In western jurisprudence, the legal essence of the concept of a crime includes two components 1) some act in violation of the law, or actus reus and 2) what is called mens rea, literally a "guilty mind" or the mental aspect of the crime - intent. So, in order to convict a person of most crimes, the prosecution has to establish 1) that the person committed an illegal act, and 2) that s/he intended to commit the act.

The necessity of establishing intent ensures that people who maliciously plan and carry out a crime are treated more severely than those who commit a crime through negligence or recklessness. If, for example, I get in a car and purposefully run over a child because that child has annoyed me, I am certainly more guilty than if I run over that same child accidentally. Therefore, the concept of intent, and the necessity to establish intent protects us all from being prosecuted as if we intended to commit the harm done when we did not.. It is crucially important in Western legal systems.

But, some situations that fall in between the cold-blooded planning of a murder, and a complete accident. For example, suppose I drive through a school zone at 80 MPH, when the posted speed limit is 20MPH. I run over a child and kill it. Now, I have not intentionally killed a child. I have not sat and planned the crime, premeditated it, then carried it out. But, I am not completely without fault either, am I?

The legal system deals with this sort of situation through the concept of reckless disregard. This is conduct which demonstrates a conscious and willful disregard for the safety of others. It speaks to the state of mind of the perpetrator.

In this situation I should have known 1) that there are likely to be children crossing the road in a school zone, and 2) that driving at 80 mph in a school zone is likely to result in harm to children. If I then engage in this behavior, I demonstrate criminal recklessness and lack of concern for the safety of others. But such an action lacks planning and the intent to kill, or in legal terms, the malice aforethought required to charge murder.

If a prosecutor charged me with first-degree murder in such an instance, the jury (if it followed the law) would not be able to convict me, because the prosecution could not prove beyond a reasonable doubt that I intended to kill the child.

Now, there are some reasons why a prosecutor might charge first-degree murder even when s/he doesn't have the evidence to support the charge. At times, prosecutors do what is called "indicting high" which means charging the defendant with a crime more serious than the evidence supports in order to try to intimidate the person into plea bargaining. Also, at times, there are political reasons for indicting high - one of those is when the community is particularly upset about a crime (and this often happens when the killing of children is involved).

But, legally and ethically, the prosecutor should charge the defendant with the crime indicated by the evidence in the case, and the crime on which s/he thinks a jury will convict. To do otherwise would be irresponsible.

As Bill Lizanby of the District Attorney's Office commented about the recent case of Emily Melissa Whaley, the charges of manslaughter and attempted assault were consistent with the facts as they were known at the time. But, the investigation of the case continues. The facts will be presented to the grand jury and the final charge determined then.