to kidnappings, nations face grim options.
updated 1:27 PM EDT, Tue August 26, 2014
John Bare says the Ice Bucket Challenge signals a new kind of activism and peer-to-peer fund-raising.
updated 8:31 AM EDT, Fri August 22, 2014
James Dawes says calling ISIS evil over and over again could very well make it harder to stop them.
updated 9:05 PM EDT, Sat August 23, 2014
As the inquiry into the shooting of Michael Brown continues, critics question the prosecutor's impartiality.
updated 6:47 PM EDT, Fri August 22, 2014
Newt Gingrich says it's troubling that a vicious group like ISIS can recruit so many young men from Britain.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 7:03 AM EDT, Fri August 22, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 8:23 AM EDT, Fri August 22, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
updated 5:52 PM EDT, Mon August 18, 2014
Ruben Navarrette notes that this fall, minority students will outnumber white students at America's public schools.
updated 5:21 PM EDT, Tue August 19, 2014
Humans have driven to extinction four marine mammal species in modern times. As you read this, we are on the brink of losing the fifth, write three experts.
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT