"Which One of You Did It?" Criminal Liability for "Causing or Allowing" the Death of a Child

Abstract

The English parliament recently enacted legislation to solve the problems inherent in prosecuting multiple defendants in a child homicide case. Part II of this article analyzes how current U.S. criminal law addresses the problem of securing a homicide conviction where multiple defendants are accused in a child's non-accidental death. Part III sets forth the English response: a statute that includes (1) a new substantive crime; (2) a permissible negative inference against a defendant who fails to account for the nonaccidental death of a child for whom he or she is responsible; and (3) delay of a motion to dismiss for failure to establish a prima facie case until after the defense has been presented or the jury has been allowed to draw the negative inference. The English response in light of U.S. law is analyzed, and its efficacy in meeting the prosecutor's evidentiary problems is evaluated. The article concludes that the English response should be adopted here, despite the controversial proposal that the jury in such a case be allowed to draw a negative inference against a defendant who bears responsibility for a child, who fails to account for that child's non-accidental death.