|"The thought of man shall not be tried, for the devil himself knoweth not the thought of man."
In the criminal law, "mind" is a mystery. It seems for the foreseeable future, it will remain as such. Doctrines specifying the different levels of culpability generally do not reflect the surges of scientific discoveries on mental processes. At the same time, what people intend, think, and believe are paramount to assessing guilt. In some cases, it can mean the difference between life and death. How odd for a legal system to base so much on something about which it seems to know so little.
With notable exceptions, the criminal law generally presumes that intentional conduct is the result of a free and conscious choice. The law's emphasis on free will, however, coexists with some acknowledgment that not all individuals have the same choices available to them nor the same capacity to choose. The law's differential treatment of actors' varying states of conscious awareness exemplifies this approach.
In the 1960's, James Marshall proposed an intriguing eight-level continuum of how the law classifies consciousness, ranging from behavior entirely devoid of intent to that motivated by the unconscious to behavior at the height of conscious intention: (1) pure accidents; (2) reflex actions; (3) acts arising from the unconscious; (4) actions resulting from stress, such as panic and hysteria; (5) behavior instigated by hypnosis or other types of suggestive influences; (6) acts stemming from the acquisition of cultural or group norms, or from social interactions; (7) acts that have foreseeable consequences; and (8) conscious acts with conscious intentions. This continuum illustrates that intentional behavior comprises a mix of conscious and unconscious choices; those acts on the lower end are more heavily weighed toward the unconscious whereas those on the higher end are more heavily influenced by conscious elements.
Marshall's proposal of the varying mixes of conscious and unconsciousness thought processes is based primarily on psychoanalytic conceptions. This article focuses on the new science of consciousness, which is devoid of a psychoanalytic frame, as a way of suggesting how it can enlighten the criminal law's mens rea standards. It re-examines Marshall's continuum in light of this research and specifies alternative ways of approaching it as well as the criminal law's current representations of "mind."
Increasing revelations about the unconscious question the validity of our accepted notions of criminal culpability and their historical derivations. Such revelations also conflict with the understandable tendency for legislatures and judges to favor established legal doctrine, however scientifically askew, in lieu of new psychological research that can challenge set paradigms. Regardless, there comes a point when the law must accept the "modernity of the mind" to keep up the reality of a changed world and the people who live in it. If the criminal law can confront and modify outmoded mens rea standards, it can join science with a more nuanced, and more just, view of the human mind.
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