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48.1 Objective Reasonable Person Standard: General Principles

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RATIONALE: Because the reasonable person standard refers to a reasonable person in the "same situation," the instructions should inform the jury that it may only consider matters which were known to the person.

POINTS AND AUTHORITIES: From the general principle that the objective reasonable person standard must be evaluated from the perspective of the actor (FORECITE National™ 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances from Defendant’s Perspective]), only those circumstances about which the actor was aware or reasonably should have been aware may be considered. (See e.g., Anderson v. Creighton (1987) 483 US 635, 641 [107 SCt 3034; 97 LEd2d 523] [determination whether a reasonable person in the officer's position would have known that his conduct would violate the right at issue must be made on the basis of information actually possessed by the officer at the critical time]; Berkemer v. McCarty (1984) 468 US 420, 439 [104 SCt 3138; 82 LEd2d 317] [as to police interrogations under the reasonable person standard "the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation"]; Lilly v. Virginia (1999) 527 US 116, 139 [119 SCt 1887; 144 LEd2d 177] [reasonable person standard as applied to FRE 804(b)(3) requires inquiry focusing on whether "a reasonable person in the declarant’s position..."]; United States v. Yockel, 320 F3d 818, 82-24 (8th Cir. 2003) [as applied to intimidation element of 18 USC 2113(a)] [the objective reasonable person standard is satisfied "if ‘an ordinary person in the [victim’s] position reasonably could infer a threat of bodily harm’..."]; United States v. Foppe, 993 F2d 1444, 1451 (9th Cir. 1993) [same].)

    For example, giving a loaded gun to a madman may or may not be reasonable depending on whether it is known that the person is a madman.  (See LaFave & Scott Substantive Criminal Law" (West, 1986) § 3.7(a)(1) p. 327-328.)

    In sum, the measure of risk is variable based on the known circumstances. (Ibid. [objective reasonableness depends on all the known circumstances].)

    See also FORECITE National™ 88.11.3.1 [Hypodermic Needles: Possession Issues And Defenses].

    See also FORECITE National™ 65.3.2 [Natural And Probable Consequence: Objective Standard Permits Liability Without Actual Awareness Or Intent].

    See also FORECITE National™ 99.3.4 [Resisting Arrest: Lack Of Knowledge That Person Arresting Is An Officer And/Or Making An Arrest].

    See also FORECITE National™ 105.1.3.2 [Defense Theory That Reasonable Person In Defendant's Situation Would Not Have Known He/She Was Fleeing From An Officer].

    See also FORECITE National™ 253.4.11.17 [Self Defense: Reasonable Person Standard -- Must Be Based on Circumstances Known to the Defendant].

    See also FORECITE National™ 256.5.2 [Involuntary Intoxication: Actual Or Constructive Knowledge Of Potential Intoxicating Effect].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

    In deciding whether the defendant acted reasonably, the jury should take into consideration all of the facts and circumstances known to the person at the time of [and prior to] the incident.

[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).]

    In evaluating what circumstances were known to the defendant, consider what the defendant actually knew; not what some other hypothetical person might have known.

    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).]

SAMPLE INSTRUCTION # 3:

    As you have been instructed, to find guilt based on aiding and abetting, one element you must determine is whether a reasonable person in the defendant's position would have known that the charged offense would be a natural and probable consequence of the target offense. In making this determination, you may only consider those circumstances which the defendant knew at the time the act[s], upon which the aiding and abetting allegation is based, were committed.

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PRACTICE NOTE: "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.)

    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 CA4th 89, 99 [30 CR2d 330]; see also LaFave & Scott Substantive Criminal Law (West, 1986) § 7.12(a), p. 281.)

    See also FORECITE National™ 48.1.4 [Reasonable Person's Standard: Consideration of Defendant’s "Situation"].

    See also FORECITE National™ 253.4.11 [Reasonable Person In Defendant’s Situation As Standard For Objective Reasonableness].

    See also FORECITE National™ 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense].

RESEARCH NOTES:

See generally, FORECITE National™ 305.5.5 [Epilepsy].

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PRACTICE NOTE: The defendant should be allowed to introduce evidence of "any prior experiences he had which could provide a reasonable basis for [a belief in the need to use self defense]...." (People v. Goetz (NY 1986) 497 NE2d 41, 52.)

Fletcher, A Crime of Self Defense: Bernhard Goetz and the Law on Trial, The Free Press (1988).

Klansky, Bernhard Goetz, a "Reasonable Man": A Look at New York's Justification Defense, 53 Brooklyn L Rev. 1149 (1988).

Posner, The Proper Standard for Self Defense in New York: Should People v. Goetz be Viewed as Judicial Legislation or Judicial Restraint?, 39 Syrac.L.Rev. 845 (1988).

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RATIONALE: The jurors may improperly assume that the term "position" refers to location. Hence, an instruction describing the reasonable person standard should use a term such as "situation" rather than "position" to assure that the jury considers all of the relevant circumstances.

POINTS AND AUTHORITIES: Some pattern instructions inform the jury to consider a reasonable person in the defendant's "position." However, this may mislead the jury. "In describing the required perspective for deciding whether the defendant’s conduct was objectively reasonable, the jury should be instructed to consider a reasonable person in the "defendant’s situation."  The phrase "in the defendant’s situation" should be used instead of "in the defendant’s position" because lay jurors may consider ‘position’ to be limited to location.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

    In evaluating the reasonableness of the defendant's acts consider all the circumstances as they were known by and appeared to the defendant.

    In considering self defense, put yourself in defendant’s situation at the time it is alleged [he] [she] fired the fatal shot. Consider the circumstances which surrounded the defendant and view the situation from defendant’s standpoint.

[Cf. 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).]

    The defendant 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).]

    If a reasonable person in the defendant's situation would have _________, then the defendant acted reasonably.

For additional samples, see FORECITE National™ 48.1.7 [Reasonable Person Standard: Consideration Of Circumstances From Defendant’s Perspective].

SAMPLE INSTRUCTION # 5:

    Provocation is sufficient if it would have caused a reasonable person, in the same circumstances, to lose self control and act on impulse and without reflection.

[See IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 707 [Murder And Manslaughter Distinguished] ¶ 2, sent. 2 (Idaho Law Foundation, Inc., 1995).]

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    48.1.5    Objective Reasonable Person Standard: "Ordinary, Prudent Man" As Inadequate Description

PRACTICE NOTE: Describing the objective reasonable person standard in terms of an "ordinary, prudent man" (e.g., ARKANSAS MODEL JURY INSTRUCTIONS - CRIMINAL, AMCI 2d 705 [Justification--Use Of Deadly Force In Defense Of A Person]; 706 [Justification--Use Of Deadly Force In Defense Of Premises]; 707 [Justification--Use Of Deadly Force In Defense Of Property] (Lexis, 2nd ed. 1997) is misleading because it fails to allow for consideration of factors applicable to the specific defendant such as physical handicap (FORECITE National™ 48.1.2 [Objective Reasonable Person Standard: Consideration Of Physical Handicaps, Traumatic Injury And Extreme Grief]), Battered Person Syndrome (FORECITE National™ 256.1.2 [Battered Person Syndrome: Challenge To Required Objective Mental State Under On Reasonable Person Standard]), intoxication (FORECITE National™ 48.1.9 [Reasonable Person Standard: Consideration Of Intoxication]), etc.

    Also, use of the term "man" instead of person is improper. (See FORECITE National™ 5.2.8 [Impropriety Of Gender Bias By Use Of Masculine Pronouns].)

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RATIONALE: Without additional instruction the jury may improperly conclude that the reasonable person standard requires perfect judgment.

POINTS AND AUTHORITIES: "Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him." (Brown v. U.S. (1920) 256 US 335, 343 [14 SCt 144; 37 LEd 1137]; but see State v. Elam (IA 1982) 328 NW2d 314, 317.)

    See also FORECITE National™ 253.4.10.3 [Self Defense: Belief May Be Reasonable Even If Mistaken].

    See also FORECITE National™ 253.4.11 [Reasonable Person In Defendant’s Situation As Standard For Objective Reasonableness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

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RATIONALE: Without additional instruction the jury may not understand that the determination of the objective reasonable person standard depends on the circumstances with which the defendant was confronted.

POINTS AND AUTHORITIES: See FORECITE National™ 48.1.1 [Objective Reasonable Person Standard: Circumstances Known To The Person]; see also FORECITE National™ 48.1.4 [Reasonable Person's Standard: Consideration Of Defendant’s "Situation"]; see also Hommer v. State (OK 1983) 657 P2d 172, 174; Guthrie v. State (OK 1948) 194 P2d 895, 901-02 [blind defendant]; State v. Luckie (SD 1990) 459 NW2d 557, 558-60; see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 2-9-8 [Self-Defense Against Assault -- When Force Used In Self-Defense Is Excessive] ["...Reasonable Person In The Same Situation, Seeing What The Defendant Sees And Knowing What The Defendant Knows..."] (State Bar of South Dakota, 2000).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

    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).]

    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).]

    In considering self defense, put yourself in defendant’s situation at the time [he] [she] fired the fatal shot. Consider the circumstances which surrounded the defendant and view the situation from defendant’s standpoint.

[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).]

    The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of his acts and not from the viewpoint of the jury now.

[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).]

    In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offense), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.

[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).]

    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).]

SAMPLE INSTRUCTION # 8:

   Consider whether a reasonable person faced with the same facts and circumstances which confronted the defendant would have believed that he or she was in imminent danger of death or great bodily injury such that it was necessary for him or her to use force to avoid such death or injury.

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

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RATIONALE: Without special instruction the jury may improperly focus on whether or not the defendant's belief was correct rather than if it was reasonably held.

POINTS AND AUTHORITIES: The reasonable person standard requires the jury to consider circumstances as defendant believed them to be. (People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142]; State v. Estrada (HI 1987) 738 P2d 812, 826.) Hence, whether the belief was actually correct should not control. 

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.6; 4.1].

    The term "reasonable belief" means a belief  which could lead a reasonable person in the same situation to the same belief. Whether the defendant's belief was reasonable depends upon how the facts reasonably appear to the defendant. It does not depend upon whether the belief turned out to be true or false.

[See generally People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142]; State v. Estrada (HI 1987) 738 P2d 812, 826; see also MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 306.06-A-4 [Justification: Use of Force in Self Defense] (Missouri Supreme Court Publications, 3rd ed. 9/1/99).]

    Even if mistaken, a belief may still be reasonable.

[People v. Humphrey (CA 1996) 13 C4th 1073 [56 CR2d 142]; State v. Estrada (HI 1987) 738 P2d 812, 826; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 790 [Coercion] ¶ 4 (University of Wisconsin Law School, 2000).]

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PRACTICE NOTE: The question of whether the defendant's intoxication may be considered in applying the reasonable person standard is subject to differing opinions.

    The California Supreme Court has held that intoxication should be considered in deciding if a reasonable person would have foreseen the consequences of his or her action. (People v. Ochoa (CA 1993) 6 C4th 1199 [26 CR2d 23].)

    On the other hand, other cases have held that intoxication of the defendant should not be considered in deciding the objective reasonableness of the defendant's belief in the need to use force in self defense. (See State v. Wheelock (VT 1992) 609 A2d 972, 976 [although individual attributes, such as age, size, strength, stamina, courage and assertiveness, are relevant to whether defendant's beliefs were reasonable, voluntarily induced states of mind such as those caused by drug and alcohol ingestion are not]; see also LaFave & Scott, Substantive Criminal Law (1986) (West) § 5.7(c) p. 654.)

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PRACTICE NOTE: See LaFave & Scott, Substantive Criminal Law (West, 1986) § 3.7(g).

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    48.1.12    Reasonable Person Standard: Actual Subjective Belief Is Relevant To Objective Reasonableness

RATIONALE: Under the objective reasonable person standard the jurors are properly instructed that subjective belief does not suffice. However, without a clarifying instruction the jurors may improperly conclude that any subjective belief is irrelevant and should not be considered at all.

POINTS AND AUTHORITIES: It has been said that under the objective reasonable person test "the only relevant inquiry is how "a reasonable man in the suspect’s position would have understood his situation." (Berkemer v. McCarty (1984) 468 US 420, 439 [104 SCt 3138; 82 LEd2d 317] .) However, this does not mean that the jurors should completely ignore the actual subjective mental state of the person to whom the standard is being applied. (See United States v. Smith, 973 F2d 603, 604 (8th Cir. 1992) ["Evidence that the defendant's acts did induce fear in an individual victim is probative of whether his acts were objectively intimidating"]; cf. FORECITE National™ 78.3.4.4 [Burglary: Theory That Defendant's Actions After Entry Are Relevant To Show Lack Of Criminal Intent].)

    In determining whether the defendant's belief was reasonable, you must determine whether a reasonable person in the defendant's situation would have had such belief. This means that you must consider all the circumstances in deciding whether [his] [her] belief was reasonable. These circumstances include the defendant's actual subjective belief.

    If you have a reasonable doubt whether a reasonable person in the defendant's situation would have had such a belief, you must give the defendant the benefit of that doubt and find that the belief was reasonably held.