"Punishable guilt requires that bad thoughts accompany bad acts. For this reason, we regularly ask jurors to infer the past mental state of a person they do not know as he acted in ways they did not see. Although this is difficult enough, the heavily influential Model Penal Code (MPC) demands even more. It requires that jurors sort defendants’ mental states into one of four specific categories, which in turn can define the nature of both the crime and the punishment.
The MPC therefore assumes that average people either naturally do – or at least can, when instructed – sort mental states into these four categories with reasonable accuracy. It also assumes that average people will rank order these categories of mental state, by increasing amount of punishment, in the same sequence that the MPC prescribes." - From the abstract, Sorting Guilty Minds, 2011.
So the question is: can the ordinary person accurately assess the difference between the narrow, but very distinct, choice of mental states when determining culpability. This paper represents the first time an experimental design has been applied to test the validity of culpability assumptions as laid out by the 50 year old Model Penal Code. The four mental states jurors are often called upon to determine are 1) purposeful; 2) knowing; 3) reckless; and 4) negligent. Researchers found that, "The bottom line is that in almost all of our experimental conditions our subjects robustly behaved just as the MPC assumes they would, with or without assisting jury instructions. The one exception is at the boundary between knowing and reckless conduct (see chart below), where subjects were profoundly unable to distinguish the categories, even with the benefit of jury instructions. Our results largely validate the MPC approach to culpability, although the difficulty at the knowing/reckless boundary suggests some reforms, either in redefining those categories or, more aggressively, in abandoning the distinction between them, at least in homicide cases, where the distinction can have such enormous consequences."
The authors finally suggest, "If the knowing/reckless findings reported here are confirmed in subsequent studies, and if we as a society value treating like defendants and mental states similarly (or at least nonarbitrarily), then we need to do a better job of defining these two categories, without introducing new confounds with the other categories. If better definitions don’t solve the problem we should seriously consider abandoning the distinction between knowing and reckless, at least in homicide cases, where that supposed distinction continues to have enormous legal impacts in most jurisdictions."
The point is fair enough, though Thomas Naddlehoffer was swimming in the same pool in 2006, when he wrote Bad Acts, Blameworthy Agents, And Intentional Actions: Some Problems for Juror Impartiality highlighting Mark Alicke's affective model of blame attribution -the Culpable Control Model (CCM). In his work, Nadelhoffer offered that "...perhaps there is an even more basic sort of partiality that occurs when jurors are asked to make judgments concerning a defendant’s mental state—especially when the crime in question is a serious one". Shen et al. recognize the lack of research addressing juror decision making on mental states. For instance, I wonder if making such biased mistakes when sorting mental states is correlated to the seriousness of the crime?
Shen, Francis X., Hoffman, Morris B., Jones, Owen D., Greene, Joshua D. and Marois, Rene, Sorting Guilty Minds (February 23, 2011). New York University Law Review, Vol. 86, 2011; Vanderbilt Public Law Research Paper No. 11-3. Available at SSRN: http://ssrn.com/abstract=1746107 (Click-thru for full article.)
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