Recently, The National Law Journal carried a story about an important gap that has emerged in jurors’ ability to understand the criminal law. According to the original study, described in the article “Sorting Guilty Minds” in the NYU Law Review, jurors have a difficult time distinguishing between two of the culpable mental states under which perpetrators commit crimes: “knowledge” and “recklessness.” In this column, I will offer an account of jurors’ difficulties that locates the problem in the ambiguity of the criminal law itself, rather than in the thinking processes of fact-finders.
What Makes a Crime Blameworthy?
In the criminal law, we focus a great deal on harm. If a person commits a crime that brings about a death, for example, we consider the offense much more serious than one that brings about a loss of property. And when a crime results in substantial bodily injury, we condemn the act far more than we do when an offense results in, say, a small scratch.
The significant role of harm in the criminal law becomes especially clear when two perpetrators do exactly the same thing but with very different consequences. Consider an extreme example: Adam sets fire to Carl’s home, and Ben sets fire to Dan’s home. Both Carl and Dan (the victims) are asleep in their respective homes when the fires start, but Carl wakes up in time to escape with his life, and Dan does not. Because Ben’s victim has died, Ben may be guilty of murder and potentially subject to the death penalty. In contrast, Adam, whose victim has survived, is guilty of a lesser offense—one that cannot constitutionally be punished by execution.
Harm, however, is not everything. If a person acts in an innocent manner that happens to bring about a grave harm to another, the criminal law does not get involved. For instance, when a driver runs over a confused pedestrian who has suddenly darted out onto the road, too late to be avoided by the most careful of drivers, the driver is innocent of any crime, even if the pedestrian ultimately dies of his injuries.
Conversely, a person who acts in a culpable fashion but somehow fails to bring about any tangible harm may still find himself serving a long prison term. Say, for instance, that a man aims his gun at a neighbor and shoots but misses his target, hitting a tree stump instead. The man may still be tried for, and convicted of, attempted murder. What distinguishes guilt from innocence, then, turns not only on harmful consequences, but also on the intentions and actions of the would-be perpetrator.
Four Criminal Mental States
The criminal law classifications of culpable mental states (also known as “mens rea”) differ from state to state. Since 1962, however, the American Law Institute’s Model Penal Code (MPC) has played an important role in shaping the ongoing development of the criminal law, and the MPC’s designation of mental states has been correspondingly influential as well. For this reason, both the study published in the NYU Law Review and this column focus on the four mental states that appear in the MPC, though individual states have their own variations in whether, and which, mental states apply to particular categories of crime. Because these four mental states are pervasive, juries’ inability to understand them poses important challenges for the fair administration of criminal justice.
The MPC organizes criminal culpability into four mens rea designations: purpose, knowledge, recklessness, and negligence. Though the definition of the various mental states is subtle, I’ll describe the basic idea behind each one below.
The first and most serious of the mental states is “purpose.” If a criminal acts with the goal of bringing about the harmful consequences that result from his behavior, then he has acted with purpose. In the example above, if Ben set fire to Dan’s home in order to cause Dan’s death, then Ben has killed Dan “purposely.”
The second culpable mental state is “knowledge.” If a perpetrator knows that his act will cause the harm that in fact results from his behavior, but he does not act with the goal of bringing about that harm, then he acts knowingly. If, for example, Ben had no desire to kill Dan but nonetheless set fire to Dan’s occupied home (perhaps because Ben wanted to destroy documents that happen to be located there), then Ben would have killed Dan knowingly.
The third mens rea is “recklessness.” If Ben had closed his eyes and fired a pistol repeatedly in different directions, knowing that several people were nearby and stood a significant chance of being killed, then Ben would have acted recklessly.
And fourth is negligence. If Ben had shot his pistol blindly into an alley where people rarely went, with no intention on his part of hurting anyone and no awareness that such behavior is dangerous, then he would have acted negligently (or with gross negligence, as the standard for criminal negligence exceeds the sort of simple negligence that triggers tort liability). In this last scenario, we focus on whether a reasonable person would have appreciated the risk involved in Ben’s behavior, even though Ben himself was by hypothesis completely unaware of the danger that his conduct posed.
The Study’s Findings
In the NYU Law Review article, Professor Francis Shen and his co-authors elaborate the finding that jurors are very good at distinguishing between purposeful, negligent, and blameless conduct. What they cannot do well, however, is distinguish reliably between knowing and reckless conduct. What seems to elude jurors is the line between the perpetrator who acts with knowledge that he will bring about harm, and the perpetrator who acts with an understanding of the extreme and unjustified risk of harm that he generates.
The reason to be concerned about jurors’ difficulty in distinguishing knowing from reckless behavior is that a jury’s choice to identify a defendant’s actions as “knowing,” rather than “reckless,” can have significant repercussions in the severity of the defendant’s prison sentence. In Colorado, for example, a knowing homicide carries a mandatory prison term of sixteen-to-forty-eight years, while reckless homicide carries a non-mandatory two-to-six-year term. If juries are essentially choosing randomly among these two mental states, as if they were picking one of the two alternatives out of a hat, because they find the distinction confusing, then two of the existing criminal law mental states are wanting in clarity. And if that is the case, then something needs to change.
Unpacking the Four Mental States
In thinking about the findings of this study, one cannot help but wonder whether it is perhaps the criminal law itself, rather than jurors’ shortcomings, that can best explain the confusion jurors experience in differentiating between knowledge and recklessness. After all, jurors (or study participants) are sufficiently intelligent, and are paying enough attention to instructions, to be able to distinguish two of the mental states—purpose and negligence—quite well. What is it, then, that makes knowledge and recklessness so difficult for people to separate?
We can begin to answer this question by unpacking the meaning of each mental state, starting with the ones that people readily understand. The first of these is purpose.
To act with purpose, by contrast to the other mental states, is to act with the objective of bringing about the result against which the law is designed to protect—death, in the case of a homicide. When evaluating whether a killing was purposeful, a jury need not dwell on the risk question, either to calculate the actor’s awareness of the risk, or to determine whether the behavior truly was risky. Perhaps it was not especially dangerous to behave as the defendant did, but it is enough that he did it with the aim of bringing about death (or another prohibited consequence).
A shooter may, for example, generally be extremely bad at hitting his targets, but he got lucky on one occasion when he tried, successfully, to shoot his victim. The fact that he acted with the objective of killing trumps the low risk, ex ante, that he would successfully hit his chosen target, and he is accordingly guilty of committing a purposeful homicide. His mental state alone, in other words, elevates the culpability of his actions to the highest level, despite the relative safety of his actual behavior in the run of cases.
At the other side of the culpability continuum is negligence. In a case of negligence, an actor behaves in a manner that creates an unreasonably high risk of harm. Under the circumstances, an objectively reasonable person would not have done what the actor in question did. Negligence, however, requires no awareness on the part of the actor that his behavior was risky or dangerous. By contrast to the case of the purposeful actor, whose subjective state of mind determines criminal culpability, for the negligent actor, an objective assessment of the actual risk of his behavior will carry the day.
In assessing negligence, then, the main focus of the inquiry is on the actual riskiness of the behavior. Consider a doctor who prescribes a drug for a patient who is deathly allergic to that drug. Assume that the allergy is listed in the patient’s chart, which the doctor has failed to consult. The doctor has no desire to kill the patient and has no idea that the patient has this allergy, because the doctor does not make a practice of reading patients’ charts before writing prescriptions. The doctor may have no awareness that the failure to read a patient’s chart before prescribing a treatment is dangerous, but the doctor should be aware of this fact.
The objective reality that prescribing a drug under these conditions is unreasonably risky makes the doctor’s behavior negligent (or grossly negligent), and the doctor’s obliviousness to the risk does not bar a jury from finding him guilty on a negligence theory.
How Knowledge and Recklessness Differ
Having reviewed the two states of mind that jurors understand well, let us move on to the two that tend to confuse—and be confused by—jurors. These, again, are knowledge and recklessness.
To prove a “knowing” homicide, a prosecutor must show that the defendant acted with an awareness of the fact that his conduct was virtually certain to cause death.
To prove a “reckless” homicide, a prosecutor must demonstrate that the defendant acted with an awareness of the fact that his conduct posed an unjustifiably high risk of causing death.
At first glance, these last two state-of-mind definitions may seem as straightforward as the first two. But now consider what it means to be aware that one’s conduct is virtually certain to cause death. For you to know that your behavior is virtually certain to cause death, two things must logically be true: (1) you believe that your behavior under the circumstances will almost certainly cause death, and (2) your behavior under the circumstances will in fact almost certainly cause death.
It would be inaccurate to describe you as “knowing” the truth of a proposition unless you believed the proposition to be true and the proposition was, in fact, true. Otherwise, we would be able to say that someone “knows” that the sun revolves around the earth, because he believes in the geocentric theory of the universe, even though he is mistaken in that belief. Or, we would be able to say that someone “knows” that she has advanced breast cancer, because she does in fact have the cancer, even though she has no awareness at all that she is sick.
This analysis applies, as well, to the conclusion that a person has acted with a conscious awareness that she was taking an unjustifiably high risk of harm. To be consciously aware that one’s behavior is extremely risky, it must be the case that (1) one believes that one’s conduct is extremely risky and that (2) one’s conduct is in fact extremely risky.
Here again, being “aware” that something is true requires both the belief that something is true, and the reality that it is true. In the case of both “knowing” and “reckless” misconduct, however, the law combines these two components into one, and thereby gives the impression that “knowing” and “reckless” are pure mental states (in the way that “purposeful” is), when they are actually combinations of mental states (that is, beliefs regarding risk) and objective facts (i.e., actual risk). This conflation alone is likely to confuse jurors. But there is another problem as well that arises when jurors try to differentiate between knowing and reckless misconduct.
Carefully Analyzed, Knowledge and Recklessness Present Four Possibilities for Jurors, Not Just Two
When a mental state consists of two separate components, as both “knowledge” and “recklessness” do, there is an additional and significant source of confusion for jurors. There is a belief element to each definition, in which an actor may either believe that (a) his actions will cause death (which we can call “CERTAINTY IN BELIEF”), or that (b) his actions create an unjustifiably high risk of causing death (which we can call “HIGH RISK IN BELIEF”). And there is an objective-reality element, in which an actor’s conduct is, in fact, (a) virtually certain to cause death (“CERTAINTY IN FACT”), or is, in fact, (b) unreasonably dangerous to life (“HIGH RISK IN FACT”).
In trying to decide whether a defendant has acted with knowledge or recklessness, there are accordingly four possible combinations: 1) CERTAINTY IN BELIEF AND CERTAINTY IN FACT; 2) HIGH RISK IN BELIEF AND HIGH RISK IN FACT; 3) CERTAINTY IN BELIEF AND HIGH RISK IN FACT; AND 4) HIGH RISK IN BELIEF AND CERTAINTY IN FACT.
If we assume that the jury can somehow figure out on its own that knowledge and recklessness each entail two separate elements, then the jury will see that combination #1 readily qualifies the defendant’s conduct as “knowing,” and combination #2 readily qualifies it as “reckless.” But what is the jury to make of combinations #3 and #4?
Disturbingly, the jury has no basis for determining what happens in the mixed or “hybrid” conditions, #3 and #4. One might conclude that both amount to “knowing” misconduct, because there is certainty somewhere in the equation, and perhaps that is all that an awareness of virtual certainty requires. One could, alternatively, conclude that both #3 and #4 amount only to “reckless” misconduct, because leniency demands that we privilege the less culpable element in each case.
A third possibility would be to privilege subjective belief over objective fact, because what makes people most blameworthy is the harm that they believe they are inflicting (in which case #3 would be knowing, and #4, reckless). And finally, one might find most compelling the notion of privileging objective fact over subjective belief, because regardless of the defendant’s beliefs, more dangerous behavior is worse than less dangerous behavior (in which case #3 would be reckless, and #4 knowing).
I cannot say with any confidence that one of the four approaches to the hybrid BELIEF/FACT scenarios is plainly the correct one. From a conflated definition of knowledge and recklessness, it seems that any of the four answers one might give could be plausibly defended.
Under such conditions, it is the responsibility of the legislature that passes a statute, or the judiciary that construes it, to select one of the four possibilities and to make that selection clear to juries. Jurors in individual cases are otherwise left to guess what the statute means, a state of affairs that courts confusion and arbitrariness, and practically invites inconsistent outcomes.
Possible Remedies for Confusion Over Knowledge and Recklessness
If one agrees with my assessment—set forth above—of why jurors find knowledge and recklessness difficult to distinguish from each other, then the solution to the problem is straightforward: First, the law (and corresponding jury instructions) must clearly convey the two-part nature of both knowledge and recklessness. We could tell the jury, for example, that for a defendant to act knowingly or recklessly entails both a belief element (described as his belief in the certainty or risk of a harmful result) and an objective-reality element (described as the factual certainty or factual risk of a harmful result). This would represent a vast improvement over telling the jury that “knowledge” means awareness that the harm will certainly occur, and that “recklessness” means awareness that there is a substantial and unjustifiable risk that the harm will occur.
Second, the law (and matching jury instructions) must clarify what element the jury must privilege when the belief element and the objective-reality element conflict with each other. This poses no problem when the state of mind at issue is purpose, because there is no necessary belief element and no necessary objective reality element in purpose. Nor does it pose a problem when the mental state at issue is negligence, because there is no necessary belief element in the definition of negligence. But it does pose a serious problem when the mental state at issue is knowledge or recklessness, each of which contains both elements.
When it comes to defining knowledge and recklessness, legislatures or judges could decide (1) to privilege the greater element over the lesser element, (2) to privilege the lesser element over the greater element, (3) to privilege belief over objective reality, or (4) to privilege objective reality over belief. I leave answering the question of which would be the best choice among these four possibilities for another day. But what is clear today is that for decision-makers to make some choice in this matter—and then clearly articulate the elements of “knowledge” and “recklessness” for fact-finders—would improve the clarity and determinacy of the law.
Far from being legal technicalities, mens rea can have profound real-world consequences. For some crimes, the line between knowledge and recklessness may turn out, in particular cases, to be of great importance at sentencing. In such cases, the verdict should turn on something principled rather than on a confused and uninformed jury choice no more reasoned, in the end, than the flip of a coin.