GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2009

Status

Accepted

Abstract

This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness while the majority of states require only emotion reasonableness. I explore possible reasons for the reluctance to require act reasonableness. I then offer a different way to understand act reasonableness. Under my suggested reform, the reasonableness of the provoked defendant’s action would depend on the type of force and degree of force he used in relation to the triggering provocation. In other words, act reasonableness would entail a kind of proportionality review. Proportionality, however, would not mean that the provoked defendant would have to respond with force equal to the force used by the provoker. The defendant’s act would just need to be seen by the jury as commensurate with the wrong inflicted by the provoking party.

In Part II, I examine the doctrine of self-defense. A similar distinction between emotion reasonableness and act reasonableness exists in the self-defense arena. Even though act reasonableness is implied in self-defense doctrine’s proportionality requirement, jury instructions on self-defense tend to focus only on emotion (or belief) reasonableness. Jurors are instructed to find that the defendant reasonably believed (or reasonably feared) deadly force was necessary to counter an imminent threat of death or grievous bodily injury. Jurors are not instructed to separately find that the defendant’s act of shooting or stabbing or beating the victim was reasonable. I argue that self-defense doctrine should make explicit that which is implicit. Jurors should be instructed to find not only that the defendant reasonably believed deadly force was necessary to counter an imminent threat of death or grievous bodily injury, but also that the defendant’s acts were reasonably proportionate to the threatened harm.

In Part III, I conclude that my proposal for reform of the doctrine of self-defense is not a radical reform. My proposal with regard to self-defense merely makes explicit that which is implicit. In contrast, my proposal for reform of provocation doctrine constitutes a substantial departure from current practice in most jurisdictions. I argue that this departure is worthwhile because the provoked killer has taken a human life and therefore deserves heightened scrutiny of the reasonableness of his actions.

GW Paper Series

GWU Law School Public Law Research Paper No. 450; GWU Legal Studies Research Paper No. 450

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