University of Minnesota Law School Scholarship Repository Minnesota Law Review 2002 Crime and Consciousness: Science and Involuntary Acts Deborah W. Denno Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Denno, Deborah W., "Crime and Consciousness: Science and Involuntary Acts" (2002). Minnesota Law Review. 747. https://scholarship.law.umn.edu/mlr/747 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Crime and Consciousness: Science and Involuntary Acts Deborah W. Dennot [T]he state of a man's mind is as much a fact as the state of his digestion.1 INTRODUCTION In 1906, psychologist Edouard Clapar~de experimented with the mind. He pricked the hand of a memory-impaired patient while greeting her with a pin concealed between his fingers. As always, the patient failed to recognize Claparode when the two soon met again; yet, she refused to shake his hand, explaining that it might be unpleasant but she did not know why.2 With this test, Clapar~de revealed the dynamics of 1 Professor of Law, Fordham University School of Law. I am most grateful to the following individuals for their comments on this Article: Jerome Bruner, Paul Chevigny, Edward Chikofsky, Dwight Denno, Hal Edgar, Phoebe Ellsworth, Cynthia Estlund, Robert Ferguson, Lawrence Fleischer, Katherine Franke, Kent Greenawalt, Christopher Hale, Nancy King, Dorie Klein, Benjamin Libet, Jack Litman, Henry Monaghan, Ren~e Romkens, Kendall Thomas, Vance Torbert, Lloyd Weinreb, Ian Weinstein, and R. George Wright. For comments on earlier versions of this Article, I thank the participants in presentations given at Cleveland Marshall School of Law (the Criminal Justice Forum), Columbia University School of Law, Emory University School of Law, Fordham University School of Law, the Institute of Advanced Legal Studies (Department of Advanced Studies, University of London), the University of Kentucky College of Law (Randall-Park Colloquium), the Law & Society Association Annual Meeting, New York University School of Law (the Hoffimger Criminal Justice Colloquium), the Renaissance Weekend 50 panels, Vanderbilt University School of Law, and Woodhull Medical and Mental Health Center (Grand Rounds, Department of Psychiatry). I very much appreciate the extraordinary reference support provided by the staffs at Fordham Law School Library, the Diamond Library at Columbia Law School, and the New York Public Library. This Article benefitted from the superb research assistance offered by Janice Greer, Natalie Milani, Michael Pereira, Marianna Politzer, and Michael Rudy, as well as the administrative excellence provided by Daniel Auld and Christian Steriti. Any errors in this Article are, of course, mine only. 1. Edgington v. Fitzmaurice, 29 Ch. D. 459, 483 (1885) (Bowen, L. J.). 2. E. Clapar~de, Recognition and "Me-ness," in ORGANIZATION AND MINNESOTA LAW REVIEW [Vol 87:269 "covert awareness"-the inconsistency between individuals' conscious acts and their unconscious memories, perceptions, 3 and judgments. Clapar~de's research was unusual for its time. For most of the twentieth century, the topic of consciousness, apart from Freudian theory, 4 was not considered fit for serious scientific PATHOLOGY OF THOUGHT 58, 68-75 (David Rapaport ed., trans., 1951) (discussing a patient suffering from Korsakoffs psychosis, a serious memory disorder that prevents individuals from recalling recent experiences). 3. Alan Cowey, Grasping the Essentials, NATURE, Jan. 10, 1991, at 102 (1991) [hereinafter Cowey, Grasping]. Current definitions of these conscious and unconscious processes, and the controversies concerning them, are presented in Part II of this Article. The term "covert awareness" refers to the empirical study of unconscious processes; it is therefore devoid of the psychoanalytic and psychodynamic theories that typically accompany the meaning of the term "unconscious." See Alan Cowey, MacCurdy and Memories: The Origins of Implicit Processing and Covert Awareness, 50 BRAIN RES. BULL. 449, 449 (1999); Glyn W. Humphreys et al., Covert Processing in Different Visual Recognition Systems, in THE NEUROPSYCHOLOGY OF CONSCIOUSNESS 39, 39 (A.D. Milner & M.D. Rugg eds., 1992); see also Matthew Hugh Erdelyi, Psychodynamics and the Unconscious, 47 AM. PSYCHOLOGIST 784, 784 (1992) (explaining that "[alithough the unconscious need not be logically tied to the psychodynamic approach, in practice it usually is"); John F. Kihlstrom et al., The Psychological Unconscious: Found, Lost, and Regained, 47 AM. PSYCHOLOGIST 788, 788 (1992) (noting that "the psychological unconscious documented by latter-day scientific psychology is quite different from what Sigmund Freud and his psychoanalytic colleagues had in mind in fin de si6cle Vienna"). Modern research differentiates between the general concept of "unconscious cognitive processes" and the specific theories presented in Freud's idea of the dynamic unconscious (psychoanalytic theories) or in the ideas of those who adopt Freud's broad outline, but not necessarily all of its details (psychodynamic theories). Philip M. Merikle, Perception Without Awareness: CriticalAwareness, 47 AM. PSYCHOLOGIST 792, 792 (1992). In line with recent research and commentary, this Article uses the terms "conscious" and "unconscious" because increasingly they are interpreted more broadly and are not associated simply with psychoanalytic and psychodynamic theories. 4. Typically, Freud is credited with the "discovery" of the unconscious. Merikle, supra note 3, at 792. A general awareness of the unconscious mind, however, can be traced to antiquity. See LANCELOT LAW WHYTE, THE UNCONSCIOUS BEFORE FREUD 26 (1960). Historians credit the modern origin of the distinction between conscious and unconscious processes to philosophers responding to Ren6 Descartes's identification of the "mind" with conscious thinking. See id. at 26-28. "[T]he idea of unconscious mental processes was, in many aspects, conceivable around 1700, topical around 1800, and became effective around 1900, thanks to the imaginative efforts of a large number of individuals of varied interests and many lands." Id. at 63 (emphasis omitted); see also HENRI F. ELLENBERGER, THE DISCOVERY OF THE UNCONSCIOUS: THE HISTORY AND EVOLUTION OF DYNAMIC PSYCHIATRY 3 (1970) (noting that the origins of "the systematic investigation of the unconscious mind ... can be traced back in time through a long line of ancestors and forerunners"). After the 1868 publication of Eduard von Hartmann's bestseller, Philosophy of the 2002] CRIME AND CONSCIOUSNESS study.5 Consciousness was the "ghost in the machine," 6 an unobservable, immeasurable, phenomenon rendered irrelevant to objective science. 7 Starting in the 1970s,8 however, interest in the topic surged to the current point of "explosion."9 The scientific "race" to understand consciousness is on 10 and the potential for discovery seems boundless." This race within science has far-reaching legal implications. Criminal law, in particular, presumes that most human behavior is voluntary and that individuals are consciously aware of their acts. On the other hand, it also presumes that individuals who act unconsciously, such as sleepwalkers, are not "acting" at all.'2 Under the criminal law's voluntary act requirement, unconscious individuals can be totally acquitted even if their behavior causes serious harm. 13 In contrast to these legal "dichotomies" (voluntary/ Unconscious, the use of the term "unconscious" became fashionable. EDUARD VON HARTMANN, PHILOSOPHY OF THE UNCONSCIOUS (William Chatterton Coupland trans., Macmillan 1884) (1868). An 1877 article by the English philosopher and scientist George Henry Lewes reveals the sophisticated level of dialogue concerning the meaning and definition of these concepts. George Henry Lewes, Consciousness and Unconsciousness, 2 MIND 156, 157-63 (1877). 5. See infra notes 6-7, 119-30, 180-81 and accompanying text. 6. See generally GILBERT RYLE, THE CONCEPT OF MIND 15-18 (1966). "Ghost in the machine" is Gilbert Ryle's derisive phrase depicting the Cartesian view of the human body as an entirely physical thing (the machine) and the human mind as an entirely nonphysical thing (the ghost) that somehow resides within and controls the body. See id. at 11, 15-18. Ryle attempts to undermine academia's centuries-long reliance on the mind/body dualism, contending that the distinctions offered by Descartes are false. Id. 7. BERNARD J. BAARS, A COGNITIVE THEORY OF CONSCIOUSNESS 5 (1988) (noting that "the twentieth century so far has been remarkable for its rejection of the whole topic [of consciousness] as 'unscientific'); see also Anthony G. Greenwald, Unconscious Cognition Reclaimed, 47 AM. PSYCHOLOGIST 766, 766 (1992) (noting that until recently, academic psychologists' skeptical view of the empirical validity of unconscious cognition "partly explains the omission of the topic of unconscious cognition from many textbooks, and even the omission of the word unconscious from the vocabularies of many psychologists"). 8. There were a few exceptions to this paralysis. See, e.g., Cowey, Grasping, supra note 3, at 102 (discussing the work of John MacCurdy, lecturer in psychopathology at Cambridge, who developed a method of studying such dissociations objectively and quantitatively in the