The inconvenience of the reasonable person standard in criminal law

: Following American legal sources, I argue that the use of the reasonable person standard in criminal law is inaccurate and unfair, and, therefore, inconvenient to evaluate human behaviour based on three arguments which address flaws of the standard under analysis. Firstly, this standard is by definition abstract, theoretical and general, not reflecting appropriately the person’s sensory and ideational perception of the situation. Secondly, the trend in American legislation and case-law is to apply, in criminal cases, e.g., self-defence, a hybrid criterion, which consists in the consideration of a person’s belief and the correspondence of such a belief to what a reasonable person would believe under the circumstances, as opposed to a purely objective standard. The principle of individual criminal culpability underlies this. Thirdly, the reasonable person standard imposes a sort of majority’s dictatorship by perpetuating a predominant culture disregarding the viewpoints from minority groups.


I . I n T r o d u c T I o n
The standard of «reasonable person» or «reasonable man» is considered as one of the most important criminal law concepts, since criminal law institutions such as the law of murder, duress, provocation, and selfdefence rely on it 1 .This standard is especially important in American criminal law, where its pervasive use is grounded on «the faith in reason as the foundation of law» 2 .Nevertheless, I consider that such an abstract standard is not convenient in criminal law since does provide neither an accurate nor a fair means to evaluate human behaviour.I based this claim on three arguments fleshed out as follows.
I I .P e r S o n'S P e r c e P T I o n a S a n e c e S S a rY co M P on e n T I n c r I M I n a l l aW In criminal cases, e.g., self-defence, some lessons from neuroscience and psychology hold importance, i.e., when human beings face a threat of violence, actions follow a certain pattern that is sometimes characterized by disproportionate or inaccurate reactions 3 .Accordingly, in the exceptional and fast-moving scenario of a violent attack, it is normally unrealistic and unfair to request the person under attack to assess consciously and carefully the specific dimension of the risk posed by the attack, the likely (or feasible) impact of his/her response on the aggressor and the set of alternatives at hand 4 .This process, which is common to most human beings, may even become more blurred by the person's physical or mental handicaps 5 .
Person's perception is also influenced by questions arising out of prior victimization.It is hence fair to ask whether prior victimization is a characteristic of the reasonable person.This question is exemplified via two self-defence cases: «State v. Norman» and «People v. Goetz» 6  mistreatment by her husband during many years and who decided to kill him in his sleep.The latter case concerned a man opening fire against African-American youngsters in the New York City's metro because he believed he was about to suffer a new attack from that racial minority.Should the reasonable person standard, understood as paragon of virtue, be applicable in the aforementioned cases, we will arguably conclude that most persons will always come up short insofar as crime is an anomalous action 7 .Fletcher accurately summarizes this point when he points out: « as everyone is prepared to admit, the reasonable person does not kill at all, even under provocation» 8 .In order to get a nuanced approach, I consider it convenient to adopt a balanced assessment.
Accordingly, even though the prior victimization to which a defendant was exposed may have been very intense, the accused should not be as a matter of principle exonerated completely of criminal liability.Otherwise, we will shift from one extreme, (i.e., reasonable person standard totally disregarding a person's particular perception) to the other (intricacies of the defendant's mind as shaped by prior victimization).The approach followed in «State v. Peoples» reconciles those two extremes as follows: The developed law of the self-defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of 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 9 .Penal Code is a necessary referent.As Fletcher 11 highlights in cases of attempted murder, the U.S. Model Penal Code provides for that there is no liability in case of a good faith mistake in the context of self-defence, regardless of the reasonableness of the mistaken belief 12 .However, the Model Penal Code also imposes liability in cases of unreasonable mistake about conditions of self-defence 13 , reflecting the hybrid character.

I I I . T H e
As for case law, in «State v. Bellino», the Connecticut Appellate Court established the following: «It is settled that a jury's evaluation of a claim of self-defense has both subjective and objective elements» 14 .Similar finding was incorporated in «People v. Goetz» where the following was determined: «[A] determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation"» 15 .The trend is therefore that, following this hybrid standard, particular characteristics of the defendant -physical and others-are infused into the reasonable person standard.This hence subjectivizes what would otherwise be a purely objective standard 16 .
What actually underlies the predominance of the hybrid criterion is one of the very foundations of criminal law: the principle of culpability of the defendant.In other words, modern criminal law concedes a tremendous importance to the painstaking analysis of the criminal mind via categories such as intent, recklessness and negligence.Accordingly, as Richard Singer 17 highlights, reliance on the fictional standard of the reasonable person takes us away from the mental culpability, which is a necessary condition to punish individuals.

I v. T H e r u l e S o F M a J o r I T Y
By definition, the use of objective standards like the reasonable person standard mirrors the rules of the predominant culture and simultaneously excludes the values of other groups in society.In particular, as Cynthia Lee 18 remarks, the use of what is supposedly the reasonable person standard is not truly unbiased and has been used to spread narratives of racial power and violence against women.This is clearly exemplified in criminal law when an accused who possess different cultural background is denied the opportunity to explain how his conduct was reasonable under his tradition due to the mere fact that his action does not meet the «reasonableness» of the American culture 19 .
There is lack of uniformity, at the courts, as to whether and to what extent cultural evidence may be admissible in criminal proceedings.In a deeper level, the reasonable person standard does not only omit minorities' standards but also those of the individuals.Thus, this objective standard dismisses the fact that each human being is unique and, when applied strictly, ignores consideration of relevant circumstances to the concrete case 20 .This leads to anomalous situations: for example, if the beliefs of the accused were honest and correct, but unreasonable, self-defence is not available.Thus, the accuracy or inaccuracy of the defendant's beliefs becomes irrelevant in a model which exclusively privileges reasonableness 21 .
Moreover, the imposition of a reasonable person standard, modelled upon a sort of majority's dictatorship, may trigger a more pernicious effect.Thus, its excessive focus on what the ordinary person would think or do -wrongly or rightly-pays no attention to the fact that the average person might behave in undesirable ways 22 .For example, the ordinary man could get so upset when facing non-violent homosexual advances that he may consider it «reasonable» to use lethal force to repeal them 23 .

v. c o n c l u S I o n
The reasonable person standard has proved to be inconvenient in criminal law.Such an abstract standard necessarily has to incorporate elements ranging from the defendant's sensorial perception to his/her cultural background.As reflected in American legal sources, those elements have actually led to the adoption of a hybrid criterion, whose subjective component is in conformity with the principle of criminal culpability as understood in modern criminal law.
Derecho PUCP, N° 73, 2014 / ISSN 0251-3420 conTenTS: I. InTroducTIon.-II.PerSon'S PercePTIon aS a neceSSarY coMPonenT In crIMInal laW.-III.THe HYbrId crITerIon and THe underlYInG PrIncIPle oF culPabIlITY.-Iv.THe ruleS oF MaJorITY.v.concluSIon.
H Y b r I d c r I T e r I o n a n d T H e u n d e r lY I n G P r I n c I P l e o F c u l Pa b I l I T YThe (objective) reasonable person standard has been substantially nuanced through the incorporation of a subjective element, which has led to a hybrid criterion in criminal cases, including self-defence.This hybrid criterion or test requires the examination of two prongs.Whereas the first prong addresses what the defendant actually believed when, e.g., used deadly force (subjective element), the second prong requires the correspondence of such belief to what a reasonable person would believe under the circumstances (objective component)10  .The adoption of this hybrid test has to a large extent substituted the previously dominant objective reasonable person standard as evidenced both in American legislative practice and case law.As for legislation, the U.S. Model 7 Nourse, Victoria.Op. cit., p. 40.8 Fletcher, George.Rethinking Criminal Law.Boston/Toronto: Little Brown, 1978, p. 247. 9 «State v. Peoples», 621 S.W.2d 324, 327 (Mo.Ct.App.1981).10 Fletcher, George.A Crime of Self-Defense, p. 42.