Study Suggests People May Struggle to Differentiate Knowing Conduct from Reckless

A recent article in the New York University Law Review argues that people may have a difficult time distinguishing between knowing and reckless conduct. The authors sought to ascertain how well jurors can distinguish between the four culpable mental states set out in the Model Penal Code and followed to varying degrees by most states: conduct that is purposeful (or intentional), knowing, reckless, or negligent. They conducted experiments in which people read short scenarios involving protagonists causing harm. The test subjects then had to assign punishment rankings for the behavior in the scenarios. Some test subjects were given jury instructions with the definitions of the various mental states, while others were not.

The authors found that test subjects were generally able to distinguish between the mental states appropriately (in other words, they punished purposeful conduct more than negligent conduct, and negligent conduct more than blameless conduct, etc). However, the authors found that test subjects struggled to differentiate between knowing and reckless conduct, even when given jury instructions explaining the difference.

The authors concluded that if their results can be confirmed in subsequent studies, possible reforms could include (1) improving jury instructions or (2) abandoning the distinction between knowing and reckless crimes, at least for those crimes where the distinction has a large difference in possible sentencing, such as homicide.