Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability

Criminal liability for offenses like implied-malice murder, reckless manslaughter, and negligent homicide depends partly on the objective probability of harm resulting from conduct. Courts often articulate that objective probabilities of required harm must exist, yet theorists dispute whether such probabilities meaningfully determine lawfulness. Johnson argues that courts correctly recognize that probability of harm constitutes a critical factfinder task in criminal cases. The Model Penal Code provides a forgotten but central answer: probabilities calculated on the basis of what the actor knows—based on circumstances known to the actor—are objective in exactly the way criminal law requires. Johnson contends that courts implicitly measure objective probability using circumstances known to the actor, not all objective facts at the moment of conduct. If finders of fact considered all objective facts, they would always arrive at probability of either 1 or 0 depending on whether harm occurred, making the concept illusive and unhelpful. By contrast, a reasonable-person-centered approach measuring probability from a less-than-omniscient observer's perspective provides fair basis for determining justifiability and lawfulness. The article argues that circumstances known to the actor encompass or imply everything essential to the actor's perspective and provide fair basis for determining conduct justifiability. This framework resolves tensions between courts and legal theorists regarding objective probability's coherence in criminal law.

Topics: Criminal Procedure · Legal Theory · Evidence & Procedure

Keywords: objective probability · Model Penal Code · recklessness · implied-malice murder · criminal liability · knowledge · negligence