Academic journal article Vanderbilt Law Review

Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt

Academic journal article Vanderbilt Law Review

Decoding Guilty Minds: How Jurors Attribute Knowledge and Guilt

Article excerpt


All across America, every day, we ask jurors to decide what some stranger, who stands accused of criminal behavior in the past, was thinking at the time of his alleged crime. That's hard to do. And despite the fact that the task is ubiquitous, and crucial to the government's legitimacy in depriving citizens of physical liberty, the ways that jurors actually impute mental states to defendants is almost entirely unknown. If jurors aren't operating the way the legal system assumes they are, then gross injustices-wrongful convictions and wrongful acquittals-may be pervasive.

Cognitive science has provided some clues. We have learned some of the cognitive mechanisms at play when a person attempts to infer another's state of mind and intentions.3 And these "theory of mind" studies have even begun to uncover the neural foundations for taking the perspective of another.4 Yet the law's interest, more specifically, is in how potential jurors attribute mental states to defendants while operating under established legal frameworks. Little empirical research has addressed that issue.5

The legal frameworks are quite specific. As most readers will recall, statutes typically require both a bad act (actus reus) and a culpable mental state (mens rea) for criminal liability to attach. Further, most states follow the Model Penal Code's ("MPC") approach of using a hierarchy of culpable mental states (which correspondingly calibrate the crime committed and the punishment earned). Although state implementations vary somewhat, the MPC's mental state hierarchy includes these: purposeful, knowing, reckless, and negligent.6

A 2011 article published by several of us cut initial inroads into how jury-eligible subjects applied the MPC framework to mens rea determinations. In that study-Sorting Guilty Minds7-we provided subjects with short written criminal scenarios in which an interior sentence provided a transparent window into the mental state of a harm-causing protagonist. For instance, when the actor was reckless, we told subjects that: "The offender was aware of a substantial risk that his actions would cause the victim's death." We then asked subjects, in various interconnected experiments, either to sort these different mental states by MPC categories or instead to simply choose appropriate punishment amounts.

Those experiments revealed two troubling things. First, although subjects could appreciate the differences in language that communicated a blameless actor compared to one acting with purpose to cause a harmful result, subjects had much more trouble distinguishing between negligent, reckless, and knowing actors. Second, the punishments subjects imposed suggested they do not see any consistent moral distinction (which law often assumes) between reckless and knowing actors.8

As with any groundbreaking research, Sorting Guilty Minds raised as many questions as answers. Two of those unanswered questions are central to the new research and results reported here. First, how do subjects impute mental states when they are not given a transparent window into the thoughts of defendants? Second, how do subjects map mental states, as they have been defined by the MPC, onto judgments about criminal culpability?

The six new experiments reported here, generously funded by the MacArthur Foundation Research Network on Law and Neuroscience,9 provide the first rigorously empirical answers to those questions. Each experiment sheds important new light on how juryeligible subjects actually perform the mind-reading tasks our criminal justice system assigns to them.

For example, our studies reveal that, with little to no training, jury-eligible Americans can apply the MPC framework in a manner that is largely congruent with the basic assumptions of the MPC's mental state hierarchy. At the same time, however, our results also provide cause for concern. For instance, subjects' intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal assumptions and practice, because subjects tend to regard recklessness as a sufficient basis for punishment even under circumstances in which the legislatures and courts tend to require knowledge. …

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