Journal of Cn‘miml Justice Vol. 20. pp. 107-120 (1992) 004%2352/w ss.00+ .

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All rights reserved. Printed in U.S.A. ccpight b 1992 Pclgunon Pnss hi.

INFERRING THE CRIMINAL MIND: TOWARD A BRIDGE

BETWEEN LEGAL DOCTRINE AND PSYCHOLOGICAL
UNDERSTANDING

LAURENCE J. SEVERANCE

Attorney at Law
Seattle, Washington 98 104

JANE GOODMAN and ELIZABETH F. LOFTUS

Department of Psychology
University of Washington
Seattle, Washington 98 195

ABSTRACT

Criminal law is concerned with defining when people commit prohibited acts accompanied by cul-
pable mental states (criminal intent, knowledge, recklessness, or negligence). An experiment focused
on how laypeople, asked to serve as “‘jurors,” interpret and apply legal instructions on the definitions
of culpable mental states. The results pinpoint differences between legal mental state definitions that
jurors are expected to apply in deciding criminal cases and laypersons’ understanding of those mental
states. Laypeople do not comprehend mental state distinctions that are difSerentiated in legal doctrine.
The results are discussed in terms of attribution theory, and practical suggestions are made that may
be useful to attorneys.

In virtually all United States jurisdictions, or “willful act.” In order to convict a defen-
criminal statutes require proof of two types dant, the Sixth Amendment to the United
of elements: (1) specified culpable mental States Constitution and the standards set forth
states, for example, criminal “intent” or by the United States Supreme Court in In t-e
“recklessness,” and (2) overt behavioral acts, Winship (1970) require each element of an
for example, an “unauthorized entry into a alleged crime, both a mental state element and
building” or “taking a car without permis- a behavioral element, to be proved beyond a
sion.” The mental state element is referred to reasonable doubt. Culpable mental states un-
as mens rea or “guilty mind,” while the be- accompanied by the requisite behavioral acts
havioral component is referred to as actus reus do not constitute crimes. Similarly, culpable

107
108 LAURENCE J. SEVERANCE, JANE GOODMAN and ELIZABETH F. LOFIllS

acts committed in the absence of a guilty an individual who commits a crime with “in-
mental state do not constitute crimes. For ex- tent” will generally be regarded as legally more
ample, a person riding in a stolen car without culpable than one who commits an act with
knowing it is stolen has not committed theft. criminal “knowledge,” “recklessness,” or
In trials by jury, the judge instructs jurors “negligence. ” Acts committed with criminal
on the law by enumerating the elements of “knowledge” are more serious than “reck-
the crime which must be proved in order to less” or “negligent” acts, and so forth. Crim-
convict and by defining each requisite ele- inal sanctions tend to be correspondingly
ment according to the law. However, even in graduated, so that crimes involving greater
cases in which there is no dispute over the degrees of mental culpability call for more
evidentiary facts central to the commission of severe penalties.
a crime, determination of the defendant’s
mental culpability in accordance with the le- The Present Research: An Overview
gal instructions may prove difficult for lay ju-
rors. Existing research on the effectiveness of The present research tested laypeople’s
jury instructions has shown that jurors fre- abilities to understand and apply legal defi-
quently experience difficulty comprehending nitions of four criminal mental states: “intent,”
and applying instructions on the law. (See, “knowledge,” “recklessness,” and “negli-
for example, Elwork, Sales, and Alfini [ 1977, gence. ” One purpose of this study was to
19821, Charrow and Charrow [ 19791, and identify more clearly how laypeople perceive
Severance and Loftus [ 19821.) Elwork, Sales, legally relevant mental states in the absence
and Alfini (1982) concluded that jurors mis- of legal definitions and the extent to which
understand about one-half of the instructions legal definitions are helpful in sharpening their
presented by judges. understanding of the legal concepts. We pre-
How jurors interpret and apply legal in- dicted that, in the absence of legal defini-
structions on culpable mental states is the fo- tions, most laypeople would have some dif-
cus of this article. A central theme is that the ficulty rank-ordering those mental states
law makes certain psychological assumptions according to the degree of culpability in-
about mental states that may not be assump- volved. We further hypothesized that, to the
tions made by jurors. Our general hypothesis extent that laypeople were asked to distin-
was that, to the extent that jurors’ assump- guish among legally relevant mental states or
tions or predispositions do not match the dis- were provided with instructions (legal defi-
tinctions made by law, jurors will experience nitions) that make these distinctions, their
difficulty in applying legal concepts and may abilities to order the concepts according to the
not apply the legal concepts in ways that have degree of culpability would be enhanced.
been assumed. A second purpose of the study was to ex-
amine the extent to which laypeople can ap-
ply legal definitions of mental states to reach
Legal Definitions qf Culpable Mental States a correct judgment about circumstances that
fall squarely within a given mental state def-
Many criminal codes incorporate a hier- inition. Subjects were presented with written
archical continuum of mental state elements fact summaries describing circumstances in
similar to that appearing in Table 1; those which one person caused harm to another. For
elements were taken directly from criminal each fact summary, there were four alterna-
statutes currently in use in the state of tive descriptions of the manner in which the
Washington. harm arose, corresponding to the four distin-
The descending hierarchy of “intent,” guished legal mental states of interest in this
“knowledge,” “recklessness,” and “negli- study. We hypothesized that subjects would
gence” reflects decreasing degrees of per- rank-order the relative legal culpability of the
sonal culpability or responsibility for behav- actors’ behaviors more accurately to the ex-
iors that accompany those mental states. Thus, tent that their personal understanding of the
 Inferringthe Criminal Mind 109

TABLE 1

HIERARCHY OF CRIMINAL MENTAL STATE ELEMENTS

Mental State Definition

Criminal Intent A person acts with intent or intentionally when acting with the
objective or purpose to accomplish a result which constitutes
a crime.
Criminal Knowledge A person knows or acts knowingly or with knowledge when
(1) he or she is aware of a fact, facts or circumstances or a
result described by law as being a crime; or (2) he or she
has information which would lead a reasonable person in the
same situation to believe that facts exist which facts are
described by law as being a crime.
[Acting knowingly or with knowledge also is established if a
person acts intentionally]
Criminal Recklessness A person is reckless or acts recklessly when he or she knows
of and disregards a substantial risk that a wrongful act may
occur and the disregard of such substantial risk is a gross
deviation from what a reasonable person would exercise in
the same situation.
[Recklessness is also established if a person acts intentionally
or knowingly]
Criminal Negligence A person is criminally negligent or acts with criminal
negligence when he or she fails to be aware of a substantial
risk that a wrongful act may occur and the failure to be
aware of that substantial risk is a gross deviation from the
standard of care that a reasonable person would exercise in
the same situation.
[Criminal negligence is also established if a person acts
intentionally or knowingly or recklessly]

mental states corresponded with the legal Washington, where this research was con-
definitions. ducted. Fourteen to seventeen subjects par-
ticipated in each cell of the experimental
design.

METHOD
Design and Procedure

Subjects Each subject was given one of three ver-

Subjects were forty-six undergraduate stu-
dents enrolled in introductory psychology
classes at the University of Washington, who
received class credit in return for their par-
ticipation in the research. Subjects were treated
in groups; however, each responded individ-
ually to task questions in a written booklet.
Subjects were eligible voters and hence avail-
able for actual jury duty within the state of
sions of a booklet that contained a number of
tasks to complete. In one version of the booklet
(“Own definition” condition), subjects were
asked to “Please define what the following
words mean to you, in your own words. Be
as accurate and complete as possible.” Be-
neath this instruction, the terms “criminal
knowledge, ” “criminal negligence,” “crimi-
nal intent, ” and “criminal recklessness” ap-
peared in random order, with adequate space
110 LAURENCE J. SEVERANCE. JANE GOODMAN and ELIZABETH F. LOFTUS

for each subject to record his or her response explanations provided. For example, the
to each term. foregoing incident was accounted for in these
In a second version of the booklet (“Legal four ways: (1) intent: the student who tossed
definition” condition), subjects were pro- the bottle was angry at seeing students from
vided with the full standard legal pattern jury the other school and wanted to get even for
instruction describing each of the four mental their team’s win; (2) knowledge: the student
states. The definitions were taken from the who tossed the bottle was aware that he was
Washington Pattern Jury Instructions for throwing it in the general direction of the
Criminal cases (Washington Supreme Court people who were hit, though he meant no
Committee on Jury Instructions, 1977), and harm; (3) recklessness: the student who tossed
they are shown in Table 1. In a third version the bottle was aware that, nearby, there was
of the booklet (“No definition” condition), a group of students from the other school, but
subjects were given no information about the because of his team’s loss, he didn’t really
mental states, nor was any definitional infor- care where the bottle landed; and (4) negli-
mation elicited from them. gence: the student was trying to get rid of the
Subjects in the “Own definition” and “Le- beer bottle before getting into his car and didn’t
gal definition” groups were asked to rank-or- realize the bottle would strike anybody, even
der the mental states to indicate the relative though crowds of people were all around.
degree of punishment or reprimand appro- Subjects ranked the four explanations by in-
priate to each by assigning to each mental state dicating the relative degree of punishment or
a number between I and 4, lower numbers reprimand warranted for each, with lower
designating those more deserving of punish- numbers indicating the most deserving of
ment and higher numbers designating those punishment and higher numbers designating
less deserving of punishment. Subjects worked the least deserving of punishment.
individually at their own pace.
After this initial task, the three groups were
treated identically. Each subject read three RESULTS
separate factual summaries or scenarios. Each
fact summary briefly described a situation in Three sets of dependent measures were
which the behavior of one individual caused analyzed: (1) the effect of group (Own defi-
injury to another. After they had read the fact nition or Legal definition) on relative rank-
summaries, subjects answered questions about ings of reprimand or punishment assigned to
them. the various mental states; (2) the effect of
The following example of one of the three group (Own, Legal, or No Definition) on
scenarios illustrates the nature of the task: subjects’ assignments of relative punishment
based on varying explanations for behavior in
A group of high school students is lcaving a the context of novel fact patterns; and (3) the
football game very agitated by their team’s content of the definitions of legally relevant
loss to their cross-town rival. When they see mental states generated by subjects in the
a group of students from the other school, one
“Own definition” group was compared with
person tosses a bottle into the air. The bottle
the content of the legal definitions in the
strikes the ground and flying glass cuts scv-
Washington Pattern Criminal Jury Instruction.
era1 people.

Four plausible explanations of the incident Runk-Ordering cf Criminal Mental State

were offered, and the degree of mental cul- Dcfinition.s
pability of the student who tossed the bottle
was varied for the four explanations, so that Mean rankings of the relative punishment
mens rea inferences of criminal intent, crim- or reprimand assigned to legal mental state
inal knowledge, criminal recklessness, and definitions by subjects in the Own definition
criminal negligence were appropriate, re- and the Legal definition groups appear in
spectively, for the four decreasingly serious Table 2.
 Inferring the Criminal Mind 111

TABLE 2

MEAN RANKINGS OF THE RELATIVE PUNISHMENTOR REPRIMAND ASSIGNEDTO LEGAL

MENTAL STATE DEFINITIONS

Mental State

Criminal Criminal Criminal Criminal

Experimental Condition Intent Knowledge Recklessness Negligence

Own definition 1.71” 2.57 2.57 3.14b

(N = 14)
Legal definition 1.67, 2.60 2.47 3.27,
(N = 15)
Total (N = 29) 1.72,, 2.58 2.52 3.18,
NOTES: Mean rank order from 1 to 4, where 1 indicates mental state most deserving of punishment or reprimand
and 4 indicates mental state least deserving of punishment or reprimand.
Means with different subscripts differ at the p < .05 level of significance (two-tail test).

Friedman chi-square analysis of variance rea are deserving of punishment or repri-

revealed statistically significant differences mand are reported in Table 3, by group.
among rankings in the Own definition group Each subject responded to three written fact
(chi-square = 8.74, df = 3, p = .03) and also summaries, for each of which four plausible
among rankings in the Legal definition group explanations corresponding, respectively, to
(chi-square = 11.64, df = 3, p = .009). Post- criminal intent, criminal knowledge, criminal
hoc comparisons showed that subjects in each recklessness, and criminal negligence were
group distinguished criminal “intent” from offered. These data provided a measure of
criminal “negligence” in their rankings but subjects’ abilities to apply the legal defini-
that they did not reliably distinguish among tions in specific factual contexts. As a pre-
other mental states. In both groups, subjects liminary matter, the fact summaries were in-
indicated that significantly more punishment dividually submitted to a Friedman two-way
was deserved for intentional acts than for analysis of variance to determine whether or
negligent acts. Again, however, no differ- not there were differences in subjects’ re-
ences in deserved punishment were indicated sponses as a function of the particular facts
by subjects for any combination of mental contained in the three summaries. No signif-
states other than negligent versus intentional icant differences were found. Accordingly,
misconduct. Thus, no reliable differences in the mean rankings of the relative amount of
assigned punishment were observed between punishment or reprimand assigned to crimi-
criminal intent and criminal knowledge, nally intentional, criminally knowledgeable,
criminal intent and criminal recklessness, criminally reckess, and criminally negligent
criminal knowledge and criminal negligence, acts were collapsed across all three fact
or criminal recklessness and criminal negli- summaries.
gence. Subjects in both groups appeared un- Subjects in all groups (No definition, Own
able to distinguish acts committed with crim- definition, and Legal definition) regarded
inal knowledge from acts committed with criminally intentional acts as most reprehen-
criminal recklessness. sible and criminally negligent acts as least
reprehensible, just as is prescribed by law.
Relative Punishment Assigned However, subjects in all groups rated acts
to Criminal Acts committed recklessly as more deserving of
punishment than acts committed with crimi-
Subjects’ assessments of the extent to which nal knowledge. Although the latter trend was
particular acts committed with differing mens not statistically reliable, the trend contradicts
112 LAURENCE J. SEVERANCE, JANE GOODMAN and ELIZABETH F. LOFKJS

TABLE 3

APPLICATION OF MENTAL STATE INFERENCES TO NOVEL FACT PATTERNS

Mental State

Criminal Criminal Criminal Criminal

Experimental condition Intent Knowledge Recklessness Negligence

No definition
(N = 17) 1.09‘, 3.09 2.00 3.82,,
Own definition
(N = 14) 1.14,, 3.21 1.93 3.711,
Legal definition
(N = 15) 1 .44,, 2.78 1.94 3.84,
NOTES: Mean rank order from 1 to 4, where 1 indicates mental state most deserving of punishment or reprimand
and 4 indicates mental state least deserving of punishment or reprimand.
In each row. means with different subscripts differ at the p < .05 level of significance (Friedman two-way
anova).

legal doctrine and penalites, which generally create a “template” of the core elements.
categorize criminal knowledge as more cul- Subject-generated definitions were then com-
pable and deserving of punishment than pared with each template and rated as cor-
criminal recklessness. rect or incorrect based on their similarity
In assigning punishment for specific fac- or dissimilarity with the template. To be
tual scenarios, subjects reliably distinguished scored as correct, a response had to include
between intent and negligence, but again they all requisite elements in the template. Re-
did not reliably distinguish between intent and sponses that were too ambiguous to be cod-
knowledge, knowledge and recklessness, ed were excluded from these analyses. The
knowledge and negligence, or recklessness objective of this analysis was qualitative.
and negligence. Thus, while subjects clearly not quantitative; it sought to determine
differentiated the extremes on the mental state the extent to which a layperson’s definitions
continuum, distinctions among other criminal may vary from the legal definition and to de-
mental states were not reliably perceived. termine what sort of preconceptions regard-
Exposure to legal definitions of the mental ing these concepts a juror may bring to a trial.
states, in the form of criminal pattern jury in- Thus. the focus was on the pattern of com-
structions, had no statistically significant ef- mon errors, if any, in subject-generated def-
fect on subjects’ rank-orderings of punish- initions. (See Table 4).
ment. Subjects in all three groups produced Intent. Three critical components or ele-
similar rankings.
ments were identified in the legal definition
of criminal intent, as follows: (1) act pur-
Content Analysis oj’S&ject-Generated posefully (2) to accomplish (3) a crime. Of
Mentul State Definitions the eleven responses that were codeable, only
three (27 percent) of the subject-generated
Subject-generated paraphrase definitions of
definitions were rated as correct. Sample re-
the four target mental states provided by the
sponses considered to have met this standard
“Own definition” group (N = 15) were ex-
included:
amined in an effort to clarify the meaning of
the numerical data. For each of the four legal If an act is committed with intended ill-will
mental states under investigation, the Wash- or illegal conduct, this is criminal intent.
ington Pattern Instructions for juries were Setting out to do a criminal act on purpose.
reduced to component units of meaning to preplanned.
 Inferringthe Criminal Mind 113

TABLE 4

SUBJECTS’ OWN DEFINITIONS OF MENTAL STATES

Percent Percent Description

Mens Rea Correct Incorrect of Error Example

Intent 3(27%) 8(73%) No actus reus The intent to break the law
(N = 11) was there, but the person
didn’t actually do
anything.
Knowledge 4(27%) 5(33%) Third party When you know by
(N = 15) witnessing or convincing
evidence that someone
has committed a crime
for which they have not
been investigated.
3(20%) No actus reus What the criminal knows
about the job that’s going
to be done.
3(20%) Criminology Knowledge concerning
criminals, it would be a
study or specialization
field.
Recklessness 3(20%) 5(33%) Other actus reus When a criminal is careless
(N = 15) in committing a criminal
act.
4(27%) Other mens rea When someone commits a
crime that they did not
know was a crime.
3( 20%) Mere negligence Committing a crime without
the intention of doing so.
This usually results from
carelessness.
Negligence 3(21%) 5(36%) Other mens rea Wants to commit a crime.
(N = 14)
3(21%) Recklessness Not caring what others may
be doing. Like blowing
up a hotel, not caring
about the few people who
may be involved.
3(21%) Other actus reus The criminal makes a
mistake and doesn’t
notice it.

While the pattern instructions clearly refer to
an objective or behavioral component (an act),
most subjects erred by paraphrasing criminal
intent as a purely internal, subjective desire
or mental phenomenon. More than half the
responses in this error group indicated that
subjects believed long-range premeditation or
preplanning of a crime was a requisite ele-
ment-a conception in conflict with the legal
definition, which permits a finding of crimin-
al intent even when that mental state occurs just
moments before or even during the actus reus.
114 LAURENCE J. SEVERANCE, JANE GOODMAN and ELIZABETH F. LOFTUS

Knowledge. The definition of “knowl- described criminal mental states other than
edge” that appears in Table 1 is stated in the recklessness, such as intent, knowledge, and
disjunctive and has five core elements: (1) an negligence. Definitions of criminal negli-
act (2) awareness (3) of facts (4) defendant gence instead of recklessness accounted for
or a reasonable person believes (5) comprise 20 percent of the overall responses. In a few
a crime. Subjects’ self-generated written def- cases, ignorance of the law was offered as a
initions were rated as correct if they men- basis for criminal recklessness.
tioned all five components. An example of a Criminul negligence. The sole difference
correct definition is: “A person’s knowledge between the Washington legal definition for
of what crime he is committing, if it is a crime criminal negligence and that for criminal
and the penalty of committing that crime.” recklessness is that the reckless perpetrator is
The number (4 out of 15) of accurate re- aware of the risk to others while the negligent
sponses was low (27 percent). Errors fell into perpetrator is unaware of the risk. The legal
three broad classes. Approximately one-third definition for negligence is conjunctive, with
of the subjects erred by imputing the knowl- five components (see Table 1): ( 1) unaware
edge to someone other than the perpetrator, (2) of a substantial risk (3) wrongful act and
such as an innocent bystander or unwitting (4) gross deviation (5) from conduct of a rea-
observer. Once again, as in the case of crim- sonable person.
inal intent, a number of responses made ref- Three responses out of 14 (21 percent) were
erence exclusively to an internal, subjective, rated as correct, for example, “Sufficient ne-
mental component, omitting any reference to glect of responsibility so as to have infringed
a behavioral or objective component. In other on the safety of others.” Half of the subjects
words, no uctus reus was mentioned. Fi- (50 percent) mistakenly described a mens rea
nally, some subjects construed the phrase to other than criminal negligence, such as in-
imply “general knowledge about criminal law
tent, recklessness, or even ignorance of the
or criminology,” interpreting the adjective as
law. Examples of responses in the category
descriptive, as in the following example:
are:
“Knowledge concerning criminals; it would
be a study or specialization field.” Overall, Wants to commit a crime.
nearly three-quarters of the subjects missed Not caring what others may be doing like
the definition, as it is legally defined. blowing up a hotel, not caring about the
Recklessness. Unlike the instruction for few people who may be involved.
_“knowledge,” the jury instruction on “crim- No knowledge that an action taken is a crime.
inal recklessness” is conjunctive (see Table
l), and it is composed of six elements: (1) Another common error was that subjects failed
aware of (2) disregard (3) substantial risk (4) to recognize that an act of negligence itself
of a wrongful act, and (5) this is a gross de- constitutes a criminal offense, even when it
viation from (6) conduct of a reasonable per- is unrelated to the commission of any other
son. Very few (3 out of 15, or 20 percent) separate crime. In other words, no substan-
of the responses were rated as correct para- tive definition of criminal negligence itself
phrases of the legal definition. Errors were was provided, and subjects referred to some
of three types. One-third of the subjects im- other UCYLLS reus. Examples of definitions that
puted recklessness to the degree of care or reflect this misconception are:
lack thereof with which a separate criminal
When a criminal is negligent, this would
act was executed, not realizing that the state
lead to most likely getting caught-
of mind of the perpetrator LYS-N-vi.7the con-
carelessness.
sequences of an action can itself constitute a Knowing that a crime has been committed and
criminal act. For example, “didn’t pay atten- doing nothing about it.
tion when committing the crime” and “when Failure to report a crime or violation you
a criminal is careless in committing a crim- yourself committed, such as leaving the
inal act.” The remainder of the subjects’ er- scene of an accident in which someone
roneous paraphrased responses (47 percent) is irrjurcd.
 Inferring the Criminal Mind 115

In all, the responses indicated that subjects mental states of criminal intent, criminal
were confused about the degree to which knowledge, criminal recklessness, and crim-
conduct must deviate from standards for a inal negligence. The only distinction that
reasonable person in the same circumstances subjects were able to make reliably was be-
before it is deemed criminally negligent. tween criminal intent and criminal negli-
gence; however, the qualitative data suggest
that even in distinguishing criminal intent
DISCUSSION from criminal negligence some subjects erro-
neously defined negligence by reference
This study has provided important baseline
to intentional misconduct (see Table 4,
information regarding lay-perceivers’ percep-
Negligence).
tions of legally relevant mental states by
There are important implications of these
showing that, with or without instructions in data for the U.S. criminal justice system. First,
the law, lay-perceivers do not reliably make the data suggest that either legal definitions
the fine-tuned mens rea distinctions that are should be restated in language that laypeople
fundamental to most criminal codes. If sub- can understand and use or that legal doctrine
jects had distinguished perfectly the degree eventually should be modified to eliminate
of punishment or reprimand in accord with distinctions laypeople are unable to grasp.
what the law associates with the four mental Second, the data suggest that, in criminal cases
states in issue, then the mean rank orders in which jury instructions include “lesser in-
would have been 1 .OO for “criminal intent,” cluded offenses” in which conviction of a
2.00 for “criminal knowledge,” 3.00 for greater or lesser degree of crime pivots on a
“criminal recklessness,” and 4.00 for “crim- jury’s decision about a criminal defendant’s
inal negligence, ” with reliable differences particular mental state, the U.S. system of
between each mental state and all the others. justice may be particularly vulnerable to er-
In contrast, our data showed that regardless ror. For example, where an individual is al-
of whether subjects rated the culpability of ternatively charged with first degree murder
these mental states after generating their own (intentional) or the lesser crime of man-
definitions or after reading formal legal def- slaughter (reckless), a court may have a dif-
ficult time getting a jury accurately to com-
initions of these mental states, they made re-
prehend the differences in elements that must
liable distinctions only between the most
be proved to convict. Inasmuch as first de-
culpable level of mens rea, “criminal intent,”
gree murder carries stronger penalties than
and the least culpable level of mens reu,
manslaughter, the jury’s failure properly to
“criminal negligence.” Our legally naive
understand the distinctions between “inten-
subjects could not, on their own, reliably agree
tional” and “reckless” mental states could re-
on differentiation between “criminal knowl- sult in injustice-either a harsher or a more
edge” and “criminal recklessness” nor reli- lenient result than legal definitions would
ably distinguish these from other legally rel- mandate. There is presently no simple solu-
evant mental states. Similarly, when asked to tion to such sources of injustice. Likewise,
apply mental state definitions to written sce- to the extent that subjects may retain their own
narios, once again, reliable distinctions were definitions despite the instructions, these ju-
made only between criminal intent and crim- rors may convict without sufficient cause.
inal negligence. The presentation of legal Conversely, jurors may decide not to convict
definitions had no significant effect on even when facts in evidence meet the legal
performance. prerequisites. We found no trend reflecting a
The findings reported here help to high- distinct prosecution or defense bias in our
light differences between legal definitions of subjects, however.
culpable mental states and laypersons’ con-
Attribution Theory and Culpable
cepts of those same mental states. In both
Mental States
quantitative and qualitative analyses, the sub-
jects manifested an inability to appreciate fine- Psychologists investigating the application
tuned distinctions among the legally relevant of attribution theories typically assume that
116 LAURENCE J. SEVERANCE. JANE GOODMAN and ELIZABETH F. LOFTUS

people infer mental states in others by ap- were summarized by Shaw and Sulzer ( 1964)
praising both the observed actions and the as follows:
context in which those actions occur (Shaver.
.luatifiable responsibility-the person is re-
1970; Jones and Davis, 1965; Kelley. 1967).
sponsiblc for intentional acts only when these
For example, if John bumps into Bill. the
acts arc not provoked by the environment.
significance of John’s act depends upon the Intentional responsibility-the person is re-
context in which it occurred. If the bumping sponsiblc only i’or intended cvcnts.
occurred during a verbal dispute, an observer Responsibility for foresecablc events-the
might attribute anger to John and also infer person is responsible l’or anything that can
that John intentionally shoved Bill. However, bc foreseen or prctlictcd. cvcn if unintended.
if the act occurred in other circumstances. for Causal responsibility--the person is respon-

instance. when John tripped on an untied sible for anything he or she causes. includ-

shoelace prior to bumping into Bill, then that ing unintentional or accidental cvcnts.
Associational rcsponsibilityPthc pcrson is
same action might elicit an inference of neg-
rcspmsiblc for anything uith which hc or
ligence rather than intent. From a legal stand-
she is associated. Thus. a I‘athcr may bc
point. if John’s behavior were the basis of a
punished bccausc his son. with whom hc is
criminal charge. the inference of‘ intent as op- associated. coniniittcd ;I crime.
posed to negligence could make the diffcr-
ence between a verdict of guilty and a verdict McGillis (197X) suggested that the legal
of not guilty, depending upon the I~IOILS~C’U degrees of mental culpability roughly corre-
element of the crime charged. late with these levels of responsibility. “Neg-
Psychologists have wondered to what ex- ligence. ” “recklessness.” and “knowledge”
tent attribution theory, with its taxonomy of range from a low level of awareness or prob-
external and internal causative factors. has ability (analogous to responsibility) that the
relevance for legal reasoning. Since common conduct will cause the result in question,
law reflects common sense, one might expect as in “should be aware” (negligence). to a
legal attributions of causality to parallel the moderate level of probability, as in “con-
ordinary person’s notions of attributions (Fin- scious disregard” (recklessness), to a high
cham and Jaspars, 1980). However, in a study level of probability. as in “practical
of the attribution of responsibility in a crim- certainty” (knowledge). In both legal and
inal case involving the insanity defense, Rob- attribution schemes. intentional behavior
erts, Fincham. and Golding (1987) found that denotes the greatest degree of responsi-
individual differences in laypersons’ implicit bility. Shaw and Sulzer ( lY64) and Shaw and
theories of responsibility significantly influ- Reitan (lY6Y) presented subjects (including
enced verdict outcomes. children, lawyers. and police officers) with
Attribution theories suggest that laypeople descriptions of acts in which Hcider’s levels
who serve as jurors assign degrees of per- of responsibility were varied. They found that
sonal responsibility to criminal defendants by subjects’ ratings of the degree of responsi-
distinguishing between actions attributable to bility. as well as recommendations for pun-
environmental factors and actions attributable ishment, tended to parallel Heider’s levels of
to the actor’s personal mental state. How- responsibility.
ever, the theoretical basis is less developed Some empirical work has been conducted
for predicting whether and to what degree on mock-.jurors’ abilities to make distinctions
laypeople accurately can recognize and dif- fundamental to the law in simulated court
ferentiate mental states of culpability distin- cases. For example. Sebba (lY80) reported
guished in current legal doctrine. that when the /~ZUL~t-w of an action is per-
Heider (1958) identified five levels of ceived as more intentional, offenses are per-
“responsibility attribution,” based upon lay- ceived as more serious. Velin and Walters
people’s explanations for behavior. These ( 1988) examined the relationships between
levels, which are similar in some respects type of evidence and jurors’ perceptions of
to the legally recognized mental states. intent in a case in which the UC~O.~I’CJUSand
 Inferring the Criminal Mind 117

the consequences to the victim were held state assessed from the actor’s behavior.
constant. They compared mock-jurors’ ver- Past researchers have noted that attribu-
dicts and recommendations for punishment in tions of responsibility are influenced by
three versions of a homicide case. In one ver- judgments about physical and psychological
sion, the defendant admitted that prior to causality and that these attributions in turn
or at the time of the crime his acts were influence judgments about appropriate pun-
intentional. In a second version, the defen- ishment or discipline (Thomann and Wiener,
dant testified that his conduct was not inten- 1987). Fundamental to both the civil and
tional. In a third version of the case, the de- the criminal justice systems is the applica-
fendant provided no testimony about his
tion of more severe punishment or larger
mental state, and jurors had to rely on circum-
monetary damages for more intentional be-
stantial evidence. Subjects in the “intention-
havior (Epstein, Gregory, and Kalven, 1984;
al” group inferred more violence than did
Shaver, 1985). According to legal philo-
others, and they were also significantly more
sophy, responsibility means the individual
likely to choose verdicts of deliberate as
is “liable for punishment and/or enforced
opposed to negligent homicide. They also
compensation to the extent to which the com-
recommended significantly longer prison
sentences and parole periods than subjects missioned action is associated with certain
in the other two groups. This study indi- mental or psychological criteria” (Hart and
cated that mock-jurors competently differ- Honore, 195956).
entiate the two most extreme criminal mens The present findings have implications for
rea, that is, they reliably distinguish crim- many criminal cases in which the state of mind
inal intent from criminal negligence. of the defendant is at issue. For example,
However, this study did not explore mock- White (1987) conducted studies of juror de-
jurors’ abilities to distinguish mental states cisionmaking in capital cases. White noted
that are closer on the criminal intent contin- that jurors failed to distinguish between sit-
uum, such as the more subtle difference be- uations in which the defendant had the req-
tween criminal intent and criminal knowl- uisite mental capacity to kill and those in which
edge or the difference between criminal harm was merely foreseeable. For example,
knowledge and criminal recklessness. Carroll if a robber conducts a hold-up using a load-
and Weiner (1982) summarized the cross- ed gun, jurors often presume that premed-
roads between legal doctrine and attribution itated intent to kill exists because the facts
theory as follows: at hand reveal a potential, but not necessar-
ily a propensity, to kill. Thus, jurors in
(T]he law makes more distinctions among
death penalty cases may apply a less lenient
kinds and degrees of responsibility than does
standard than the law presupposes, perhaps
attribution theory A major issue for at-
tribution theory is to separate legal and com- returning a verdict convicting a defendant
monsense ideas about responsibility of first degree aggravated murder when the
It may be that attribution theory is simply evidence does not warrant this outcome. The
weak in analyzing how people think about data discussed above show how much con-
responsibility On the other hand, it could fusion can occur.
be that legal principles become applied by ju- Celebrated cases, such as the trial of John
rors and other actors in commonsense
W. Hinckley, Jr., acquitted by reason of in-
judgments of a simpler nature more
closely related to the concepts of attribution sanity of charges of attempted assassination
theory. of former President Ronald Reagan, resulted
in a public outcry against legal defenses based
The research discussed above has built on on the defendant’s mental state when the
prior work of investigators such as Fincham commission of the actus reus was not in dis-
and Jaspars (1980) by examining mock- pute, particularly defenses of “diminished
jurors’ evaluations of a defendant’s mental capacity” or “insanity. ” In response to public
 118 LAURENCE J. SEVERANCE. JANE GOODMAN and ELIZABETH F. LOFTUS

sentiment, many states adopted reform stat- focusing on the mental state and criminal re-
utes permitting “guilty-but-mentally-ill” ver- sponsibility. Thus, in cases in which this de-
dicts. These reforms have been severely crit- fense is raised, the ABA proposed that three
icized for introducing conceptually alien potential verdicts or outcomes be available to
elements into the criminal justice system and jurors: guilty, not guilty, or not guilty by rea-
for failing to maintain the distinction between son of nonresponsibihty.
commission of the actus reus and guilt of A variation of the nonresponsibility de-
the crime charged. For example, Kunen fense is the diminished capacity plea. For ex-
(1983), a former public defender, argued ample, this plea was formerly available in
that verdicts of “guilty-but-mentally-ill” California in situations in which the defen-
are logically impossible if the legal dant lacked the ability to “meaningfully pre-
instructions on the meaning of the guilty meditate the crime.” In such cases, the de-
state of mind are observed and properly fendant was typically convicted of a lesser
applied. included offense, such as a crime based on
In an effctrt to resolve the controversy, the proof of recklessness or criminal negligence.
American Bar Association appointed an in- In 1982, after the trial of Dan White, whose
terdisciplinary committee of lawyers, judges, attorneys argued that a diet of junk food pro-
duced a chemical imbalance that impaired his
psychiatrists, psychologists, and other men-
judgment-“the Twinkie defense”-Cahfor-
tal health professionals to study and make
criminal nia voted to abolish the diminished capacity
recommendations to improve
defense. The ABA Criminal Justice Stan-
justice standards. Task forces reviewed
dards Committee recommended against use
the development and application of exist-
of the term “diminished capacity” on grounds
ing incompetency and insanity defenses.
that it mistakenly implies a linear relationship
The substantive defense of mental
between mens rea testimony and the defense
nonresponsibility (insanity) at the time of
of mental nonresponsibility (see, e.g., Low,
the alleged offense was carefully distin-
Jeffries, and Bonnie, 1982).
guished from the procedural defense of in-
The mens reu approach, which has been
competence to stand trial or undergo legal
adopted in some states, including Idaho,
proceedings (ABA Criminal Justice Stan-
Montana, and Utah, has sGme drawbacks.
dards Committee, 1988). ’ Specifically, a defendant may raise a defense
Only in a very small percentage of cases- based on a mental condition bearing on one
less than one percent of all felony cases-do of the requisite mental elements of the crime
defendants enter a plea for acquittal on grounds charged, but he/she may not raise mental
of mental nonresponsibility (Monahan and nonresponsibility as an independent excul-
Steadman, 1983; Weiner, 1985), and the de- patory doctrine (ABA Criminal Justice Stan-
fense is successful in about one-fourth of those dards Committee, 1988). Thus. the mens reu
cases. A defense of nonresponsibility negates approach condemns as criminal the acts of
culpability prerequisite to a finding of guilt defendants who are mentally ill, grossly out
in a criminal case. This defense is appropri- of touch with reality. Absent the availability
ate in cases in which the defendant suffers of the independent mental nonresponsibility
from enduring or transitory impairments of defense, a defendant will be convicted so long
mind, such that the defendant was unable to as he or she knew what he or she was doing
appreciate, at the time of the offense, the at the time of the offense and possessed the
wrongfulness of his or her conduct (Hollo- intent to do it.
way v. United States, 1945). One important This research has practical implications not
recommendation of the committee was to urge only for criminal cases but also for numerous
an end to the use of the term “insanity” in civil cases in which jurors must determine is-
the justice system. In its place. they advo- sues of intent, knowledge, recklesssness, Or

cated use of the term “mentally nonrespon- negligence. Distinctions among negligence,
sible” to assist lawyers, jurors, and courts in recklessness, and knowledge are crucial in
 Inferring the Criminal Mind 119

many tort cases, such as product liability study of jury instructions. Columbia Law Review
79: 1306-74.
claims, in which alternate legal theories of Elwork, A.; Sales, B. D.; and Alfini, J. J. (1977). Ju-
strict liability and negligence may be pre- ridic decisions: Ignorance of the law or in light of it.
sented. Issues of the defendant’s intent are Law and Hum Behav 1: 163-90.
~ ( 1982). Making jury instrucrions understand-
central to discrimination cases. Entitlement able. Charlottesville, VA: The Michie Company.
to punitive damages or damages for emo- Epstein, R.; Gregory, C.; and Kalven, H. (1984). Cases
tional distress in civil suits often depends up- and materials on torts (5th ed.). Boston: Little Brown
and Co.
on an adequate showing of recklessness or Fincham, F. D., and Jaspars, J. M. (1980). Attribution
willfulness on the part of the defendant. of responsibility: From man the scientist to man as
Lay definitions of mental states are useful lawyer. In Advances in experimental social psychol-
ogy, vol. 13, ed. L. Berkowitz. 82-139. New York:
in providing a source of effective para- Academic Press.
phrases for trial lawyers and other legal com- Hart, H., and Honore, A. (1959). Causation in
municators to use to clarify and distinguish law. London and New York: Oxford University
press.
the relevant mental states for laypersons. For Heider, F. (1958). The psychology of interpersonal re-
example, from the responses on reckless- lations. New York: Wiley.
ness, the following paraphrases were glean- Jones, E. E., and Davis, K. E. (1965). From acts to
dispositions. In Advances in experimental social psy-
ed for future use: “indifference,” “inat- chology, vol. 2, ed. L. Berkowitz. New York: Aca-
tention to consequences,” “avoidable demic Press.
harm.” These definitions may be useful to Kelley, H. H. (1967). Attribution theory in social
psychology. In Nebraska symposium on motiva-
attorneys preparing voir dire questions tions, ed. D. Levine. Lincoln, NE: University of Ne-
or closing arguments or to committees re- braska Press.
sponsible for composing or revising jury Kunen, J. (1983). “How can you defend those people?”
The making of a criminal lawyer. New York: Ran-
instructions. dom House.
Low, P.; Jeffries, J.; and Bonnie, R. (1982). Criminal
law; Cases and materials. Mineola, NY: The Foun-
dation Press.
McCiillis, D. (1978). Attribution and the law: Conver-
ACKNOWLEGEMENT gence between legal and psychological concepts. Law
and Hum Behav 2:289-300.
This research was supported by a grant from the Law Monahan, J., and Steadman, H. J. (eds.) (1983). Men-
and Social Sciences Division of the National Science tally disordered offenders: Perspectives from law and
Foundation. Thanks are due to Kenneth Goldberg for social science. New York: Plenum.
his help collecting data. Roberts, C. F.; Fincham, F. D.; and Golding, S. L.
(1987). Implicit theories of criminal responsibility:
Decision making and the insanity defense. Law and
Hum Behav 11(3):207-32.
NOTES
Sebba, L. (1980). 1s mens rea a component of perceived
offense seriousness? J Crim Law 7 1: 124-35
1. A determination that a defendant is mentally in- Severance, L. J., and Loftus, E. F. (1982). Improving
competent to participate in his or her trial has no bearing the ability of jurors to comprehend and apply criminal
on guilt or innocence of the crime charged at the time jury instructions. Law & Sot R 17:153-97.
of the offense. The number of defendants who plead Shaver, K. G. (1970). Defensive attribution: Effects
incompetency to stand trial far exceeds the number who of severity and relevance on the responsiblity as-
raise the defense of mental nonresponsibility, although signed for an accident. J Pers Sot Psycho1 14:
precise comparative statistics are difficult to obtain
101-13.
(Monahan and Steadman, 1983).
- (1985). The attribution of blame: Causalitv, re-
sponsibiliry and blameworthiness. New York: Springer-
Verlag.
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