Burden of proof too high for criminal charges in Berkeley tragedy

District attorney’s investigation improves chances for families in US civil legal actions

The decision by a US district attorney not to bring charges over last summer’s fatal balcony collapse closes the door on a criminal prosecution, but widens the opportunity for the civil actions being taken by the families of the bereaved and injured.

While the families want justice done for the six students killed in the June 16th tragedy in Berkeley and the seven survivors, there were concerns that a finding of criminal negligence could provide a shield for more than 30 defendants being sued in California civil courts behind which they could hide to avoid self-incrimination.

The local district attorney Nancy O'Malley of Alameda County clearly did not wish to take actions that would have jeopardised the civil actions by the families.

Given the future medical needs of the survivors and the potential multi-million dollar damages that might be in play in the civil actions, a finding of criminal negligence could allow the professional indemnity insurers supporting the building’s contractors, subcontractors, owners and managers to walk away.

Ms O'Malley and her team of investigators based in neighbouring Oakland, led by chief assistant district attorney Kevin Dunleavy, for almost nine months examined whether any actions carried out during the construction of the fourth-floor balcony in 2005 and 2006 gave rise to a crime being committed.

Reasonable doubt

The burden of proof for a criminal prosecution is very high. To meet the criminal standard, the California district attorney had to find - beyond a reasonable doubt - gross or reckless conduct akin to disregard for human life, and that the deadly consequence of those actions were reasonably foreseeable.

In other words, an individual or company would have to have evidently known what they were doing was dangerous and potentially fatal, but did it anyway.

Using outside industry experts in structural engineering, waterproofing and architecture, the district attorney’s investigators found the primary reason the balcony collapsed was because water became trapped or “encapsulated” in the balcony deck during construction in late 2005 and during 2006.

They found a number of contributory factors were involved, and that responsibility was spread widely among parties involved in the construction and maintenance of the building.

The factors included the type of material used and the weather at the time of construction. Subcontractors used sheets of oriented strand board, commonly called OSB, a less expensive alternative to plywood, which was permitted by the Californian building code.


There was unseasonably wet weather when the balcony was being built. The deck was exposed to 12 inches of rainfall in December 2005, almost twice the average at that time of year, and in March 2006 there were 9.4 inches, almost three times the usual level. The water-damaged material did not dry out, as it was enclosed behind a stucco encasing and was not properly ventilated.

The district attorney’s experts believe the water seeped down through the layers of OSB that were not visible due to the stucco layer.

Destructive testing of the remnants of the balcony showed the water seeped down from the OSB layers into the supporting wood joists that rotted and eventually gave way.

There are complicating factors too. A City of Berkeley building inspector signed off on the nail pattern on the OSB and the waterproofer hired an outside consultant, making it hard to show there was gross negligence on a criminal level.

The investigation found the balcony was not built properly but there was not enough evidence to pursue one person or company, at least not on criminal charges.

“There was a lot of contributory negligence that would lead to a civil action,” Dunleavy told The Irish Times.

US lawyers for 12 of the Berkeley families said that from the outset, most legal experts did not expect Ms O’Malley to bring criminal charges given the high burden of proof, but said her investigation would “benefit the bereaved families and injured students as they now prosecute their civil lawsuits in earnest”.

The burden of proving negligence in a civil action will be considerably lower.