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 12:50 PM EDT, Tue July 29, 2014
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
updated 7:56 AM EDT, Mon July 28, 2014
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
updated 2:22 PM EDT, Sat July 26, 2014
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
updated 8:51 AM EDT, Mon July 28, 2014
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
updated 2:52 PM EDT, Mon July 28, 2014
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
updated 2:31 PM EDT, Mon July 28, 2014
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
updated 2:50 PM EDT, Mon July 28, 2014
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
updated 12:35 PM EDT, Mon July 28, 2014
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
updated 11:55 AM EDT, Sat July 26, 2014
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
updated 2:22 PM EDT, Sun July 27, 2014
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
updated 6:25 PM EDT, Thu July 24, 2014
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
updated 11:10 AM EDT, Fri July 25, 2014
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
updated 11:33 AM EDT, Sat July 26, 2014
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
updated 8:45 AM EDT, Fri July 25, 2014
John Sutter responds to criticism of his column on the ethics of eating dog.
updated 9:02 AM EDT, Fri July 25, 2014
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
updated 2:50 PM EDT, Fri July 25, 2014
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
updated 2:03 PM EDT, Thu July 24, 2014
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
updated 9:49 AM EDT, Thu July 24, 2014
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
updated 6:05 PM EDT, Wed July 23, 2014
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
updated 7:42 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 2:53 PM EDT, Thu July 24, 2014
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
updated 9:17 AM EDT, Thu July 24, 2014
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
updated 12:37 PM EDT, Thu July 24, 2014
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
updated 10:13 AM EDT, Thu July 24, 2014
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
updated 12:30 PM EDT, Wed July 23, 2014
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
updated 10:08 AM EDT, Wed July 23, 2014
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT