Instructing On The Objective Reasonable Person Standard, Part I

by Thomas Lundy

The objective reasonable person standard is, of course, prominent in the civil arena when tort-negligence is at issue. However, this standard is also important in criminal cases. The objective standard is used to evaluate defense theories such as self defense, duress, and provocation/heat of passion. Moreover, the reasonable person standard also may apply to the knowledge or belief elements of certain offenses or prosecution theories. The following is the first of a two-part discussion which attempts to identify potential defense theories applicable to the reasonable person standard and how the reasonable person jury instructions may be modified or supplemented in light of these defense theories. Part I will discuss various definitional iterations of objective reasonableness and Part II will discuss the impact of external events and the defendant’s physical and mental impairments upon the reasonable person analysis.

In criminal cases the reasonable person standard may become an issue when the accused relies on affirmative defenses such as self defense. For example, in most jurisdictions the case law and statutory law on self defense generally require that the defendant’s belief in the necessity of using force to prevent harm to himself be a "reasonable one." (La Fave 10.4(c)) (2nd Ed. 2003)) This is an objective requirement which requires consideration of how a "reasonable person" would have responded. (Ibid.; see also State v. Coffin (NM 1999) 991 P.2d 477 [the appearance of immediate danger and being placed in fear thereby are totally subjective, to which is added the objective requirement that a reasonable person in the same circumstances would have reacted similarly]; 73 ALR 4th 993 (1989); but see Vigil v. People (CO 1960) 353 P.2d 82 [instruction that right to self-defense is based on what reasonable persons would do under similar circumstances held error; animals who cannot reason, instinctively act in self-preservation, so self-defense by mankind is not based upon the reasonable man concept]; cf., Model Penal Code § 3.04(1) [requiring only that the defendant "believe" that the use of force is necessary].) Thus, even if the defendant’s belief is "reasonable to him," it may not suffice to justify self defense. (See People v. Goetz (NY 1986) 497 N.E. 2d 41 [error to merely require that defendant’s belief be "reasonable to him"].) On the other hand, even a mistaken belief may be reasonable because, as Mr. Justice Holmes observed in afamous expression: "Detached reflection cannot be demanded in the presence of an uplifted knife." (Brown v. United States (1921) 256 U.S. 335; see also State v. Marr (MD 2001) 765 A.2d 645; Commonwealth v. Glass (MA 1988) 519 N.E.2d 1311.)

The tort-negligence concept discussed above with reference to self-defense may also be employed in defining the elements of a criminal offense. For example, some statutes allow knowledge to be proved constructively by showing that the defendant reasonably should have known the required fact. (See e.g., State v. Cole (AZ 1992) 838 P.2d 1351, 1352 [whether reasonable person in defendant’s position would have believed that he was being arrested]; United States v. Ruiz (5thCir. 1995) 43 F.3d 985, 990 [drug quantity element as to each particular defendant based on what the defendant knew or should have known].) Similarly, criminal liability which is based on "criminal negligence must be evaluated objectively." (Walker v. Superior Court (CA 1988) 47 Cal.3d 112, 136.) In any such case – where wrongful intent is absent due to the lack of actual knowledge – the "heightened requirements" of criminal negligence require the jury to find that a "reasonable person in defendant’s position would have [had the requisite knowledge]." (Williams v. Garcetti (CA 1993) 5 Cal.4th 561, 574; see also People v. Simon (CA 1995) 9 Cal.4th 493, 507-23 [willfully requires actual knowledge or criminal negligence].)

A particularly important application of the reasonable person construct may occur in jurisdictions which employ the natural and probable consequences formulation of criminal liability for accomplice liability. Under this theory of liability an accomplice may be liable not only for the target crime but also any other crime committed by the perpetrator which crime was a "natural and probable consequence" of the target crime. This draconian theory of liability allows the accomplice to be held liable for far more serious crimes than the original target offense based solely on the tort-negligence theory of reasonably foreseeable consequences. (See e.g., People v. Croy (1985) 41 Cal.3d 1.) Notwithstanding widespread criticism of this doctrine¹ it continues to be employed. Accomplice liability under the natural and probable consequences rule "is not founded on the aider and abettor’s subjective view of what might occur. Rather liability is based on an objective analysis of causation. . . ." (People v. Woods (CA 1992) 8 Cal.App.4th 1570, 1587; see also Marshall v. U.S. (DC App. 1992) 623 A.2d 551, 563 (Ferren, J., concurring and dissenting); Breland v. Schilling (LA 1989) 550 So.2d 609, 611; State v. Linscott (ME 1987) 520 A.2d 1067, 1070; State v. Stanfield (WI 1982) 314 N.W.2d 339, 344.) "The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor." (Woods, 8 CA4th at 1587.) This requires a determination of "whether a reasonable person under like circumstances would recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted." (Ibid.) Therefore, close scrutiny of the reasonable person instructions applicable to the natural and probable consequences doctrine may be especially crucial. (See e.g., People v. Nguyen (CA 1993) 21 Cal.App.4th 518, 532 [in making the reasonable person determination of whether the charged offense is a natural and probable consequence of the target offense, the jury should only consider "the circumstances leading up to the last act by which the participant directly or indirectly aided or encouraged the principal actor in the commission of the crime. [Citation]."].)

Because objective reasonableness does not turn on the accuracy of the person’s belief as illustrated by the self defense cases (see above), the jurors must necessarily evaluate the actual (read: subjective) circumstances as they appeared to the defendant: "A belief as to either imminent danger or the amount of force necessary to meet that danger, is necessarily founded upon the defendant’s sensory and ideational perception of the situation that he or she confronts, often shaded by knowledge or perceptions of ancillary or antecedent events. The perception that serves as the impetus for responsive action may be incorrect for a variety of reasons, ranging from ignorance of relevant facts that, if known, would put the situation in a different light, to distortions in sensory perceptions, to judgmental errors in the instantaneous assimilation of and appreciation of the apparent situation. The fact that the defendant’s perception is incorrect does not necessarily make it unreasonable; human beings often misunderstand their surroundings and the intentions of other people." (State v. Marr, 765 A.2d at 652.)

From this principle, several important instructional issues emerge as discussed below.

The jurors should consider all the circumstances in applying the reasonable person standard to the defendant. (See People v. Humphrey (CA 1996) 13 Cal.4th 1073, 1087 ["...the jury must consider defendant’s situation and knowledge..."]; see also State v. Augustin (2002) 101 Hawaii 127, 62 P.3d 1097 [under the Hawaiian statute defendant’s belief must be "reasonable," but defendant may only be charged with "knowledge" of those "circumstances" of which he is actually "aware"].) Thus the jurors should consider both the circumstances the defendant actually knew and the circumstances as they appeared to the defendant. (See e.g., CALCRIM 505, para. 3, discussed in Sample Instructions, below; see also State v. Marr, 765 A.2d at 652; People v. Minifie (CA 1996)13 Cal.4th 1055, 1067 [jury must judge whether defendant used only the "force and means ... which would appear to a reasonable person, in the same or similar circumstances..."]; People v. Martinez (CA 1995) 11 Cal.4th 434, 450 [lewd act defined as "any touching of an underage child which appears ‘sexually indecent’ to a reasonable person under the ‘totality of the circumstances ...’"]; Tamborino v. Superior Court (CA 1986) 41 Cal.3d 919, 926 Grodin, J., concurring [observing that in the tort arena conduct is measured by "a reasonable person under the circumstances, as they would appear to one who was using proper care . . ."].)

VI. Defendant’s Situation vs. Position vs. Circumstances

Typically the standard pattern instructions [both criminal and civil] use several alternative and seemingly interchangeable means to describe how the jurors should evaluate conduct or knowledge under the reasonable person standard. These alternatives instruct the jury to consider a reasonable person in the:

(1) "same" or "similar" "situation" – e.g., CALCRIM [California Criminal] 1300, Element 4; 1301, Element 2; 1531, paragraph 3; CACI [California Civil] 64, paragraph 1; CACI 403.

(2) "same" or "similar" "position" – e.g., CALCRIM 3402, paragraph 2, sentence 2.

(3) "the [defendant’s] [person’s] circumstances" – e.g., CACI 1501, Element 3.

(4) "in the same circumstances " or "in ________ [name of defendant]’s position under the same or similar circumstances" – e.g., CALCRIM 3410, paragraph 2, CACI 1305, paragraph 3.

The cases also refer to both terms. (E.g., People v. Robertson (CA 2004) 34 Cal.4th 156, 169 ["reasonable person in defendant’s situation"] People v. Humphrey (CA 1996) 13 Cal.4th 1073, 1083 [defendant’s "position"]; Humphrey, 13 Cal.4th at 1102 ["situation"]; People v. Ochoa (CA 1993) 6 Cal.4th 1199, 1204 ["position"].)

While these alternative iterations of the standard are likely intended to refer to the same considerations – i.e., "..the jury must consider defendant’s situation and knowledge..."(Humphrey, 13 Cal.4th at 1087) – there may be subtle differences in meaning or emphasis that could be important in some cases. For example, "lay jurors may consider ‘position’ to be limited to location." (See Revised Arizona Jury Instructions (Criminal) RAJI inst. 4.04 [Justification For Self-Defense] (CLE State Bar of Arizona, 1996).)

Therefore, to provide the most precise and factually tailored instruction, the better practice would be to instruct the jurors to consider a reasonable person in the "defendant’s situation." (Ibid.) Or, if the person to whom the standard is being applied is not the defendant: "consider a reasonable person in _________________’s <name of person> situation."

Some instructional formulations use both the terms "similar circumstances" and "same circumstances" when describing the reasonable doubt standard. (See VI, above.) However, if the phrase "the defendant’s circumstances" is used there is no need to decide whether to use the term "same" or "similar." If a choice needs to be made, the term "same" seems more precise because the term "similar" could be interpreted to allow more variation in circumstances than would be permissible under the legal principles governing the reasonable person standard.

The instruction formulated in 2006 by California’s Blue Ribbon Committee on jury instructions and endorsed by California’s Judicial Council, (CALCRIM 505), provides a good template for instructions on the reasonable person standard. This instruction incorporates the concepts of knowledge and appearances to a reasonable person in a similar situation with similar knowledge. (But see Section VII, above ["same circumstances" may be more precise than "similar circumstances"].) CALCRIM 505 can found on the California Supreme Court’s website at:

http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrim_juryins.pdf

In evaluating the reasonableness of the [defendant’s [[___________ <person’s>] [act(s)][belief(s)], consider all the circumstances as they were known by and appeared to the [defendant] [___________<person>].

[See CALCRIM 505, Paragraph 3; see also People v Humphrey, supra.]

You are not to judge the actions of _________ [defendant’s name] in the cool, calm light of after-developed facts, but instead you are to judge the defendant’s actions in light of the circumstances confronting the defendant at the time, as those circumstances reasonably appeared to the defendant on that occasion.

[See generally State v. Luckie (SD 1990) 459 NW2d 557; Guthrie v. State (OK 1948) 194 P2d 895; State v. Wheelock (VT 1992) 609 A2d 972; see also Mississippi Model Jury Instructions - Criminal, MJI-Criminal 8:18 [Offenses Affecting Persons: Excusable Homicide; Reasonableness Of Defendant’s Apprehension Of Danger] sentence 1 (West, 2000).]

[The defendant] [___________<name of person>] was required to exercise the care and caution that a reasonable person would have used under the circumstances which existed at the time.

[See Iowa Criminal Jury Instructions 400.7 [Reasonable Belief] (Iowa State Bar Association, 6/96).]

[See generally State v. Luckie (SD 1990) 459 NW2d 557; Guthrie v. State (OK 1948) 194 P2d 895; State v. Wheelock (VT 1992) 609 A2d 972; see also Hubbard, Jury Instructions for Criminal Cases in South Carolina: Defendants Requested Instructions VI(A) inst. 9.1 [Appearances-Perspective Of Defendant] p. 271 (South Carolina CLE, 1994).]

[See generally State v. Luckie (SD 1990) 459 NW2d 557; Guthrie v. State (OK 1948) 194 P2d 895; State v. Wheelock (VT 1992) 609 A2d 972; see also Wisconsin Jury Instructions - Criminal, WIS-JI-Criminal 790 [Coercion] ¶ 4 (University of Wisconsin Law School, 2000).]

[See generally State v. Luckie (SD 1990) 459 NW2d 557; Guthrie v. State (OK 1948) 194 P2d 895; State v. Wheelock (VT 1992) 609 A2d 972; see also Florida Standard Jury Instructions in Criminal Cases 3.04(I) [Duress or Necessity] p. 58a, ¶ 6 (Florida Bar, 1998).]

Consider whether a reasonable person faced with the same facts and circumstances which confronted the defendant would have believed that _________ <insert knowledge requirements for defense at issue>.

[Cf. Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-9 ¶ 3 & 4, p. 8-57.]

[State v. Wheelock (VT 1992) 609 A2d 972, 976.]

In deciding whether the defendant acted in self defense or defense of others put yourself in the situation of the defendant, with [his] [her] characteristics, and [his] [her] knowledge or lack of knowledge, and under the circumstances and conditions that surrounded [him] [her] at the time.

[See generally State v. Luckie (SD 1990) 459 NW2d 557; Guthrie v. State (OK 1948) 194 P2d 895; State v. Wheelock (VT 1992) 609 A2d 972; see also Ohio Jury Instructions, Volume 4 - Criminal, 4 OJI 411.35 [Self-Defense- Tests For Reasonableness] ¶ 2 (Anderson, 2000).]

If a reasonable person in the defendant’s/person’s situation would have _________<insert act at issue>, then the defendant/person acted reasonably.

[See State v. Allery (WA 1984) 682 P2d 312, 314; see also Washington Pattern Jury Instructions - Criminal, WPIC 16.06 [Lawful Force-Detention Of Person] ¶ 3 (West, 2nd ed. 1994).]

It is the defendant’s knowledge of the circumstances at the time (he/she) acted that you must consider. Consider whether in light of the nature and extent of that knowledge, a reasonably prudent person would have _____________ (insert act to which reasonable person standard applies, e.g., recognized the inherent dangerousness of the act).

[Cf. Hrones & Homans, Massachusetts Jury Instructions - Criminal 5-1 [Malice] ¶¶ 15 & 16, p. 5-6 (Lexis, 2nd ed. 2000).]

[People v. Nguyen (CA 1993) 21 Cal.App.4th 518.]

[See Idaho Criminal Jury Instructions, ICJI 707 [Murder And Manslaughter Distinguished] ¶ 2, sent. 2 (Idaho Law Foundation, Inc., 1995).]

When the defendant acted, (he/she) was aware of facts that would lead a reasonable person, in the defendant’s situation, considering all the circumstances as they were known by and appeared to the defendant, to realize that ________ <insert matter alleged to have been constructively known>.

When [deciding, if you can,] [evaluating] whether the defendant reasonably should have known that ________ <insert matter alleged to have been constructively known>, consider all the circumstances as they were known by and appeared to the defendant. That is, consider what a reasonable person in the [same situation as the defendant] [defendant’s situation] [defendant’s circumstances] would have known.

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