Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt

94 Pages Posted: 3 May 2019

Date Written: March 31, 2019


How do jurors construe and apply facts and law to decide the point at which a defendant’s thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the black box of the jury room leaves the legal system largely in the dark about the answers.

Shining an empirical light on this domain, this Article employs tools of psychology to investigate how lay decisionmakers construe and apply legal standards for criminal attempt — a doctrine that imposes liability when a defendant intends and initiates a crime but does not successfully complete it. There are two dominant standards for the act element of attempt, but both are vague and ambiguous in defining the point at which liability attaches. Jurors are thus implicitly required to determine not only whether the defendant’s conduct has met the threshold for criminal attempt, but also where that legal threshold lies. The fundamental question of how lay decisionmakers without legal training are likely to execute this cognitively challenging task has never been empirically tested.

To fill this practical and methodological gap, I present the results of three original experimental studies on lay constructions of attempt law. My findings uncover striking disconnects between legal expectations and lay determinations of criminal attempt. Contrary to legislative design, the common law’s theoretically more defense-friendly “proximity” test (which draws the line of attempt liability closer to completion of the intended crime) emerges as more prosecution-friendly in lay applications than the Model Penal Code’s “substantial step” test (which theoretically seeks to expand attempt liability). The proximity test also appears to be more susceptible to bidirectional biases that lead to discriminatory legal outcomes.

Drawing upon psychology theory to explain these findings, I propose that the linguistic framing of the proximity test may unconsciously activate a sense of criminal “nearness” that anchors decisionmakers to harsher outcomes. The language of the proximity test may also be more likely to invoke a sense of threat, which can activate stereotypes that bias decisionmaking based on legally extrinsic factors, such as the defendant’s implied religion and the type of crime he is charged with attempting.

This Article’s findings challenge the legal community’s established understandings of attempt law, and also speak to lay constructions of criminal liability more broadly by providing new insights into how jurors may interpret the act requirement of a criminal offense in light of its mental state requirement. Furthermore, by illustrating how lay-legal disconnects can inadvertently undermine legislative intent and how the language of the law itself can trigger unfair prejudice, the results bear implications for any area of law in which jurors are tasked with applying opaquely defined legal standards.

Having empirically identified potential doctrinal and cognitive entry points for legal misunderstanding and bias in lay adjudication, I then suggest some novel steps that the legal system could consider taking to address these risks. My proposals entail rethinking how legislatures formulate legal standards, how courts convey these standards to jurors, and how jurors deliver their verdicts. I conclude by highlighting some key psychological and doctrinal directions for future research. Empirically unveiling the psychology of how lay decisionmakers construct legal liability, and drawing upon these insights to help jurors better understand the law, could unfurl promising new pathways toward more informed and fair decisionmaking in the justice system.

Keywords: criminal attempt, criminal law, psychology, bias, jury decision making, experimental legal scholarship, empirical legal studies

Suggested Citation

Sood, Avani Mehta, Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt (March 31, 2019). Stanford Law Review, Vol. 71, March 2019, Available at SSRN:

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