My friend and I were discussing moral and legal aspects of an interesting hypothetical situation, but since neither of us are lawyers we would like to ask somebody here how it would be treated from the legal perspective. So here is our imaginary situation :

A person is driving an SUV, and suddenly sees somebody lying on the road and not moving, as if he is either dead or passed out or drunk sleeping. It is too late to break. The driver could make a split second decision : either to immediately turn the steering wheel to the side to avoid running over the person on the ground, in which case he would damage his SUV by going off-road and hitting various obstacles, (but the speed is not so high to threaten the life of the driver himself), or - simply run over the person believing he is already dead, so why not at least save the damage to the SUV. The driver (who is kind of scumbag), loving his SUV, decides that the guy on the ground is already dead and runs him over.

Now I will give some important "rules" in this case that I would like you to take as facts and answer as if they were true :

  • Once the person is run over with SUV, he is definitely dead now.
  • There is absolutely no way to establish forensically (or by any other means) whether the person was dead or passed out or drunk before he was ran over. (Lets forget that there is toxicology that could establish alcohol level and all that stuff - imagine simply that we just can't know whether he was dead already).
  • At the moment the person was ran over, he did not react in any way (in a sense that he did not scream or something similar, so we again, can not know whether he was already dead). There are no any kind of clues that suggest anything - how long has he been lying on the road, there are no alcohol bottles nearby, nobody knows him - he has no family/friends or anyone he called etc. - in other words again - we absolutely cannot establish or even guess in any way whether the person was already dead before being run over.
  • Driver explained perfectly honestly what happened, so the court/police/prosecutor know exactly what happened as I have described - they know everything you know reading this :)

So how would the driver be prosecuted for this "potential murder" ? If the court can not in any way establish whether the person was already dead or not, can driver be charged with murder ? Is there such thing as "potential murder" in law ? Or will the person be considered dead already, in which case the driver "just" mutilated the dead body of a man ?

Edit : some additional explanation about the question

Thank you all for great and detailed answers. Just if you were curious, this question relates to some thoughts of my friend and myself, related to abortion actually. This is how we were thinking : if science can not give us a definitive answer (the definite scientific proof that is universally agreed upon) when the fetus becomes alive (at what week), and it is allowed for us to perform abortion at 12th week, then the abortion is like running over a person on the road in the above question, because :

  • Once the abortion is performed, the fetus is definitely dead (or not alive).
  • We cannot in any way be sure (universally agree - beyond reasonable doubt as you professionally put it) whether he was alive or not before the abortion.

Therefore there is no crime in performing abortion while not knowing whether the fetus was alive before the abortion.

We were interested whether this would be something like "potential murder" as I called it in the question. Thanks to your answers I conclude that if it so happens that fetus was actually alive right before 12th week, than I guess something like "unproveable involuntary manslaughter" was committed since it can not be proven that fetus was actually alive (although it was) before abortion. This is equivalent in the question to running over alive person, who either passed out or was drunk, killing him, but without knowledge or evidence of him being killed. On the other hand, if fetus was not alive right before 12th week, that is equivalent to running over a guy that is already dead (or not alive), so no damage or crime whatsoever was done anyway.

  • If I remember correctly there was a law passed in a certain state which I cannot remember which stated that a driver may not be prosecuted for failing to brake when a person is standing in the middle of the road. This was in response to recent protests held by the black lives matter movement. – Rstew Jul 28 '17 at 1:18
  • liver temperature points to death within a 10 minute window around the accident? (it isn't much more accurate) – Trish Jan 7 at 16:45
  • For the abortion case a fetus is "alive" from the moment of conception -- it consists of living cells. But most surgery kills living cells. The question is when the fetus becomes a separate human being with the legal right not to be killed, and that is a matter of legal definition, not science. The hypothetical is interesting on its own, IMO. – David Siegel Jan 7 at 19:58


I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter.

So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it.

Civil suit for wrongful death

Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him").

Reckless driving charge

In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law:

[In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit.


In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor.

Misc links

https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html

A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412

  • Hey thanks for the answer, although i was satisfied with the original answer and was just about to tell you not to spend time on looking up the rest of it - it appears i am late for that :) but the addition is interesting anyway. – Mark Nathan Jul 28 '17 at 2:41

So, in very general terms, because this would depend on the location of the event. Let's say this incident occurred in the US. Now, it would still vary by state, but there are a few general requirements that almost all crimes require, and certainly all murder offenses require.

The first is mens rea, or a guilty mind. Depending on the specifics of the offense this can mean different things, usually that either: 1) a person intended to commit the crime, 2) they intentionally took risks which would probably lead to the crime as a result(recklessness), or 3) they unintentionally took risks which would probably lead to the crime as a result(negligence). In your hypothetical the person who ran over the guy (let's just call them the defendant) didn't intend to commit a murder, but facts could show that their actions were likely to cause the death of that person, intentionally or unintentionally.

Now, even if our defendant was reckless or negligent there are still two more elements. Actus reus, or actually committing the prohibited act, and causation which is causing the prohibited result (death of victim). Well, since your hypothetical has said that no one can know whether either of those are the case, those elements cannot be established.

Potential murder is not a crime, because it is not prohibited to not kill someone. Defendant must have actually done the prohibited act. Defendant must have actually caused the prohibited result. All three of these elements must be established beyond a reasonable doubt. So, assuming this is a perfectly just and honest criminal court and system, the prosecution would not be able to prove any of these beyond a reasonable doubt, or even by the civil standard of review, by a preponderance of the evidence. So, no. No crime.

Though I wonder what kind of conditions would make the Defendant unable to avoid a prone body. They could still be charged with a traffic offense.

  • Thans for a great and detailed answer as well – Mark Nathan Jul 28 '17 at 2:43
  • Potential murder is not a crime, because it is not prohibited to not kill someone. Defendant must have actually done the prohibited act. I'd guess that "attempted murder" is a crime. – ChrisW Jul 28 '17 at 9:11
  • 1
    A crime of "attempted X" generally involves intent to commit X, but here the driver had no intent to kill or even harm the person on the road. Some variety of "reckless endangerment" might apply, depending on the exact laws of the specific jurisdiction. – David Siegel Oct 23 '18 at 22:33

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