Matthew Ginther, Francis X. Shen, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, and Kenneth W. Simons, Decoding Guilty Minds, 71 Vand. L. Rev. 241 (2018).
A central tenet of Anglo-American penal law is that in order for an actor to be found criminally liable, a proscribed act must be accompanied by a guilty mind. While it is easy to understand the importance of this principle in theory, in practice it requires jurors and judges to decide what a person was thinking months or years earlier at the time of the alleged offense, either about the results of his conduct or about some elemental fact (such as whether the briefcase he is carrying contains drugs). Despite the central importance of this task in the administration of criminal justice, there has been very little research investigating how people go about making these decisions, and how these decisions relate to their intuitions about culpability. Understanding the cognitive mechanisms that govern this task is important for the law, not only to explore the possibility of systemic biases and errors in attributions of culpability but also to probe the intuitions that underlie them.
In a set of six exploratory studies reported here, we examine the way in which individuals infer others’ legally relevant mental states about elemental facts, using the framework established over fifty years ago by the Model Penal Code (“MPC”). The widely adopted MPC framework delineates and defines the four now-familiar culpable mental states: purpose, knowledge, recklessness, and negligence. 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. However, our results also indicate that subjects’ intuitions about the level of culpability warranting criminal punishment diverge significantly from prevailing legal practice; subjects tend to regard recklessness as a sufficient basis for punishment under circumstances where the legislatures and courts tend to require knowledge.