State v. Carman, 292 Neb. 207

Defendant Lyle J. Carman, driving a dump truck in stop-and-go highway construction traffic, rear-ended a slowed/stopped car; the car left the interstate, rolled, and the driver died.
Carman was tried in a bench trial and convicted under Neb. Rev. Stat. § 28-305 (unlawful act/involuntary manslaughter).
The district court identified the predicate unlawful acts as two traffic infractions: following too closely (§ 60-6,140) and driving too fast for conditions (§ 60-6,185).
Carman was acquitted of DUI, reckless driving, and careless driving. He argued the manslaughter charge was improper because the predicate acts were mere traffic infractions and/or because § 28-306 (motor vehicle homicide) was the appropriate statutory scheme.
On appeal the Nebraska Supreme Court considered whether traffic infractions (public welfare offenses lacking mens rea) can sustain a conviction under § 28-305, which codifies common-law manslaughter.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether traffic infractions lacking mens rea can serve as the unlawful act predicate for § 28-305 manslaughter	State: any unlawful act that proximately causes death suffices; prosecutor may elect manslaughter	Carman: traffic infractions are public welfare offenses without mens rea and thus cannot support § 28-305	Held: No. Traffic infractions (public welfare offenses without mens rea) cannot sustain § 28-305 manslaughter because manslaughter requires a predicate unlawful act with mens rea
Whether prosecutorial discretion to charge manslaughter instead of motor vehicle homicide saves the conviction	State: prosecutor may choose to charge under either statute for the same conduct	Carman: choice cannot convert a mens rea-less infraction into a felony manslaughter	Held: Prosecutorial discretion does not relieve the State of proving mens rea for the offense charged; charging choice alone cannot supply an element the State failed to prove

State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011) (discusses motor vehicle homicide as public welfare offense lacking mens rea)
Morissette v. United States, 342 U.S. 246 (1952) (silence in statute does not eliminate mens rea where common-law origins suggest intent required)
Staples v. United States, 511 U.S. 600 (1994) (public welfare offenses typically carry light penalties; felonies presumptively require mens rea)
People v. Campbell, 237 Mich. 424, 212 N.W. 97 (1927) (common-law rule: criminal responsibility requires negligence so great it imputs criminal intent)
State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986) (recognizes prosecutorial discretion to charge alternative offenses for the same act)