The Neuropsychology of Justifications and Excuses: Some Cases from Self-Defense, Duress, and Provocation

Abstract

Writing in 1984, Professor Greenawalt described cases on the excuse/justification border as “perplexing.” He concluded that two of the most frequently articulated reasons for distinguishing between justifications and excuses - warranted versus unwarranted conduct, objective and general versus subjective and individual - are not as descriptively clean as they sometimes purport to be. The “conceptual fuzziness” that Greenawalt documents is inherent in the nature of the acts themselves; they are neurobiologically indistinct. Justifications and excuses in the boundary cases trigger both our emotional and cognitive processing areas almost simultaneously. The emotions tend precede the cognitive but only long enough to focus attention on the immediate threat. The conceptual blur will continue as long as our jurisprudence categorizes rigidly conduct that exists only on a continuum. This is not a new problem. The law tends to break down into categories - guilty or not guilty, for example. But the world is not binary; it is continuous and categorical thinking tends to distort our view of the world. The drafters of the Model Penal Code’s mens rea provisions, which divide into four categories and which the drafters concede exist only on a continuum and cannot be rationally determinate without question-begging, constitute implicit recognition of the way in which our control functions actually operate. It is time to acknowledge that these problematic excuse/justification cases defy categorization and thereby eliminate the confusion by adopting an advertently hybrid defense.