Instructing On The Objective Reasonable Person Standard, Part II

by Thomas Lundy

Jurors should also consider how the defendant’s perception may have been "shaded by knowledge or perceptions of ancillary or antecedent events." (State v. Marr (MD 2001) 765 A.2d 645, 652; People v. Humphrey, supra; cf., People v. Goetz (NY 1986) 497 N.E.2d 41; see also Dressler, Battered Women and Sleeping Abusers: Some Reflections, 3 Ohio St.J.Crim.L. 457 (2006); but see Krause, Distorted Reflections of Battered Women Who Kill: A Response to Professor Dressler, 4 Ohio.St.J.Crim.L. 555 (2007.)) While the antecedent threat doctrine has typically been considered in circumstances involving prior threats or violence by the victim on previous occasions (see, e.g., People v. Bush (CA 1978) 84 Cal.App.3d 294), the rationale of the doctrine applies to any violence or threat which precedes the act of defense. "A person claiming self-defense is required to ‘prove his own frame of mind,’ and in so doing is ‘entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.’ [Citation.]" (People v. Minifie (CA 1996) 13 Cal.4th 1055, 1065.) "The defendant’s perceptions are at issue. . . [and therefore] . . . threats are relevant to the defendant’s state of mind -- a matter ‘of consequence to the determination of the action’[Citation] -- and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant’s actions were justified." (Minifie, 13 Cal.4th at 1066; see also People v. Moore (CA 1954) 43 Cal.2d 517, 528; People v. Gonzalez (CA 1992) 8 Cal.App.4th 1658, 1664.) 

State v. Peoples (MO 1981) 621 S.W.2d 324, 327, summarized this principle as follows: "The developed law of self-defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of the victim, and described acts of violence by the victim upon the defendant as those incidents may bear to prove the basic elements of the defense. [Citations.] A mere direction to the jury to consider such proofs does not suffice. That is because those aspects of evidence are ‘the very heart of self-defense.’ [Citation.] In a word: such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of the basic self-defense instruction. [Citations.] Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense, and not at the time of a determined provocation by the victim. They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. [Citations.]" [Emphasis added.] 

Similarly, the Alabama courts have long held that the accused is entitled to the following instruction which focuses on the defense theory of victim threats or violence: "I charge you, members of the jury, that while threats alone will not serve as a justification for a homicide, if the jury believes from the evidence that the deceased, at the time of the homicide, was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide."" (See Quinlivan v. State (AL 1989) 555 So.2d 802, 804.) This instruction is required "when a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death." (Ibid.) "‘An accused is entitled to the charge in question whenever some evidence of self-defense has been offered and some testimony of a threat and its attempted execution has been presented.’ [Citation.]" (Ibid.) 

Nor do general self-defense instructions, which do not specifically address the issue of threats or violence by the victim, suffice. "[E]ven though the trial court ‘fully and fairly’ instructs the jury on the defense of self-defense, because the general law of self-defense does not cover the situation expressed in the charge [the victim threat/violence instruction should be given on request]." (Quinlivan, 555 So.2d at 204; see also Hunter v. State (AL 1975) 325 So.2d 921, 925 [threat concept not covered by other charges which had "no mention of ‘threats’"]; see also State v. Peoples (MO 1981) 621 SW2d 324, 328 [evidence of threat and act of violence by victim shortly before the act of defense required sua sponte instruction on antecedent threats and failure to so instruct was prejudicial error.]" 

II. Consideration Of Impairments To The Person’s Ability To Perceive 

It is often argued that consideration of factors which may impair a person’s perception are subjective in nature and, therefore, inappropriate for consideration under the objective reasonable person test. Such arguments suggest that the measure must be from the perspective of an "ordinary, prudent man." (See e.g., Arkansas Model Jury Instructions - Criminal, AMCI 2d 705 [Justification--Use Of Deadly Force In Defense Of A Person].) However, the principle of a "reasonable person in the defendant’s situation" necessary requires considerations of potential impairments affecting the person’s perception. Just as the jurors should consider how perception may have been "shaded by knowledge or perceptions of ancillary or antecedent events" (Marr, 765 A.2d at 652) so too should they consider how perception may have been shaded by the person’s physical or mental impairments. "The actor’s ‘situation’ takes into account his ‘personal handicaps and some external circumstances,’ such as ‘blindness, shock from traumatic injury, and extreme grief’ but hot his ‘idiosyncratic moral values.’" (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.10(b)(10), p. 264.) This principle becomes clear when considering the impact of battered person syndrome on the reasonable person syndrome. (See e.g., Bechtel [jury should be instructed to consider whether "a person , in the circumstances and from the viewpoint of the defendant, would reasonably have believed that she was in imminent danger of death or great bodily injury." (emphasis added)]; People v. Humphrey, 13 Cal.4th at 1083 ["similar situation with similar knowledge"].) Thus, any evidence which would shade or impair the person’s perception could be relevant to the person’s knowledge of the circumstances and. Thus, is a factor for the jurors to consider. (See e.g. People v. Ochoa (CA 1993) 6 Cal.4th 1199, 1204 [intoxication relevant to issue of whether a reasonable person "would have been aware" of the risk involved]; State v. Cope (OH 1946) 67 N.E. 2nd 912 [one may properly act in self-defense not only when a reasonable person would so act, but when one with the particular qualities of the defender himself would do so; a nervous, timid, easily-frightened man is not measured by the same standard as a stronger, braver man]; compare Heller, "Beyond the Reasonable Man? A Sympathetic But Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases," 26 Am.J. Crim.L. 1 (1998).) 

Similarly, physical deficiencies such as nearsightedness, deafness, and epilepsy are generally circumstances to be considered when asking whether the defendant acted as a reasonable person would have acted. (See People v. Mathews (CA 1994) 25 Cal.App.4th 89, 99; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.12(a), p. 281.) 

SAMPLE INSTRUCTION 

Consideration of Prior Knowledge Or Experience 

SAMPLE INSTRUCTION:

The standard is whether a reasonable person in the same circumstances as the defendant and having the same physical attributes as the defendant when compared to those of the person who attacked him, (and who had the same prior knowledge of the person who attacked him [when appropriate]), or (had similar prior encounters with assailants in the past [when appropriate]) would have believed that deadly physical force was necessary to prevent serious physical harm or death to [himself] [another person].

[See People v. Goetz (NY 1986) 497 NE2d 41, 52; see also Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case (NEW YORK) 5.41 [Defenses-Justification–Another Form] (West, 1999).]

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