Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom.

Author:Burke, Alafair S.
Position:Brief Article - Book Review

MURDER AND THE REASONABLE MAN: PASSION AND FEAR IN THE CRIMINAL COURTROOM. By Cynthia Lee. New York: New York University Press. 2003. Pp. 371. $45.00.


When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?"

The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. (1) On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual defendant's character traits. (2) This standard is commonly invoked to support the self-defense claims of women who have killed men who have severely and repeatedly abused them. The appropriate model for assessing reasonableness in such cases, the subjectivists argue, is not the reasonable man, or even reasonable person, but rather, the hypothetical "reasonable battered woman." (3) In contrast, opponents of a qualified standard of reasonableness maintain that criminal law must return to its "objectivity." Otherwise, the argument goes, defendants invoking syndromes and "abuse excuses"--most notably the battered woman "poster child" (4)--will literally get away with murder. (5)

In Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Cynthia Lee (6) adds a new dimension to this traditional dichotomy by suggesting that it is not battered women but, rather, members of the traditional "majority culture"--white, heterosexual men (7)--who are most able to manipulate the concept of reasonableness by invoking dominant cultural norms. In a book directed as much to lay readers and courts as to a traditional academic audience, Lee weaves together a troubling and compelling array of case narratives to demonstrate how majority culture defendants are able to benefit from jurors' deeply ingrained biases.

Drawing from three categories of cases in both the self-defense and provocation contexts, Lee tells the story of a criminal justice system in which it is reasonable for a man to strangle his unfaithful wife with a telephone cord, (8) for a heterosexual man to beat a retreating gay man to death for the kind of unwanted sexual advance that most women find commonplace, (9) and for a white homeowner to shoot a Japanese exchange student looking for a Halloween party. (10) Why, Lee asks, are jurors so willing to see fear and passion as "reasonable" when triggered in men by female infidelity, in heterosexuals by perceived homosexual advances, and in white defendants by perceived threats from people of color? They see reasonableness in these cases, she answers, because they share unspoken biases that render male jealousy, heterosexual protectiveness, and white fears of people of color understandable. Because of the role of reasonableness in the law of criminal defenses, Lee argues, juror reliance on biased social norms permits majority culture defendants to claim self-defense and provocation more successfully than nonmajority defendants in these three categories of cases: men who kill because of female infidelity; "gay panic" cases; and "racialized fear" cases. (11)

Lee's reassessment of the reasonableness requirement launches primarily from her concern about this inequity. She then lays the groundwork for "a conception of reasonableness deeper than the prevailing one" (p. 13) by offering three "tentative" (p. 11) recommendations for "theoretical, practical, and doctrinal reform" (p. 11). First, she argues that jurors should be required to apply a normative concept of reasonableness in addition to what she refers to as a "positivist" one (pp. 235-45). Under this normative standard, jurors would focus not only on the empirical question of what most individuals might have believed or done in the defendant's situation, but also on the normative inquiry of what an individual ought to have believed or done (p. 235). Second, she maintains that jurors should evaluate the reasonableness of not only the defendant's beliefs, but also his actions (pp. 260-75). In other words, in provocation and self-defense cases, jurors should consider not only whether a reasonable person would have been impassioned or fearful, respectively, but also whether a reasonable person would have acted in response to those emotions as the defendant did. Finally, and most interestingly, Lee encourages a trial practice of "switching," in which jurors would be asked to switch the races, genders, and sexual orientations of the parties involved in the case in order to expose any hidden biases.

This review analyzes Lee's recommendations in three parts, using a lens of existing law to tease out the old from the new, and using broader debates in the current criminal law scholarship to frame Lee's work. In Section I, I argue that Lee's call for a normative standard of reasonableness, standing alone, is largely a discursive shift in the standard, not a change to current doctrine. In Section II, I discuss Lee's recommendation that jurors evaluate the reasonableness of both the defendant's beliefs and his conduct. Situating her analysis within the broader literature on criminal defenses, I recharacterize her suggestion for an inquiry into "act reasonableness" as a call for criminal defenses defined by flexible standards, rather than by imperfect rules intended to reflect those standards. In Section III, I turn to Lee's suggestion of using "switching" and attempt to interpret it within the broader dichotomy between subjectivity and objectivity. I argue that the practice could be used to create an objective standard of reasonableness in which jurors evaluating reasonableness compare the defendant to a hypothetical "neutral" reasonable person, without gender, race, or sexual orientation.


    The first of Lee's recommendations is that jurors employ both normative and what she refers to as positivist notions of reasonableness when evaluating a defendant's claim of self-defense or provocation (pp. 243-46). In this Section, I suggest that instructing jurors to apply a normative concept of reasonableness in self-defense and provocation cases is unlikely, standing alone, to affect verdict results. Accordingly, Lee's suggestion is best viewed as a discursive shift in the understanding of reasonableness rather than a doctrinal reform that is likely to assuage her equality concerns in female infidelity, gay panic, and racialized-fear cases.

    1. Reasonableness in Self-Defense and Provocation Law

      Evaluating Lee's call for reform in the standard of reasonableness first requires a brief overview of the role that reasonableness plays in the law of criminal defenses. (12) In most jurisdictions, self-defense is justified if the defendant reasonably believed that the force was necessary to prevent an imminent threat of unlawful physical force. Accordingly, jurors must determine not only whether the defendant actually believed that his force was necessary, but also whether that belief was reasonable. (13) Jurors will evaluate the defendant's reasonableness again in applying the requirement of proportionality, which provides that the defensive actor's force must be reasonable in relation to the harm avoided. (14) Moreover, some jurisdictions impose a duty to retreat, requiring the self-defender to pursue reasonable opportunities to retreat safely from the threatened unlawful force. (15)

      Provocation law also involves an inquiry into the defendant's reasonableness by requiring that the alleged provocation be sufficient to trigger a heat of passion not only in the defendant, but also in the reasonable person. (16) Most jurisdictions also impose a cooling-off requirement, providing not only that the defendant must have killed before cooling off from the provocation, but also that a reasonable person would not have cooled off by the time of the killing. (17)

      Lee maintains that current defense law uses a purely positivist or what I would call an empirical notion of reasonableness, asking jurors to decide what a typical person would have believed, felt, or done in the defendant's circumstances (pp. 243-44). Under an empirical standard, jurors define the reasonable person as a "typical" person, similar statistically to most other people. For example, in a self-defense case, jurors would determine whether a typical person in the defendant's circumstances would have perceived a threat of imminent harm. In a case involving provocation, the jury would ask whether the provoking circumstances would trigger a heat of passion in the typical person.

      Lee asserts two separate arguments for rejecting empirical typicality as the sole measure of reasonableness. First, jurors may be inaccurate in their assessments of empirical reasonableness, because diverse communities might hold widely divergent views about what is reasonable. (18) Second, what a majority of society sees as reasonable may be viewed historically as unjust, as, for example, slavery or internment camps. (19) Accordingly, she argues that jurors should be instructed to consider normative reasonableness as well. Under Lee's vision, jurors in self-defense cases would consider not only whether the defendant's response was typical, but also whether he should have responded as he did. In provocation cases, jurors would consider not only whether a typical person would have been provoked, but also whether the defendant should have been provoked.

    2. The Fourth Amendment Analogy

      Much of Lee's development of a normative standard of reasonableness for substantive criminal law defenses draws upon concepts of reasonableness seen in the Supreme Court's...

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