The Language of Mens Rea

46 Pages Posted: 9 May 2014 Last revised: 21 Oct 2014

Matthew R. Ginther

Vanderbilt University - Law School; Vanderbilt University - Neuroscience Graduate Program

Francis X. Shen

University of Minnesota Law School

Richard J. Bonnie

University of Virginia - School of Law

Morris B. Hoffman

Second Judicial District Court Judge, State of Colorado

Owen D. Jones

Vanderbilt University - Law School & Dept. of Biological Sciences

Rene Marois

Vanderbilt University - Department of Psychology
Center for Integrative and Cognitive Neuroscience

Kenneth W. Simons

University of California, Irvine School of Law

Date Written: October 19, 2014

Abstract

This article answers two key questions. First: Do jurors understand and apply the criminal mental state categories the way that the widely influential Model Penal Code (MPC) assumes? Second: If not, what can be done about it?

In prior work we challenged numerous assumptions underlying the use of the MPC mental state architecture, which divides guilty minds into four kinds: purposeful, knowing, reckless, and negligent. Our experiments showed that subjects had profound difficulty categorizing some of the mental states, particularly recklessness. And, when asked to punish, subjects punished knowing crimes and reckless crimes indistinguishably. (“Sorting Guilty Minds,” 86 NYU Law Review 1306 (2011) at http://ssrn.com/abstract=1746107

The new experiments we describe here extend those prior findings in important ways. For example, we reveal the degree to which a person’s ability to grasp and apply the MPC mental states is susceptible to variations in the language used to define and communicate them. Specifically, our results demonstrate that exactly how the legal system communicates the mens rea criteria is surprisingly crucial.

The extreme sensitivity of subjects to the language of mens rea may have troubling implications for past defendants, as well as for future ones. Because even small changes in phrasing can produce significant differences in juror evaluation of criminal cases, substantial miscarriages of justice may ensue. Our results consequently suggest the need for a critical reexamination of the substantial divide between the expectations and assumptions of the MPC, on one hand, and empirical reality, on the other. This divide is especially meaningful and worrisome given the unparalleled influence of the MPC in our state and federal criminal codes.

Keywords: Mental states, criminal law, Model Penal Code, MPC, empirical, punishment, sentencing, blame, culpability, mens rea, purposeful, knowing, reckless, negligent, responsibility, crime, criminology, retribution, just deserts, blameworthiness, intentionality, law and psychology, juror decision making

Suggested Citation

Ginther, Matthew R. and Shen, Francis X. and Bonnie, Richard J. and Hoffman, Morris B. and Jones, Owen D. and Marois, Rene and Simons, Kenneth W., The Language of Mens Rea (October 19, 2014). 67 Vanderbilt Law Review 1327 (2014); Vanderbilt Public Law Research Paper No. 14-16; Minnesota Legal Studies Research Paper No. 14-29. Available at SSRN: https://ssrn.com/abstract=2432699

Matthew R. Ginther (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

Vanderbilt University - Neuroscience Graduate Program ( email )

465 21st Avenue South
Nashville, TN 37232
United States

Francis X. Shen

University of Minnesota Law School ( email )

Minneapolis, MN
United States

Richard J. Bonnie

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Morris B. Hoffman

Second Judicial District Court Judge, State of Colorado ( email )

Denver, CO
United States

Owen D. Jones

Vanderbilt University - Law School & Dept. of Biological Sciences ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

HOME PAGE: http://law.vanderbilt.edu/bio/owen-jones

Rene Marois

Vanderbilt University - Department of Psychology
Center for Integrative and Cognitive Neuroscience ( email )

Nashville, TN 37240
United States

Kenneth W. Simons

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

Paper statistics

Downloads
330
Rank
73,701
Abstract Views
1,990