Colorado Manslaughter
(18-3-104 C.R.S.)

man in black, holding gun out and turned sideways

What is manslaughter?

Manslaughter is a less serious form of homicide than murder. You commit manslaughter when:

  • You recklessly causes the death of another person; or
  • You intentionally cause or aid another person to commit suicide.

Under section 18-3-104 C.R.S. of the Colorado criminal code, punishment for Colorado manslaughter can be anywhere from 2 to 6 years in prison (followed by 3 years mandatory parole) and a fine as high as $500,000, depending on the circumstances.

Fortunately, there are a number of defenses to Colorado manslaughter charges. These include (but are not limited to):

  • The killing was accidental, 
  • You were acting in self-defense or defense of someone else, 
  • You had diminished capacity (“insanity”),
  • You were the victim of mistaken identification, or 
  • The police violated your rights.

To help you better understand Colorado's manslaughter law, 18-3-104 C.R.S., our Colorado criminal defense lawyers discuss the following, below:

hand of knife-wielding man against a crowd in the background

1. How does Colorado law define manslaughter?

Section 18-3-104 (1) of the Colorado Revised Statutes (C.R.S.) provides:

A person commits the crime of manslaughter if:

  • (a) Such person recklessly causes the death of another person; or
  • (b) Such person intentionally causes or aids another person to commit suicide.

1.1. The legal meaning of “recklessly”

You cause a death recklessly when you act in a manner that involves a substantial and unjustifiable risk of death and although you are conscious of the risk, you nevertheless choose to engage in the action.1

To be guilty of reckless manslaughter, it is not necessary that you specifically intended to cause someone's death. Rather, it requires that a you knowingly engaged in conduct that created a substantial and unjustifiable risk of causing death.2

1.2. The difference between second degree murder, manslaughter and criminally negligent homicide

In Colorado, second degree murder, manslaughter and criminally negligent homicide are distinguished by:

  • Your intent, and
  • Your level of awareness of the risk of the death.

In second degree murder, the killing is intentional but not premeditated, and you know that death is practically certain as a result of your conduct.

For manslaughter, you are aware that there is a substantial and unjustifiable risk of death, but you nevertheless choose to engage in the risky conduct anyway.

If, on the other hand, through a gross deviation from the standard of reasonable care, you simply fail to perceive a substantial and unjustifiable risk of death and someone is killed as a result, you have committed criminally negligent homicide. 

  • Example: Albert and Barry are neighbors. Albert is sick of Barry's loud parties and decides to confront him. But he is afraid of Barry, so he takes his gun with him in case Barry comes after him and he needs to scare him off.
  • But Albert forgets that the gun is loaded and doesn't realize the safety is off. So when Barry punches Albert, Albert pulls out the gun and the gun goes off. Barry is killed. Albert cannot invoke self-defense since he started the confrontation. As a result, Albert could be guilty of criminally negligent homicide if the jury decides that waving around a loaded gun with the safety off is a gross deviation from the standard of reasonable care.
  • But… let's say that Albert knew the gun was loaded and the safety was off. He was aware of the risk that the gun could go off, but consciously chose to disregard it. This most likely bumps the crime up to manslaughter.
  • And if during the argument, Albert decided the fight was a good excuse to kill Barry, and he intentionally shot him, it is second-degree murder. 

1.3. “Heat of Passion” manslaughter is now second degree murder

Colorado used to classify “heat of passion” killings as a form of manslaughter. The stereotypical heat of passion killing is one that results when you come home from work early and find your spouse in bed with someone else. It is a killing that is not premeditated, but rather one that arises when you are substantially provoked by something that would arouse passion in a reasonable person.

Colorado now recognizes heat of passion killing as a form of second-degree murder. However, whereas most second degree murder is a class 2 felony, murder under the heat of passion is punished as a less serious class 3 felony.

1.4. Aiding a suicide

Colorado also considers it manslaughter when:

  • You intentionally cause another person to commit suicide, or
  • You aid a suicide by providing the means for encourage or assist another person to commit suicide.

“Aiding” suicide means you provide the means to commit suicide. If you actively perform the act which results in death, it is considered murder.3

1.4.1. Exception for medical care givers

You do not aid a suicide by withholding care or providing medication in according with:

  • An advanced medical directive,
  • A medical durable power of attorney,
  • A living will, or 
  • A cardiopulmonary resuscitation (CPR) directive.4

You are also not guilty of manslaughter if you are a medical caregiver with prescriptive authority or authority to administer medication who prescribes or administers medication for palliative care to a terminally ill patient with the consent of the terminally ill patient or his or her agent.5 However, this exception does not permit a medical caregiver to assist in a patient's suicide.

For purposes of Colorado's manslaughter statute:

  • (I) “Agent” means a person appointed to represent the interests of the terminally ill patient by a medical power of attorney, power of attorney, health care proxy, or any other similar statutory or regular procedure used for designation of such person.
  • (II) “Medical caregiver” means a physician, registered nurse, nurse practitioner, physician assistant, or anesthesiologist assistant licensed by this state.
  • (III) “Palliative care” means medical care and treatment provided by a licensed medical caregiver to a patient with an advanced chronic or terminal illness whose condition may not be responsive to curative treatment and who is, therefore, receiving treatment that relieves pain and suffering and supports the best possible quality of his or her life.

2. Colorado manslaughter penalties

Under Colorado 18-3-104 C.R.S., manslaughter can be punished by:

  • 2-6 years in prison, and
  • A fine of $2,000-$500,000.

3. Colorado manslaughter defenses

3.1. Accidental killing

If the killing was accidental and not the result of ignoring a substantial and unjustifiable risk of death, you are not guilty of manslaughter.

Accidental killings include (but are not limited to) hunting accidents, auto accidents by sober drivers, and deaths due to unknown hazardous conditions in the home that do not result from deviations from a reasonable standard of care.

3.2. Self-defense / defense of others

In Colorado you may legally use deadly physical force to defend yourself or someone else if:

  1. You reasonably believe a lesser degree of force to be inadequate AND
  2. You reasonably believe that:
  • You or another person is in imminent danger of great bodily injury or death; or
  • Someone else is about to use physical force during the commission of a burglary; or
  • Someone else is committing or appears to be about to commit, robbery or sexual assault;6; or
  • Someone has unlawfully entered your home and  committed – or intends to commit -- a crime in the dwelling and you reasonably believe that such person might use physical force against you or another occupant.7

Force is not legally justified, however, if:

  • You provoked the use physical force by someone else because you intended to kill the person or cause bodily injury; or
  • You were the original aggressor, unless:
    • You withdrew from the encounter,
    • You effectively communicated to the other person your intent to withdraw, and
    • The other person nevertheless continued or threatened the use of unlawful physical force.8

3.3. Diminished capacity / insanity

Under Colorado law, you are considered insane when as a result of a mental disease or defect:

  • You are incapable of distinguishing right from wrong with respect to the crime with which you are charged; or
  • That prevented you from forming a culpable mental state that is an essential element of a crime charged.

You cannot use the insanity defense, however, if your diminished capacity resulted solely from voluntary intoxication.

It is very difficult to meet the legal standard for insanity, which is not the same as the medical standard for mental illness. Simply suffering from a serious mental illness such as schizophrenia or bipolar disorder is not enough. You are only considered insane as a matter of law if, at the time of the killing, you satisfied one of the specific conditions set forth above.

A successful diminished capacity defense, therefore, requires a great deal of legwork as well as the testimony of medical experts to explain that you had no awareness of your actions at the time of a killing, or were unable to understand the consequences.

If you are claiming you are not guilty by reason of insanity, it is important to retain a Colorado criminal defense lawyer that has experience with mental health issues and is not afraid of the science.

3.4. Mistaken identification

Manslaughter cases frequently turn on eyewitness testimony. And yet even honest and well-meaning witnesses can make errors due to multiple factors, including:

  • Intentionally or unintentionally misleading questions from police and prosecutors,
  • The emotional stress of witnessing a crime,
  • The tendency to focus on a weapon rather than the person wielding it,
  • Unconscious biases,
  • Poor physical conditions (such as low lighting, obstructions, walls or noise) that make it difficult to see or hear what happened, and
  • The natural changing of memories with the passage of time and repetition.9

As a result of these and other factors, many researchers consider eyewitness testimony inherently unreliable.10 However, many people do not know this and eyewitness testimony from someone who appears confident and credible can create real problems for defendants.

Our experienced Colorado criminal attorneys have a number of proven techniques to counter unfavorable eyewitness testimony. These include (without limitation):

  • Engaging a skilled "eyewitness identification expert" to explain to the jury how and why memory can be unreliable;
  • Vigorous interviews and cross-examination of witnesses;
  • Challenging the procedures the police use for conducting line-ups and photo spreads; and
  • The use of experienced private investigators to locate additional witnesses and uncover inconsistencies in the prosecution's case.

3.5. Police misconduct

Police and prosecutors are subject to stringent rules and procedures in investigating and prosecuting crimes.

If the police or the prosecutor messes up, we can move to exclude evidence obtained as a result. Ways the police can violate your rights include (but are not limited to):

  • Planting evidence,
  • Perjury,
  • Failing to maintain chain of custody of evidence,
  • Obtaining a faulty search warrant,
  • Contamination of crime scene evidence,
  • Improperly conducted police line-ups,
  • Failure to read or observe your Miranda rights, or
  • An illegal search and seizure in violation of your rights under the Fourth Amendment to the U.S. Constitution.

Call us for help…

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If you or someone you know has been charged with a violent crime such as murder, manslaughter, homicide or assault, we invite you to contact us for a free consultation.

We treat our clients as individuals who are deserving of respect and a fair shake. We know that there are two sides to every story and that the prosecution doesn't always care about yours. But we do.

We represent clients accused of homicide and other serious felonies in Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and most other locations within Colorado.

To discuss your case with one of our caring Colorado criminal lawyers, fill out the confidential form on this page, or call us at our Denver home office. One of our Colorado homicide lawyers will get back to you quickly to discuss your case and possible defenses.

Our home office is located at:

Colorado Legal Defense Group
1400 16th Street
16 Market Square
Denver CO 80202

Legal references:

  1. Moore v. People, 925 P.2d 264 (Colo.1996); People v. Garcia, App.1999, 1 P.3d 214, modified on denial of rehearing, certiorari granted, affirmed 28 P.3d 340, rehearing denied; People v. Medina, App.2001, 51 P.3d 1006, rehearing denied, certiorari granted, affirmed 71 P.3d 973.
  2. Palmer v. People, 1998, 964 P.2d 524.
  3. People v. Gordon, App.2001, 32 P.3d 575, certiorari denied, denial of post-conviction relief affirmed 2008 WL 1821714, habeas corpus denied in part 2009 WL 1575324, habeas corpus denied in part 2010 WL 1790410.
  4. 18-3-104 (3) C.R.S.
  5. 18-3-104 (4) C.R.S.
  6. 18-1-704 (2) C.R.S.
  7. 18-1-705 C.R.S.
  8. 18-1-704 (3) C.R.S.
  9. Barbara Tversky and George Fisher, The Problem with Eyewitness Testimony, Stanford Journal of Legal Studies;  D. Kim Rossmo,
    Failures in Criminal Investigation,The Police Chief, October 2009.
  10. See, e.g., Gary Wells et al, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law and Human Behavior, Vol. 22, No. 6, 1998. 

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