Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal Attempt.

• Author: Sood, Avani Mehta

Abstract. How do jurors construe and apply facts and law to decide the point at which a defendant's thoughts and actions cross the line from being legally innocent to criminal? And under what doctrinal circumstances are such lay constructions of criminality vulnerable to legal misunderstanding and bias? Although these are high-stakes questions, the black box of the jury room leaves the legal system largely in the dark about the answers.

Shining an empirical light on this domain, this Article employs tools of psychology to investigate how lay decisionmakers construe and apply legal standards for criminal attempt--a doctrine that imposes liability when a defendant intends and initiates a crime but does not successfully complete it. There are two dominant standards for the act element of attempt, but both are vague and ambiguous in defining the point at which liability attaches. Jurors are thus implicitly required to determine not only whether the defendant's conduct has met the threshold for criminal attempt, but also where that legal threshold lies. The fundamental question of how lay decisionmakers without legal training are likely to execute this cognitively challenging task has never been empirically tested.

To fill this practical and methodological gap, I present the results of three original experimental studies on lay constructions of attempt law. My findings uncover striking disconnects between legal expectations and lay determinations of criminal attempt. Contrary to legislative design, the common law's theoretically more defense-friendly "proximity" test (which draws the line of attempt liability closer to completion of the intended crime) emerges as more prosecution-friendly in lay applications than the Model Penal Code's "substantial step" test (which theoretically seeks to expand attempt liability). The proximity test also appears to be more susceptible to bidirectional biases that lead to discriminatory legal outcomes.

Drawing upon psychology theory to explain these findings, I propose that the linguistic framing of the proximity test may unconsciously activate a sense of criminal "nearness" that anchors decisionmakers to harsher outcomes. The language of the proximity test may also be more likely to invoke a sense of threat, which can activate stereotypes that bias decisionmaking based on legally extrinsic factors, such as the defendant's implied religion and the type of crime he is charged with attempting.

This Article's findings challenge the legal community's established understandings of attempt law, and also speak to lay constructions of criminal liability more broadly by providing new insights into how jurors may interpret the act requirement of a criminal offense in light of its mental state requirement. Furthermore, by illustrating how lay-legal disconnects can inadvertently undermine legislative intent and how the language of the law itself can trigger unfair prejudice, the results bear implications for any area of law in which jurors are tasked with applying opaquely defined legal standards.

Having empirically identified potential doctrinal and cognitive entry points for legal misunderstanding and bias in lay adjudication, I then suggest some novel steps that the legal system could consider taking to address these risks. My proposals entail rethinking how legislatures formulate legal standards, how courts convey these standards to jurors, and how jurors deliver their verdicts. I conclude by highlighting some key psychological and doctrinal directions for future research. Empirically unveiling the psychology of how lay decisionmakers construct legal liability, and drawing upon these insights to help jurors better understand the law, could unfurl promising new pathways toward more informed and fair decisionmaking in the justice system.

Introduction I. Legal and Psychological Framework A. The Act of Attempt B. Prior Experimental Inquiries C. Psychological Foundations 1. Legal opacity and misunderstanding 2. Legal opacity and bias D. Investigating Islamophobia II. The Experiments A. Study 1: The Interplay of Facts and Law 1. Methodology a. Case facts: innocent, ambiguous, and guilty b. Law: substantial step or proximity 2. Results a. Effect of case facts b. Interactions of facts and law B. Study 2: Varying Crimes and Real Instructions 1. Methodology a. Attempted crime: terrorism, arson, or trespass b. Law: substantial step or proximity 2. Results a. Effect of crime b. Replication of fact-law interaction C. Study 3: Michael vs. Mohamed--A Criminal by Any Other Name? 1. Methodology a. Law and crime b. Religion: Muslim, Christian, or control 2. Study 3a results a. Interactions of law and religion b. The centrality of intent 3. Study 3b results a. Effect of religion b. Interactions of law and religion D. Summary of Key Empirical Findings III. Explanations and Mechanisms A. Lay-Legal (Mis)constructions B. Problems of Proximity 1. Priming closeness: an anchoring effect 2. Priming peril: bidirectional biases a. The biasing trajectory of threat b. The benefit of the doubt C. The Action of Intent 1. Act-intent entanglements 2. Intent as a vehicle for discrimination IV. Paths Forward A. Potential Reforms 1. Conveying the law a. "Comparative" jury instructions b. Special verdict interrogatories 2. Crafting the law a. Legislative reconstruction b. The vagaries of vagueness 3. Implications for practice, prosecution, and plea bargaining 4. Arguable risks of legal clarification B. Future Directions 1. Effects of group deliberation 2. Delineating and disentangling variables 3. Further doctrinal applications a. Testing rape laws b. Extensions to civil law Conclusion Appendix A Appendix B Appendix C Introduction

People v. Rizzo, perhaps the most famous criminal attempt case in American history, involved Charles Rizzo's foiled plan to rob his father's construction company. (1) One January 1927 day in the Bronx, Rizzo and three others equipped themselves with guns and drove around in a stolen car, looking for the man carrying the company's payroll. (2) However, police officers intercepted Rizzo and his crew before they could find their target. (3)

A jury found Rizzo guilty of attempted robbery, but the New York Court of Appeals reversed the conviction. (4) Although the facts established at trial left "no doubt that [Rizzo] had the intention to commit robbery, if he got the chance," (5) the appellate court held that he never came within "dangerous proximity" of actually committing the crime--New York's legal test for when actions trigger attempt liability (6)--because he never "found or reached the presence of the person [he] intended to rob." (7)

Forty years after Rizzo, the influential Model Penal Code (MPC) drafted by the American Law Institute (ALI) sought to broaden attempt liability by setting the threshold for guilt at an earlier stage: as soon as the defendant takes a "substantial step" toward committing the intended crime. (8) The MPC's now-majority test is therefore generally understood to be more prosecution friendly than the common law's proximity test under which Rizzo was acquitted. (9) In fact, law professors often use Rizzo to illustrate the critical difference between these two legal standards: "And how would Charles Rizzo ... have fared under the MPC test? We can safely say [he] would not have fared well." (10) Law school graduates then carry this comparative understanding of attempt doctrine with them into legal practice as prosecutors, defense attorneys, judges, and legislators--making a host of consequential decisions based on their shared conceptions of the law.

But does this general legal understanding correspond to how jurors--lay members of the public who most often do not have any legal training-operationalize the legal tests for criminal attempt? After all, a jury initially found Rizzo guilty of attempt even under the ostensibly more defense-friendly proximity test. Could it be that lawmakers' intentions are lost in translation when lay adjudicators construe and apply attempt law?

This Article is the first to empirically investigate this critical question. For over a century, leading legal scholars have devoted significant attention to the evolving doctrine of criminal attempt, with research inquiries providing foundational insights about the parameters of the offense (11) as well as analyses of thorny legal issues that the doctrine raises. (12) However, the existing body of scholarship generally reflects a more theoretical and abstract approach, as opposed to generating and analyzing hard data about how the legal standards for attempt are likely to function in the hands of jurors.

To begin filling this practical and methodological gap, this Article draws upon tools of psychology to experimentally explore lay "constructions" of criminal attempt: how jurors are likely to operationalize facts and law to determine when a defendant's thoughts and actions cross the line from being legally innocent to criminal. Attempt law offers a promising legal arena for studying psychological constructions of criminality due to the definitional challenges the doctrine presents for lawmakers and factfinders alike. States have grappled with different legal standards for defining the "act" element of a criminal attempt, and ultimately both the dominant "substantial step" and "proximity" tests use vague and ambiguous language to define the moment when criminal liability attaches. (13) Jurors tasked with applying these opaquely defined legal standards therefore bear the onus of deciding not just whether the defendant's actions crossed the line of criminality, but also exactly where that line lies. As a result, and contrary to standard legal protocol, (14) jurors in attempt cases effectively become arbiters of not only the facts but also the law.

This Article empirically explores two potential risks of implicitly assigning untrained lay decisionmakers this cognitively demanding task: (1) legal...