Abstract

A popular way to try to justify holding defendants criminally responsible for inadvertent negligence is via an indirect or ‘tracing’ approach, i.e. an approach which traces the inadvertence back to prior culpable action. I argue that this indirect approach to criminal negligence fails because it can’t account for a key feature of how criminal negligence should be (and sometimes is) assessed. Specifically, it can’t account for why, when considering whether a defendant is negligent, what counts as a risk should be assessed relative to the defendant’s evidence.