Self-Defense: Reasonable beliefs or reasonable self-control?

New Criminal Law Review

Volumn 11, Issue 1, 2008, Pages 51-90

  Simons, Kenneth W ^a  

^a The Honorable Frank R KenisonDistinguished Scholar ^*

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EID: 43849096582     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2008.11.1.51     Document Type: Conference Paper

References (127)

1. Brown v. United States, 256 U.S. 335, 343 (1921).
2. Only four American jurisdictions, it appears, adopt a purely subjective test of self-defense. See Kevin 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, 57 & Appendix (1998).
3. Interestingly enough, English law does not require a "reasonable" belief in the relevant facts in order to grant a full defense; an honest belief suffices. See Andrew Ashworth, Principles of Criminal Law § 4.7(g), at 147 (5th ed. 2006)
4. id. §6.5, at 230 ("[A] putative defence will succeed wherever D raises a reasonable doubt that he actually held the mistaken belief, no matter how outlandish that belief may have been."). However, Ashworth also believes that the subjective test might have to be changed to an objective, reasonable person test in order to conform with the view of the European Court of Human Rights that the actions of those who kill must be evaluated on the basis of facts that "they honestly believed, for good reason, to exist."
5. Id. §4.7(g), at 147.
6. It is also surprising that English legislation and judicial decisions do little to specify or clarify the requirements of necessity and proportionality. Id. §4.7(d), at 139.
7. German law differs from Anglo-American law in employing a more lenient proportionality requirement: The response is unjustifiable only if it is grossly disproportionate to the threat. See T. Markus Funk, Justifying Justifications, 19 Oxford J. Legal Stud. 637, 638-42 (1999)
8. Heribert Schumann, Criminal Law, in Introduction to German Law 396 (M. Reimann & J. Zekoll eds., 2d ed. 2005).
9. It is unclear whether German law requires an actor's beliefs about the elements of self-defense to be both honest and reasonable. Id. According to Fletcher, "[t]he German code contains no legislated solution to the problem." George P. Fletcher, Basic Concepts of Criminal Law 159 (1998).
10. French criminal law requires honest and reasonable beliefs that the relevant facts exist. However, the required elements of necessity and proportionality are not further specified in the governing legislation. Catherine Elliott, French Criminal Law 109-12 (2001).
11. Jurisdictions typically permit deadly force when the defendant is faced with a threat of death, serious bodily injury, kidnapping, or rape, but differ about whether other non-deadly threats (such as robbery, burglary, or other intrusions into a home) suffice. See Joshua Dressler, Understanding Criminal Law 283-87 (4th ed. 2006)
12. Wayne LaFave, Criminal Law 541, 555 (4th ed. 2003).
13. And jurisdictions differ about the requisite imminence of the threat and differ considerably about the existence and scope of a duty to retreat before employing deadly force. Dressler, supra, at 243-48
14. LaFave, supra, at 544-46, 547-49.
15. 48 S.E.2d 264 (Va. 1948).
16. Id. at 266.
17. Interestingly enough, in the actual case, the court dismissed the prosecution, not on the ground of justifiable self-defense, but on the ground that the homicide was "excusable homicide inflicted through misadventure in the lawful repulse of an unjustified attack." Id. at 267. The court declined to rely on self-defense because objectively there was no threat of deadly harm, and because the defendant lacked a purpose to take life or inflict serious bodily harm. This reasoning is unconventional and surprising. A purpose to defend oneself even from a threat of nondeadly force ordinarily counts as self-defense.
18. 418 N.Y.S.2d 651 (N.Y. App. Div. 1979).
19. Id. at 654.
20. Id. at 661.
21. To be sure, the statement "I didn't think I really had an opportunity to drive away" could express either an affirmative exculpatory belief ("I consciously considered the matter and decided I had no realistic opportunity to drive away") or the absence of an inculpatory belief ("I didn't think about the question of an opportunity to drive away; so I didn't have the positive belief that I could drive away").
22. See also Blackhurst v. State, 721 P.2d 645, 648 (Alaska Ct. App. 1986) (reasoning that a defendant's admissions that, when he shot the victim, "he 'panicked,' 'was in shock,' 'wasn't thinking,' and might have had the opportunity to retreat by jumping overboard" all "tended to disprove" his claim of self-defense).
23. Thus, I am not suggesting that a defendant is justified in employing self-defense when his conduct is a pure reflex reaction characterized by no thought or intentionality at all. Moreover, in order for the issue of a defense even to arise, the actor must have satisfied the mental state requirements for the crime of which he would, absent a defense, be guilty (such as murder or assault). In the case of murder, the actor typically must have acted with purpose to kill, knowledge that he will kill, or extreme recklessness or a depraved heart. All of these states of mind (with the possible exception of common law depraved heart) require at least some consciousness of the risk that his acts will kill. What if D's use of force is (objectively, i.e., in view of the actual external facts) justified but D is not aware of any of the justifying facts? (Unknown to D, V is posing a threat of harm.) Scholars differ on whether unknowing justification should lead to full liability or to a reduction to attempt liability (or sometimes to no liability at all). For a recent discussion of the debate, see R.A. Duff, Rethinking Justifications, 39 Tulsa L. Rev. 829, 842-50 (2004).
24. But this debate is orthogonal to the issues I am discussing here, since I do assume that the defendant is motivated by a defensive purpose, and I then explore whether defendant should be entitled to a defense if he is unaware of or lacks a belief about some of the justifying facts. What if D is aware of the justifying facts but does not act for the purpose of defending himself? (D sees that V is a threat; he would ordinarily permit the minor assault without defending himself; but on this occasion, he takes the opportunity to violently push V away only because of personal dislike for V.) The law is unclear. For a discussion, see Paul Robinson, Criminal Law 973 (1997). The issue is not significant to this paper: If indeed such a defendant should be justified, then I would replace the minimal requirement "must act for the purpose of self-defense" with something like "must act with the belief that he is facing a serious threat of violence if he does not respond with force."
25. I deliberately use the term "no belief" rather than the more familiar terms "mistake" and "ignorance." "Mistake" is inapt here because it refers to an actor's actual belief that is contrary to fact, whereas I am addressing the situation in which the actor lacks a belief either that certain facts exist that would justify him, or that certain facts exist that would not justify him. I take it for granted that the actor is entitled to a full defense of self-defense if he possesses all the requisite honest and reasonable affirmative beliefs that, if true, would justify him (a belief that deadly force is threatened, that deadly force is immediately necessary, and so forth). "Ignorance" is also not quite the right term to use here, though it is more difficult to explain why. Suppose defendant is suddenly attacked and does not realize that he is being attacked with nondeadly rather than deadly force, or does not realize that he could safely retreat. In a sense he is "ignorant" of these facts. But suppose (as in my hypothesized scenarios) he has not even adverted to the possibility of these facts being true. Then I think it is more natural to say that he has "no belief" about these facts, not that he was "ignorant" of them. By contrast, if someone asks me to name the U.S. Congressman from Idaho, I would claim ignorance: I am adverting to the factual question but am unable to answer it with any level of belief. Perhaps one reason for a reluctance to employ "ignorance" in my scenarios is that the actor's failure to advert to the facts in question is perfectly understandable, given the sudden attack; and "ignorant" often carries a pejorative connotation. (But not always. We would naturally describe an unconscious patient under anesthesia as "ignorant" of an unplanned procedure that the doctors perform while she is unconscious.). In any case, the choice of terminology here is a linguistic question, and not of substantive importance.
26. For some recent discussions, see Duff, supra note 12
27. Kimberly Ferzan, Justifying Self-Defense, 24 Law & Phil. 711 (2005).
28. For example, suppose, after the fact, it is clear that me assailant was only threatening to shove the actor.
29. "Reasonable ignorance" might appear to be the analogous term, but it is not. Supra note 13; text accompanying infra notes 55-50.
30. A Fourth possible solution is to emphasize the criminal law requirement that the defendant commit a voluntary act, and to argue that in "no belief" cases, the defendant does not make a sufficiently considered, deliberate choice to satisfy that requirement. But the argument is weak. The voluntariness requirement is not nearly so stringent: Habitual and impulsive actions easily satisfy it. And here, by hypothesis, the defendant has indeed consciously chosen to engage in defensive action of People v Newton, 97 Cal. Rptr. 394 (1970) (the court requires a voluntary act instruction in a case where defendant's conduct might be interpreted as an act of self-defense, but it so requires only because defendant provided credible evidence that he was unconscious when he fired the deadly shot). To be sure, if neuroscientific evidence demonstrates that the effect of the violent threat on the defendant was genuinely to make it physically impossible for him to act otherwise than he did, a voluntary act defense would be plausible. But the current state or the scientitic evidence hardly suggests that defendants subjected to threats are so compelled by the threat that their acts are "involuntary" in the strong sense that criminal law doctrine requires; these acts are not comparable to the acts of those who are physically coerced by another or even the acts of those who are hypnotized.
31. See Michael Moore, Causation and the Excuses, 73 Cal. L. Rev. 1091 (1985).
32. For some useful discussions of subconscious, tacit, and latent beliefs, see Stephen Shute, Knowledge and Belief in the Criminal Law, in Criminal Law Theory: Doctrines of the General Part 171 (S. Shute & A.P. Simester eds., 2002)
33. G.R. Sullivan, Knowledge, Belief, and Culpability, in Criminal Law Theory: Doctrines of the General Fart, supra, at 207, 210-12
34. Kimberly Ferzan, Opaque Recklessness, 91 J. Crim. L. & Criminology 597, 627-45 (2001)
35. R.A. Duff, Intention, Agency, and Criminal Liability 159-65 (1990).
36. see also Kenneth W. Simons, Should the Model Penal Code's Mens Rea Provisions Be Amended?, i Ohio State J. Crim. L. 179, 192-93 (2003).
37. One complication here is that jurisdiction following the Model Penal Code's definition union or recklessness as "conscious" disregard or a risk must adopt a narrower conception of both recklessness and knowledge, a conception that has much less room for latent beliefs. For "consciouseness" of a risk or fact must mean that the actor either is preoccupied in his thought with the risk or fact, or at least has some level or specific contemporary awareness of it. And because recklessness requires consciousness, "knowledge" or "belief" in a fact edge as a more culpable state of mind than recklessness; it would therefore make no sense to impose on the state a more stringent proof requirement (i.e., to require the state to prove consciousness) only for the less culpable state of mind, recklessness, and not for the more culpable, knowledge.
38. 20 However, it is worth noting that the rational for not unduly expanding latent or tacit knowledge when we are interpreting the scope of "belief" or "knowledge" as to an offense element (specifically, the need to distinguish between "did know" and "should have known") is not the same as the rationale for not unduly expanding latent or tacit knowledge when we are interpreting "belief" as to the element of a defense. In the latter case, if there is a sufficient policy reason for limiting defenses to actors who possess actual knowledge of or belief in certain facts supporting the defense, then the reluctant to read "belief" expansively obviously has the effect or excluding a defense and thus imposing, rather than excluding, criminal liability. So it is at least conceivable that the law should take a more expansive view of "belief in the context of defenses. Just how expansive this interpretation should be depends on now rigorous our expectation is that the actor invoking a defense must act for all the right reasons and with all the right (exculpatory) beliefs.
39. Model Penal Code §2.09 (1) (Proposed Official DrafT 1962).
40. See, e.g., R.A. Duff, Rule-Violations and Wrongdoings, in Criminal Law Theory: Doctrines of the General Part, supra note 18, at 64 (describing a case in which a tortured defendant reveals secret information)
41. Jeremy Horder, Excusing Crime 48-52 (2004). Another rationale for duress as an excuse is that an actor whose own life or welfare is at stake might (even if not panicky or thinking irrationally) understandably though unjustifiably overvalue his own welfare, relative to the interests of other victims or of the community. This excusatory rationale, too, sometimes applies in the context of self defense.
42. See Model Penal Code, art. 3, introduction, curt. at 3-4 (Official Draft and Revised Comments 1985): For many cases of self-defense it would probably be generally agreed that the use of deadly force was actually desirable, but for others, e.g., resistance by one family member to attack by another, there would be disagreement whether the use of deadly force was actually desirable or should merely be accepted as a natural response to a grave threat.
43. See also Kent Greenawalt, The Perplexing Boundaries of Justification and Excuse, 84 Comm. L. Rev. 1897, 1904-06 (1984)
44. Heller, supra note 2, at 28-3o. (I do Take issue, however, with the assumption in this passage that the conduct in question must, in order to count as a justification, be "desirable" as opposed to morally permissible.)
45. Consider the legal status of the duty to retreat. American jurisdictions universally exclude the duty when the actor is using only nondeadly force, and either deny or narrowly restrict the duty even when the actor is using deadly force. One plausible rationale for the policy is an excuse based on psychological realism: Many or most citizens simply win nor retreat in the face of threats of violence, and this reaction is understandable though not commendable or socially acceptable. See Greenawalt, supra, at 1906.
46. Moreover, in many self-defense cases resulting in death, The deceased has provoked the defendant by his initial assault, and that provocation is often legally sufficient to warrant a mitigating instruction on voluntary manslaughter However, I am focusing on when a defendant who is suddenly attacked is entitled to a full, rather than partial, defense.
47. German criminal law includes a provision that somewhat resembles my proposal. See Strafgesetzbuch [StGB] [Penal Code] 1987, as amended Dec. 19, 2001, §33,
48. "Excessive Self-Defense" ("If the perpetrator exceeds the limits of necessary self-defense due to confusion, fear or fright, then he shall not be punished."), translated in The German Penal Code §33 (Stephen Thaman trans., 2002).
49. This provision seems to reflect an excuse perspective, though it also might reflect a justification perspective, insofar as a properly motivated actor using sound judgment might nonetheless, in the confusion and suddenness of an attack, fail to form the beliefs about the facts supporting self-defense that the law normally requires. However, on its face the German provision is extraordinarily broad, allowing the defense whenever the (objectively unjustifiable) response is due to the subjective confusion or fear of the defendant. My proposal is much narrower, allowing the defense only when the actor's confused or fearful response is also consistent with reasonable self-control.
50. I thank Marcia Baron for suggesting this last point. Note, however, that the actor in this last situation sometimes will at least have a latent belief that she will harm the other. See text accompanying supra notes 18-20.
51. Compare Greenawalt, supra note 23, at 1907-09 (justification), with George Fletcher, Rethinking Criminal Law 691-98 (1978) (excuse). For a citation to some of the literature, see Duff, supra note 12, at 838 n.27.
52. See id. at 841-42 (distinguishing "warranted" from "justified" acts, and defining "warranted" similarly to my definition of "Justified").
53. See Greenawalt. supra note 23, at 1907-09.
54. See also Hamish Stewart, The Role of Reasonableness in Self-Defence, 16 Can. J.L. & Juris. 317 (2003).
55. See Shelly Kaaan, Normative Ethics 66 (1998). To be sure, the action-guiding characteristics of reasonable mistake is less obvious, and indeed more often inapplicable, when the mistakes pertains to an element of an offense rather than to a defense. If an actor reasonably believes that a firing range target is a manikin when it is actuallu a human being, and therefore accidentally kills the person, perhaps we should not say that it is actually positively desirable, ex ante, that people acr upon similar appearances in the future. Here, reasonable mistake might be a norm of permissible rather than desirable bahavior (ex ante), or even a matter of excuse, and thus not action-guiding in the strong sense suggested in the text. (I thank Peter Westen for the example and for pointing out this objection.) Similarly, there might be few reasonable mistakes as to nonconsent in rape that we want to encourage, as opposed to permit excuse. Still, I believe that there are many reasonable mistakes, both as to defenses and as to offense elements, that we do want to encourage - for example, the policy of having police officers arrest based on reasonable appearances, or the policy of a liquor store owner to require two photo IDs to ensure that the buyer is above age. It is sometimes better, indeed much better, to engage in an activity or act with a known small risk of harm (that cannot realistically be lowered without incurring significant burdens or costs) than to avoid the activity. Of course, reasonable mistakes about justifications (such as self-defense) are especially likely to be ex ante desirable, because by definition the actor has a compelling (ex ante) reason or "justification" for acting, based on reasonable appearances, to further the interests protected by the justification defense.
56. In this paper, I do not pursue the question whether the justification of self-defense is ultimately rooted in a deontological rationale, a consequentialist rationale, or some combination of the two. Whatever the underlying rationale, I believe that many "no belief" cases warrant a full defense if "honest and reasonable belief" cases do. But the precise contours of my "no belief" proposal would indeed depend on the rationale. For example, if an incentive-focused consequentialist endorses a privilege of self-defense only insofar as the primnry norm against killing, can have absolutely no deterrent effect, he might adopt a narrower version of the proposal than a retributivist who believes that forming and acting upon accurate beliefs in these stressful and constrained situations is extremely difficult but not impossible.
57. See Cynthia Lee, Murder and the Reasonable Person: Passion and Fear in the Criminal Courtroom ch 10 (2003).
58. See also Cynthia Lee, The Act-Belief Distinction in Self-Defense Doctrine: A New Dual Requirement Theory of Justification, 2 Buff. Crim. L. Rev. 191 (1998).
59. See, e.g., Model Penal Code §3.04-09 (Proposed Official Draft 1962).
60. Cf. Kenneth Simons, Does Punishment for "Culpable Indifference" Simply Punish for "Bad Character"? Examining the Requisite Connection between Mens Rea and Actus Reus, 6 Buff. Crim. L. Rev. 219, 247-57 (2002).
61. Recall, however, the qualifications that the actor at least must believe that he is being threatened and must act for the purpose of sel-defense. See text accompanying supra note 12. The "reasonable self-control" language might appear to be a version of the doctrine of provocation, which affords only a partial defense. I address this concern below. See text accompanying infra notes 60-68.
62. Compare this language from the Restatement (Second) of Torts, §70, cmt. b ("[T]he qualities which primarily characterize a reasonable man [for purposes of self-defense] are ordinary courage and firmness.") My emphasis on sound judgment is consistent with the virtue ethics approach to moral decision making. See Rosalind Hursthouse, On Virtue Ethics (i999)
63. Rosalind Hursthouse, Virtue Ethics, in The Stanford Encyclopedia of Philosophy (Edward N. Zaira ed., Fall 2007), http://plato.stanford.edu/ archives/fa112007/entries/ethics-virtue. But I propose it here as a standard that supplements, but does not replace, more cognitive and more rule- like criteria. I hope thereby to minimize the force of the vagueness objection that I believe constitutes a legitimate reason not to employ exclusively virtue-based criteria in the law.
64. Peter Westen has, in private communication, offered a vivid illustration of how even an unemotional, calm actor might justifiably or nonculpably fail to form some of the legally required beliefs. If a former Army sniper receives word that three men are on their way to kill him, and if he coolly tracks the three as each successively approaches his house, he might reasonably be so focused on preventing the immediate threat of the first two that he reasonably fails to notice whether the third assailant is also posing an imminent threat. This is a case in which focusing only on the terms "reasonable self-control" oversimplifies the considerations that explain why his ignorance is reasonable.
65. In private conversation, Kim Ferzan has pointed out that one might view "reasonable self-control" as the metastandard for the justification of self-defense, and then view proportionality and necessity rules as specifications of that standard. But that is not the way in which my approach employs a criterion of reasonable self-control.
66. For discussions of the importance of motive in the context of self-defense, see Ashworth, supra note 2, at 147 (considering the "simple view" that self-defense doctrine should simply ask, "was the use of force an innocent and instinctive reaction, or was it the product of revenge or some manifest fault?" Ashworth goes on to reject this view as too permissive and resting ultimately on excuse rather than justification)
67. Paul Robinson, Criminal Law 469-75 (1997).
68. For discussions of the importance of motives in assessing criminal culpability more genenally, see Douglas Husak, Motive And Criminal Liability, 8 Crim. J. Ethics 3 (1984)
69. Guyora Binder, The Rhetoric of Motive and Intent, 6 Buff. Crim. L. Rev. I (2002).
70. Peter Westen has recently provided a novel, intriguing analysis of how to analyze individualization. He suggests that we: (a) take the defendant precisely as he is, with all of his physical, psychological, and emotional traits, and then "moralize" him, e.g., ask whether his inadvertence was culpable or excusable in light of the degree of his individual incapacities; rather than (b) (the usual approach) start with an abstract, idealized reasonable person and then selectively add some individual qualities of the defendant. Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. (forthcoming 2008).
71. It is not entirely clear how to specify all the elements of necessity and proportionality in terms of the "actual state of the world." After all, even the prediction that the aggressor would have continued the attack is an inevitably uncertain judgment made from a particular epistemic perspective. See Ferzan, supra note 14. One might doubt whether this prediction is much different from asking what a reasonable person in the actor's shoes would have predicted.
72. A general requirement of this sort would, for example, give a full defense (a) to an actor whose reason for ignorance of the relevant facts is culpable or (b) to an actor who failed to exercise resonable self-control. Here are examples of each scenario: (a) a gang member Max is paying insufficient attention to the imminence or non-imminence of an attack by a member of a rival gang because Max is focusing his attention on beating up physical contact with extreme violence.
73. This second constraint, which requires the actor to meet general defense requirements but causes the actor to forfeit the defense if he has an inculpatory beleif, is considerably weaker than the first, which automatically provides a full defense unless the actor has an inculpatory belief.
74. See text accompanying infra notes 53-54.
75. For example, under the Model Penal Code, one has a general (though narrow) duty to retreat if one is planning to use deadly force, but one has no such duty if assailed in his place of work, but then again, one does have a duty if, when assailed in his place ot work, he is assailed by someone else who he knows also works there. Model Penal Code § 3.04(2)(b), 3§.04(2)(b)(1) (Proposed Official Draft 1962).
76. See D. Kahneman & S. Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in Heuristics and Biases: The Psychology of Intuitive Judgment 49 (T. Gilovich, D. Griffin, & D. Kahneman eds., 2002): The essence of such a [dual-processing] model is that judgments can be produced in two ways (and in various mixtures of the two): A rapid, associative, automatic, and effortless intuitive process (some times called System 1), and a slower, rule-governed, deliberate and effortful process (System 2). System 2 "knows" some of the rules that intuitive reasoning is prone to violate, and sometimes intervenes to correct or replace erroneous intuitive judgments. Thus, errors of intuition occur when two conditions are satisfied: System 1 generates the error and System 2 fails to correct.
77. Daniel Kahneman, Autobiography, Nobelprize.org (2002), http://www.nobel.se/economics/laureates/2002/kahneman-autobio.html. Kahneman is here summarizing research from the following article: D. Kahneman & S. Frederick, Representativeness Revisited: Attribute Substitution in intuitive Judgment, in Heuristics & Biases: The Psychology of Intuitive Judgment 49 (T. Gilovich, D. Griffin, & D. Kahneman eds., 2002).
78. See also Oliver R. Goodenough, & Kristin Prehn, A Neuroscientific Approach to Normative Judgment in Law and Justice, 359 Phil. Transactions Royal Society London B 1709, 1713 (2004).
79. See Joseph LeDoux, The Emotional Brain 174-78 (1998)
80. Gretchen Vogel, Scientists Probe Feelings behind Decision Making, 275 Sci. 1269 (i997) (commenting on Antoine Bechara, Hanna Damasio, Daniel Tranel, & Antonio R. Damasio, Deciding Advantageously before Knowing the Advantageous Strategy, 275 Sci. 1293 (1997))
81. J. Lehrer, Followers of Passion, Boston Globe, Apr. 29, 2007, at E3.
82. See H. Stefan Bracha, Freeze, Flight, Fight, Fright, Faint: Adaptationist Perspectives on the Acute Stress Response Spectrum, 9 CNS Spectrums 679 (2004)
83. see also Bracha et al., Does "Fight or Flight" Need Updating, 45 Psychosomatics 449 (2004) (letter)
84. LeDoux, supra note 45, at 149-50.
85. See id. at 163-65.
86. See also Aaron T. Beck, Prisoners of Hate: The Cognitive Basis or Anger, Hostility, and Violence 72 (1999): When we are confronted with a threat, we have to be able to label the circumstances quickly so that an appropriate strategy (fight or flight) can be put into effect. The thought processes activated by threats compress complex information into a simplified, unambiguous category as rapidly as possible. These processes produce dichotomous evaluations, such as harmful/harmless, friendly/unfriendly.
87. See id. at 73 ("primal thinking processes" are generally adaptive for sudden emergencies but tend to "crowd[] out our more reflective thonking").
88. Lehrer, supra note 46, discusses Joseph E. LeDoux et al., The Lateral Amygdaloid Nucleus: Sensory Interface of the Amygdala in Fear Conditioning, 10 J. Neurosci. 1062 (1990).
89. For a less technical discussion, see Joseph E. LeDoux, The Emotional Brain, Fear, and the Amygdala, 23 Cellular & Molecular Neurobiology 727 (2003).
90. Emotions and intuitions are overlapping but sometimes distinct phenomena. "It is possoble for humans to make intuitive judgments about the world that have a low level of emotionality." Goodenough & Prehn, supra note 45, at 1717. In the context of this paper, it is possible for a person under attack to respond relatively calmly and to rely on an intuitive judgment about what response would be appropriate rather than on a set of explicit beliefs about all the legally relevant elements of self-defense.
91. A recent popular book provides a number of examples supporting this assertion. See Gavin de Becker. The Gift of Fear (1997).
92. Model Penal Code §3.04(2)(b)(ii) (Proposed Official Draft 1962).
93. Note that negating belief provisions occasionally are included as inculpatory elements of offenses (nnd not just part of defenses). Consider the MPC's bigamy provision, §230.1 (1)(a), (d), providing that one is guilty of the offense unless, inter alia, he believes that the prior spouse is dead, or reasonably believes that he is legally eligible to remarry. Similarly, the MPC defines perjury as making a false statement under oath when the actor "does not believe it to be true." Model Penal Code §241.1(1) (Proposed Official Draft 1962). See also Shute, supra note 18, at 174.
94. He still must, I assume, believe that he is being threatened with violence. See text accompanying supra note 12.
95. Peter Westen has pointed out to me that a defender of the "reasonable ignorance" approach could solve this overbreadth problem by endorsing a narrow version of the approach under which the actor must be reasonably ignorant of every rearure that bears on culpability regarding self-defense - including, in my example, imminence as well as proportionality. This would solve the problem, I agree, but at the expense of restricting the "reasonable ignorance" approach to extremely rare cases.
96. Consider the comments of Richard Restak, a neurologist and neuropsychiatrist, about the Bernhard Goetz case. According to Restak: [T]here are no reasonable people under conditions in which death or severe bodily harm are believed imminent.... [E]xpectations [that Goetz should have calmed down after the initial threat had passed] are neurologically unrealistic. Once aroused, the limbic system can become a directive force for hours, sometimes days, and can rarely be shut off like flipping a switch. The heart keeps pounding, the breathing - harsh and labored - burns in the throat; the thought keep churning as fear is replaced by anger and finally, murderous rage. At some point in this process memories for ongoing events may become permanently lost; false memories may be created as the frightened and rageful person lives over and over in his mind the act of violence that erupted in him in response to what he perceives as a threat to his life.... Isn't it preferable therefore to face up courageously to these sometimes frightening and unpleasant realities instead of pretending that questions such as those being asked about Bernhard Goetz can be answered by courtroom speculations about how a reasonable person would have responded in his place? To expect reasonable behavior in the face of perceived threat, terror and rage is itself a most unreasonable expectation. Richard Restak, The Law: The Fiction of the "Reasonable Man," Washington Post, May 17, 1987, at C3. Restak's argument obviously assumes that Goetz, and perhaps all other actors who actually respond with defensive force, are incapable of acting otherwise than they do, and thus cannot fairly be criticized for their reactions.
97. For some useful discussions of this topic, as applied to criminal responsibility, see Stephen J. Morse, The Non-Problem of Free Will in Forensic Psychiatry and Psychology, 25 Behav. Sci. L. 203 (2007)
98. Peter Westen, Getting the Fly out of the Bottle: The False Problem of Free Will and Determinism, 8 Buff. Crim. L. Rev. 599 (2005).
99. A recent overview of contemporary neuroscientific evidence that purportedly demonstrates lack of criminal responsibility concludes that the evidence for this bold claim is inadequate, but also finds strong evidence that some kinds of brain dysfunction increase the probability of some kinds of criminal behavion D. Mobbs, H.C. Lau, O.D. Jones, & C.D. Firth, Law, Responsibility and the Brain, 5 PLoS Biology 693 (2007).
100. See Model Penal Code §210.3 (1)(b) (Proposed Official Draft 1962) (manslaughter includes "a homicide which would otherwise be murder [that] is committed tinder the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse"); People v. Berry, 556 P.2d 777, 780 (Cal. 1976)("[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under be given fiacts and circumstances"
101. (quoting People v. Logan, 164 P. 1121, 1122 (Cal. 1917)); People v. Mantriquez, 123 P.3d 614, 640 (Cal. 2005).
102. M. Model Penal Code §2.09(1) (Proposed Official Draft 1962) (emphasis added).
103. Another objection based on the alleged similarity to provocation is that the "reasonably" provoked defendant only obtains a partial, not a full, defense; so why do I endorse a full defense for the actor who exercises reasonable self-control? This objection is unpersuasive because it misunderstands be function of the "reasonableness" requirement in heat of passion doctrine: Its function is not to identify when a person is so seriously provoked that the killing is fully excusable, but instead to identify when a provoked defendant is understandably strongly tempted to react with violence, because it is understandable that he would become highly emotional in response to the provocation. See Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of n Rationable, 73 J. Crim. L. & Criminol. 421 (1982).
104. At the same time, even if a defendant who justifiably has no beliefs about some of the legally relevant aspects or self-defense does not exercise reasonable self-control, sometimes he might deserves a partial defense, analogous to provocation and also to imperfect self-defense. For the latter category permits punishment for a lesser crime, such as involuntary manslaughter rather than murder, when a defendant honestly but unreasonably believes the facts are such as would warrant a complete defense. See Dressler, supra note 3, at 239-40.
105. See, e.g., State v. McDermott, 449 P.2d 545, 548 (Kan. 1969), discussed in Lee, Murder and the Reasonable Person: Passion and Fear in the Criminal Courtroom, supra note 31, at 263. Consider Martha Nussbaum, Upheavals of Thought: The Intelligence of Emotions 24-25 (2001), critiquing the common view that emotions are "non-reasoning movements," unthinking energies that simply push the person around, without being hooked up to the ways in which she perceives or thinks about the world. Like gusts of wind or the currents of the sea, they move, and move the person, but obtusely, without vision of an object or beliefs about it.... Sometimes this view is connected with the idea that emotions derive from an "animal" part of our nature.... Nussbaum objecticts that this view, while picking out certain features of emotional life that are real and important, has omitted others of equal and greater importance, central to the identity of an emotion and to discriminations between one emotion and another: Their aboutness, their intentionality, their basis in beliefs, their connection with evaluation. Id. at 33.
106. See de Becker, supra note 51
107. LeDoux, supra note 45.
108. For further discussion of the relationship of emotion to "rational" or "reasonable" action, see Horder, supra note 22, at 74 ("Actions in anger, or out of fear, can be rationally or truly justified, in that the experience of the emotions in question may be what helps us to behave rationally or in a fully justifiable way" (footnote omitted))
109. Dan Kahan & Martha Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269 (1996) (arguing for an "evaluative" conception of emotion over a "mechanistic" conception that simply evaluates the degree to which emotions, of whatever sort, interfere with the actor's power of self-control)
110. Ronald de Sousa, Emotion, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Spring 2003), http://plato.stanford.edu/archives/ spr2003/entries/emotion.
111. See Peter Westen & James Mangiafico, The Criminal Law of Duress: A Justification, Not an Excuse - And Why it Matters, 6 Buffalo Crim. L. Rev. 833, 897-900, 907-09 (2003)
112. John Gardner, The Gist of Excuses, 1 Buff. Crim. L. Rev. 575, 579 (1998).
113. See also Stephen J. Morse, Culpability and Control, 142 U. Pa. L. Rev 1587, 1618 (1994)
114. Antony Duff, Choice, Character, and Criminal Liability, 12 Law & Phil. 345, 358 (1993).
115. For an overview, see Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inquiries L. 283 (2002). On "reasonableness" tests and excuse, see id. at 314-15
116. Kenneth Simons, Rethinking Mental States, 72 B.U. L. Rev. 463, 551-52 (1992)
117. Duff, supra note 22, at 61-68.
118. The average Boston driver does not use reasonable care, I can affirm as a long-time resident: Of the city.
119. Imagine, for example, that the defendant is suffering intense and inescapable pain at the hands of the aggressor, who is twisting his arm high up behind his back. Cf. Horder, supra note 22, at 85. If the defendant lashes out in violent response in order to stop the pain, we might want to treat the response as excused, but not necessarily justified.
120. To be sure, in his confession, Goetz proudly claimed to have formulated clear beliefs about all of These matters. Specifically, he claimed that if he had had more bullets, he would have fired again and again until the supposed assailants were dead, without regard to whether they were posing a continued threat. People v. Goetz, 497 N.E.2d 41, 44 (N.Y. 1986). At trial, however, the jury discounted the credibility of much of the confession.
121. See George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 30-31 (1988).
122. Stephen Garvey has recently questioned the received view that the use of self-defense is invariably impermissible when affected by racial stereotypes. He argues that even under a test of self-defense requiring honest and "reasonable" beliefs, it is inconsistent with the commitments of a liberal state to cause a person to forfeit the right to self-defense because his honest belief that he needed to use deadly force was influenced by racism or racial stereotypes. Stephen P. Garvey, Self-Defense and the Mistaken Racist, II New Crim. L. Rev. 119 (2008).
123. But see Jody Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes, 46 Stan. L. Rev. 781 (1994)
124. Cynthia Kwei Yung Lee, Race and Self-Defense: Towards A Normative Conception of Reasonableness, 81 Minn. L. Rev. 367 (1996) (proposing race-switching jury instructions to encourage jurors to suppress their unconscious racism and stereotypes).
125. The 1999 Amadou Diallo incident, in which New York City police killed an innocent, unarmed man, is often viewed as the paradigm of unjustified, impulsive police overreaction, since police shot forty-one bullets into Diallo's body. The truth appears to be more complicated, however. Some view the police's conduct as based on a tragic mistake: One of the officers at the scene stumbled to the ground, and the officers understandably believed that Diallo had shot him. For a thorough account, see Jeffrey Toobin, The Unasked Question, New Yorker, March 6, 2000, at 38.
126. See Glanville Williams, Necessity, 1978 Crim. L. Rev. 128, 130.
127. Another pragmatic objection relates to the burden of persuasion. The implications of my proposal vary significantly depending on whether the state has the burden of disproving the defense, or the defendant has the burden of proving it. I have implicitly assumed that the defendant has the burden; thus, I have been concerned about cases in which a defendant lacks one or more legally required beliefs, and responds to a threat justifiably, yet is required to prove those beliefs - a very difficult burden (unless the jury exercises its discretion to nullify the law). But suppose instead that once the defendant satisfies his burden of production and provides some minimal evidence of the legally required beliefs, the state must disprove beyond a reasonable doubt defendant's possession of those beliefs. In such a jurisdiction, in ambiguous situations, defendants have a greater chance of being acquitted. So long as there is minimal evidence that defendant might have had all the necessary exculpatory beliefs, the prosecution will'often have difficulty proving beyond a reasonable doubt that he did not. In short, my proposal will make much less practical difference, relative to current law, if the state has the burden of disproving the defense.