Detecting Mens Rea in the Brain

38 Pages Posted: 30 Apr 2020

See all articles by Owen D. Jones

Owen D. Jones

Vanderbilt University - Law School & Dept. of Biological Sciences

Read Montague

Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute

Gideon Yaffe

Yale Law School

Date Written: April 29, 2020

Abstract

What if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?

If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes.

We combined advanced functional brain-imaging technology with new artificial intelligence tools to see if the brain activities during knowing and reckless states of mind can ever be reliably distinguished.

As our experiment indicates, the answer is Yes. So here we provide an overview of our brain-scanning experiment, discuss important implications, and detail several necessary precautions, so our results won’t be over- or mis-interpreted.


Keywords: mens rea, criminal law, mental states, responsibility, culpability, punishment, neuroscience, Model Penal Code, knowing, reckless, fMRI, brain, brain states, brain imaging, brain scan, decision making, cognitive, psychology, neurolaw, law and neuroscience, cognitive

JEL Classification: D87, D81, K14, C91

Suggested Citation

Jones, Owen D. and Montague, Read and Yaffe, Gideon, Detecting Mens Rea in the Brain (April 29, 2020). 169 University of Pennsylvania Law Review (2020 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3587883

Owen D. Jones (Contact Author)

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

Read Montague

Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute ( email )

2 Riverside Circle
Roanoke, VA 24016
United States
540-526-2000 (Phone)

HOME PAGE: http://research.vtc.vt.edu/employees/read-montague/

Gideon Yaffe

Yale Law School ( email )

127 Wall St
New Haven, CT 06511

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