The Legal Model vs

The Psychological Model

© 1994 Donald E. Watson

(Reproduced from Telicom XI, 15: 43, Feb/Mar, 1994.)

The jury in the trial of Eric Menendez couldn't reach a verdict because its members were unable to agree on the defendant's motives in killing his parents. Though many observers were dissatisfied with this outcome, it was the only possible honest result. An acquittal would have mocked the rule of law, and a conviction would have violated the reality principle. That's because the jury was forced to choose between two mutually exclusive models (theories) of human motivation: the Legal Model and the Psychological Model.

The prosecution asked a question based on the Legal Model: "Did the defendant, motivated by greed and hatred, deliberately kill his parents of his own free will?" The defense asked jurors to apply the Psychological Model: "Did he, driven by terror formed throughout his formative years, impulsively kill his parents to save his own life?"

These two models yield two radically different perceptions of the human being. The Legal Model follows archaic moral precepts that hold adult humans accountable for their behaviors as free agents. The California Supreme Court (Drew, 1978) described the model this way: "The criminal law rests on a postulate of free will--that all persons of sound mind are presumed capable of conforming their behavior to legal requirements and that when any such person freely chooses to violate the law, he may justly be held responsible."

What does this authoritative statement mean in terms of the real world? Nothing. The "postulate of free will" is a pure product of the imagination, an untestable axiom by definition. It is religious concept, for that matter. Believing in free will is an act of faith.

This is not to say that legal and religious traditions ignore reality entirely. In fact, very early in the history of the free will doctrine, the question of child mentality needed to be addressed. This accounted for the religious/legal theory of human mental development: Persons are born without free will, and acquire it in equal increments, one-third at a time, on their seventh, fourteenth, and twenty-first birthdays. And with these infusions of free will, they automatically acquire a corresponding degree of moral accountability.

Obviously, free will is a weighty mental attribute. That's why it is astonishing that no one can recall the experience of receiving these birthday gifts. Nevertheless, the law assumes, not only that persons possess free will, but that others can detect it and measure it. Otherwise, persons could not be held morally accountable.

The Psychological Model, in contrast to the Legal Model, recognizes the complexities of real human behavior, as known from experience with real persons. According to this model, humans possess a will--a capacity for making conscious decisions--but their will is never free. It is fettered by a host of factors, including taboos, compulsions, superstitions, ethnic values, and conditioned moral precepts. These mechanisms dictate behavior by creating duress even more intimidating than a gun held to the head. That's because they reside inside the head, in the unconscious mind.

In the real world, human behavior is influenced far less by conscious thoughts than by unconscious emotions, expectations, and perceptions of reality, whether accurate or not. Yet, because the contents of the unconscious mind are invisible, humans cannot fully know their own minds, much less those of others.

Of course, this principle contradicts the Legal Model, which is conceptually blind to the unconscious mind and its products. Legal lore holds that jurors can sort through evidence to accurately--indeed infallibly--determine whether defendants possess guilty minds (mens rea). To accomplish this, of course, they must read the defendants' minds to divine their emotions, thoughts, and intents. This magical process is gratifyingly certain, but it is no more valid than divining the future through reading chicken entrails.

Clearly, if courts were to abandon the Legal Model's method of mind-reading, it would be impossible to pronounce moral judgment on anyone. Nevertheless, with increasing frequency, defense attorneys have been asking jurors to evaluate the behavior of their clients in the light of the Psychological Model. This tactic brings fuzzy images of reality to the courtroom, where it creates a vacuum, making a mockery of the rule of law by promoting vigilante justice: It invites jurors to form verdicts based, not on law, but on their own idiosyncratic beliefs, values, and biases.

The trials of John Hinckley, Jr. and Jeffrey Dahmer might have illustrated this sort of vigilantism. Likely, the Hinckley jurors interpreted the battle of the expert witnesses as "reasonable doubt," finding Hinckley not guilty by reason of insanity. On the other hand, the Dahmer jurors probably considered Dahmer psychotic, but nonetheless found him guilty because they were repulsed by his behavior.

Vigilante juries cannot be prevented by melding legal and psychological precepts, for mixing these two models produces more absurdities. That's because, whether fact is added to fiction, or fiction is added to fact, the result is always fiction. For example, in Drew, the California Supreme Court tried to "bring the law as close as possible to an appraisal of the human being." Following through, the Court instituted the "diminished capacity" defense.

The doctrine of diminished capacity is meaningless, for it provides no frame of reference for measuring it. That is, though diminished implies a relative measure, no reference for full capacity is defined. As a result, the mental capacity of any defendant is arguably diminished. This is precisely what was successfully argued in the notorious trial of Dan White, which spawned the whimsical label, "Twinkie Defense."

The chaos created by introducing the Psychological Model into trials will not be eliminated until the legal system abandons the obsolete notion of moral accountability and its attendant requirement for mind-reading. In its place, trials can be used to determine whether defendants committed crimes--unacceptable actions--without attempting to divine their motives. After this, the dispositions of those found guilty can be determined without the distortions of the adversary process, based on psychological and other real factors. For example, the Menendez brothers, who admitted killing their parents, might be required to apply their remaining fortune to engage in long term psychological treatment, with the goal of habilitating them, if possible, into productive members of society.