Abstract
One way in which fact finders are supposed to determine the reasonableness of a defendant is via a counterfactual test that personifies the reasonable person. We are to imagine the reasonable person being in the defendant’s circumstances. Then we are to determine whether the reasonable person would have done as the defendant did. This paper argues that, despite its prevalence, the counterfactual test is a hopeless guide to determining defendant reasonability. In brief, the test is of the wrong sort to give fact finders the requisite guidance. What we are after is not a counterfactual judgment (what the reasonable person would do) but instead is a question of possibility (what could the reasonable person do). However, since the only thing impossible of the reasonable person is being unreasonable, personifying the reasonable person cannot offer any useful guidance on this question.
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Notes
E.g., NY Penal Code 35.15; MPC 3.09(2), Model Penal Code and Commentaries, American Legal Institute.
E.g., MPC 210.3(1)(b) or Girouard v. State.
MPC 2.02(2)(d).
Cf. Peter Westen, “Individualizing the Reasonable Person in Criminal Law” Criminal Law and Philosophy 2: 136–162 (2008): “[I]nstead of asking, ‘Was the actor’s use of force reasonable’, one can just as well ask, ‘Would the reasonable person have used the force the actor employed?’ A reasonable person is reasonableness rendered incarnate” (139, my italics).
MPC 210.6(4)(d).
Importantly, this is not all that would have to be true. For instance, even if Chester’s belief was reasonable, his response would have to be proportional to that threat. Here I am only concerned with the reasonability component of the defense of self-defense, however, not the defense itself.
Here is just one example: “The statute requires, however, that the defendant’s belief be reasonable, and not irrational or unreasonable under the circumstances; that is, would a reasonable person in the defendant’s circumstances have reached that belief,” (State of Connecticut Criminal Jury Instructions, 2.8-1: Self-Defense and Defense of Others, § 53a-19, my italics).
My thanks to an anonymous referee for pushing me on this score.
Cf. John Gardner, “The Mysterious Case of the Reasonable Person,” The University of Toronto Law Journal, 51(3): 273–308 (2001): “To benefit from the provocation defence, the defendant must have ‘reacted reasonably’ only in the sense that he must have been justified in losing his temper to the point at which he was apt to kill. Naturally this does not mean that he was justified in killing” (273).
The MPC opts for a more inclusive category to the legitimate grounds for provocation in traditional common law [MPC 210.3(1)(b)].
That this is a settled question is supported by the observation that fact finders are not asked whether the reasonable person in the defendant’s circumstances, having been provoked, would have reacted by killing the defendant. Other unreasonable action is possible from reasonable beliefs or emotions besides provoked killings. That the defendant was reasonable in believing her safety to be in imminent danger doesn’t guarantee that she was reasonable in using deadly force on her attacker. The defendant’s use of force may have been disproportionate or she may have had a legal duty to retreat.
Some interpret ‘reasonable’ in the law as synonymous with ‘justified’ (John Gardner, “The Many Faces of the Reasonable Person,” Law Quarterly Review 131(4): 563–584, 2015). On this interpretation, it is easy to see why we would be interested in the ‘justified person’ only to the extent that we are inquiring about her justification. Was the defendant’s belief justified? Was her fear? Was her action? All are separate respects in which we might look to the balance of reasons. Interestingly, if one takes reasonability to mean no more than justification, it turns out the counterfactual test is even more clearly problematic (see n. 18).
Thus, I think it a mistake to suppose that the reasonable person, on any interpretation of reasonability, could get things wrong in the relevant respect (cf. Gardner, “The Many Faces of the Reasonable Person”). Though the reasonable person and a defendant could be perfectly identical in their fear or belief of imminent attack, we should not therefore conclude that the reasonable person could be capable of going on to do something unreasonable as a result. To think the reasonable person could do that is simply to supplant her with a different imaginary placeholder—perhaps a reasonable person—once the relevant question has been settled (e.g., whether the defendant’s belief was reasonable).
Additionally, note that if the reasonable person could be such so as to act unreasonably from nonetheless reasonable fear, then being like the reasonable person would not necessarily be to the defendant’s credit, contrary to its usual purposes. Granted, it may better to have acted unreasonably on reasonable fear rather than unreasonable fear, but in that event the only relevant consideration is the reasonableness of the fear, which, I maintain, is the only fear of which the reasonable person is capable.
The latter is especially common in tort law negligence standards to determine whether the defendant took due care, understood as reasonable care.
Cf. Westen, “Individualizing the Reasonable Person in Criminal Law”, 138.
It is important that the guide is the virtuous person and not a virtuous person. The former is an ideal, whereas the latter is a particular embodiment. Only the former is meant to be instructive. As will become clear, the latter is also of no help, since in order to identify a particular agent as a virtuous person we would first have know something about the ideal.
Recall those that take ‘reasonable’ to mean no more than ‘justified.’ How could we determine whether the defendant was justified (in some respect) by considering what the justified person would have done (or believed or feared, etc.)? That question cannot be usefully interpreted in any other way than, “Was the defendant justified (in the relevant respect)?” But since that is the very question the counterfactual test is meant to give guidance on, it cannot give meaningful guidance as to whether an individual was in fact justified.
Cf. The so-called ‘Knobe effect’ (Joshua Knobe, “Intentional Action and Side Effects in Ordinary Language,” Analysis 63: 190–194, 2003).
Compare the Homicide Act of 1957, from English criminal law:
Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked … the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which … it would have on a reasonable man (my italics).
The question posed presumes there is an effect on the reasonable person such actions or words would have. But this is far too narrow a supposition. Surely, the reasonable person could resist being provoked by some reasonably provocative trigger, even if it is not unreasonable to fail to so resist.
At least, no theoretical purpose. Phrasing a jury instruction or rule of law in a particular way could be shown to be instrumentally valuable. For example, by doing a better job of getting fact finders to attend to the appropriate considerations or avoid systematic error. But even if this were the case, the instruction or rule would not be guiding the fact finders, and similar advantages could equally attach to all manner of rationally unconnected processes or methods.
Acknowledgments
My thanks to Gideon Yaffe, Scott Shapiro, and the dinner group discussants at Yale University for their helpful feedback.
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King, M. Against Personifying the Reasonable Person. Criminal Law, Philosophy 11, 725–732 (2017). https://doi.org/10.1007/s11572-016-9403-8
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DOI: https://doi.org/10.1007/s11572-016-9403-8