When Does Knowledge Become Intent? Perceiving the Minds of Wrongdoers

• Author: Pam A. Mueller,John M. Darley,Lawrence M. Solan
• Date: 01 December 2012
• Published date: 01 December 2012
• DOI: http://doi.org/10.1111/j.1740-1461.2012.01269.x

When Does Knowledge Become Intent?

Perceiving the Minds of Wrongdoers

Pam A. Mueller, Lawrence M. Solan, and John M. Darley*

In a series of experimental studies, we asked people to assign appropriate civil and/or

criminal liability to individuals who cause harm with various culpable states of mind and

kinds of knowledge. The studies are principally aimed at two related issues. First, do people

actually separate the various states of mind conceptually? How much knowledge, and what

kind of knowledge, regarding something that may go wrong (understanding risk) is suffi-

cient to count as knowing that something will go wrong (having knowledge legally equivalent

to intent)? Second, to the extent that people distinguish among the states of mind that help

define normative behavior, how much do those distinctions contribute to people’s judg-

ments of civil liability? Our studies show that people are able to make explicit distinctions

about the states of mind of others that more or less correspond to legally relevant categories.

Yet, when asked to assign consequences, their “hot” moral judgments play a larger role than

do their “cold” cognitive categorizations.

I. Introduction

In this article we report a series of experimental studies in which we asked people to assign

appropriate civil and/or criminal liability to an employer who caused harm to an employee.

We systematically varied the culpability of the state of mind and the kind of knowledge the

harm doer had. The studies are principally aimed at two issues that pervade both case law

and scholarly literature. First, do laypeople actually differentiate the various states of mind

conceptually? That is, when judging behavior, do people distinguish between intentional

and knowing acts, knowing and reckless acts, reckless and negligent acts, and so on? This

question is both complex and subtle. It includes issues such as how much knowledge, and

what kind of knowledge regarding something that may go wrong—that is, understanding

risk—is sufficient to count as knowing ex ante that something will go wrong—that is, having

knowledge (for further discussion of the distinction between statistical risk and knowledge,

see Simons 2010). Second, to the extent that people distinguish among the states of mind

*Address correspondence to Pam Mueller, Department of Psychology, Princeton University, Princeton, NJ 08542;

email: pamuelle@princeton.edu. Mueller is a Ph.D. student in the Department of Psychology; Solan is Don Forchelli

Professor of Law, Brooklyn Law School; Darley is Warren Professor of Psychology, Princeton University.

Our thanks to Kenneth Simons, Tony Sebok, Aaron Twerski, Adam Kolber, Terry Maroney, Francis Shen, and

anonymous reviewers for the Journal of Empirical Legal Studies and the 2011 Conference on Empirical Legal Studies. A

version of this article was presented at the Metro Experimental Research Group (MERG) Experimental Philosophy

Conference at NYU in 2011; we are also grateful to the participants of that conference for their comments.

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Journal of Empirical Legal Studies

Volume 9, Issue 4, 859–892, December 2012

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that help define normative behavior, how much do those distinctions contribute to people’s

judgments of civil liability? It is entirely possible that people are able to draw subtle

distinctions about the minds of others, but to make little use of these distinctions when

assessing punishment and other liability. Instead, they may rely on their sense of moral

outrage or other “hot” cognitive judgments, which may or may not correspond with their

“cold” cognitive judgments (Haidt 2001; Read et al. 2010).

Our studies show that people appear to be able to make explicit distinctions about

the states of mind of others that more or less correspond to legally relevant categories. Yet,

when asked to assign consequences, their moral judgments often play a larger role than

does their categorization. Sometimes, these judgments match results prescribed by the legal

system. For example, committing a bad act with knowledge that it will cause a negative side

effect is legally equivalent to committing the bad act intentionally (Restatement (Second)

of Torts § 8A 1965; City & County of San Francisco v. Philip Morris, Inc. 1997), so despite the

differing states of mind, the potential tort liability is equivalent. In other instances, however,

people’s intuitions about liability are less graded than are legal categories. For example, we

find that in addition to equating knowledge that an act will certainly cause harm with

intentionally causing that harm, participants regard knowledge that an act will put a person

at risk of harm as intentional. The law, in contrast, draws a distinction in liability between

these states of mind.

The result is that many people are willing to hold those who put others at risk of harm

as responsible as those who intentionally caused harm. Once they attribute even a small

amount of knowledge of that risk to the wrongdoer, they impose liability equivalent to that

for intentional wrongdoing. Yet these same people, when asked explicitly, do not charac-

terize this conduct as intentional. The results confirm earlier findings in the psychological

literature on motivated reasoning (e.g., Kunda 1990), and add to ongoing debates in

experimental philosophy about the relationship between moral judgment and judgments

of intentionality (e.g., Knobe 2003; McCann 2005; Guglielmo & Malle 2010). Additionally,

they further demonstrate how robust people are in forming theories of mind in judging

behavior (Bloom 2004).

Among the findings we report and discuss in this article are the following:

1. People hold those who knowingly cause harm to have caused harm intentionally,

which is consistent with operative legal principles.

2. People hold those who cause harm after putting people at risk as liable as those

who cause harm intentionally, which is not consistent with operative legal princi-

ples. However, when asked for the best characterization of the harm doer’s state

of mind, they do not characterize it as intentional, suggesting that they may be

making motivated liability decisions based on their moral judgment even though

they distinguish among the employer’s cognitive states when asked.

3. Knowledge of even low levels of risk triggers judgments of intentional harm.

4. Knowing someone will be hurt, but not knowing who will be hurt, has no effect on

these results.

5. Knowing someone will be hurt, but not knowing when that person will be hurt,

reduces judgments of intentionality.

860 Mueller et al.

6. Knowing that someone will be hurt, but not knowing how the injury will occur,

creates a boundary effect, triggering few judgments of intentionality and signifi-

cantly smaller consequences across various remedies.

7. People believe that an employer should pay the medical expenses of an employee

injured on the job regardless of the employer’s state of mind or amount of

knowledge regarding the injury.

We relate these findings to current legal doctrine and to potential policy

considerations.

II. Liability and State of Mind

Both law and social norms take into account the state of mind of the person who conducts

a bad act in deciding how harshly to judge him or her. Criminal and civil law each attempt

to distinguish various culpable states of mind. The criminal law tries to draw subtle distinc-

tions among those who commit acts purposely, intentionally, willfully, knowingly, recklessly,

negligently, and innocently. The Model Penal Code (MPC) (ALI 1962) defines four cul-

pable mental states: “purposely,” “knowingly,” “recklessly,” and “negligently” (§ 2.02).

“Intentionally” and “with intent” are defined in the Code as “purposely,” and much statu-

tory language tends to use “intentionally” rather than “purposely” (Model Penal Code

§ 1.13).1Under the MPC, a requirement that an act be done “willfully” is generally satisfied

by acting “knowingly with respect to the material elements of the offense.” Case law has not

always agreed with this definition, as “ ‘[w]illfully’ is a ‘notoriously slippery term,’ a ‘cha-

meleon word’ that takes color from the text in which it appears” (United States v. Starnes

2009). In some instances it has actually been held to mean something more than intention-

ality: “[I]n general, ‘willfully’ means more than acting intentionally when it is used con-

junctively with ‘knowingly’ ” (United States v. Wheeler 2008). “Knowingly” itself is also ill-

defined; the MPC simply states that a culpable actor must be “aware that it is practically

certain that his conduct will cause such a result” (§ 2.02(b)). “Practical” certainty leaves

room for a large overlap with the “substantial certainty” standard used to assess recklessness;

indeed, several courts have interpreted “substantial” as equivalent to “near certain” or

“almost certain” (Sebok 2001; Rapp 2008). Reckless behavior, under the MPC, requires that

an actor “consciously disregard a substantial and unjustifiable risk,” while negligent behav-

ior requires that the actor merely “should be aware of a substantial and unjustifiable risk”

(§§ 2.02(c), 2.02(d)). These distinctions are not easy to draw and, as Kenneth Simons

(1992) has pointed out, courts are not always consistent in drawing them.2Nonetheless, the

1E.g., 18 U.S.C. § 248(a), which criminalizes intentional interference with individuals who attempt to obtain services

at family planning facilities. There are many others; a LEXIS search of (TEXT (intentionally)) in the U.S. Code library

identifies more than 200 federal statutes in which the word “intentionally” is contained in the text. There are more

than 3,000 such laws in the state code library.

2The cases we have used to represent the various states of mind do not attempt to deal with these gray areas; they were

written for each to clearly exemplify one certain state of mind.

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