ON REASONABLENESS: THE MANY MEANINGS OF LAW'S MOST UBIQUITOUS CONCEPT.

• Author: Newman, Jon O.

"The term 'unreasonable' is no doubt difficult to define. That said, it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning." Sandra Day O'Connor, Associate Justice United States Supreme Court (1) "What is reasonableness? What are its components? There is no consensus on this matter." Aharon Barak, President Supreme Court of Israel (2) The idea of exploring the concept of reasonableness first occurred to me during my years as a District Judge. I noticed that in a wide variety of cases, when I reached the critical portion of a jury charge, I frequently told the jurors that the applicable standard was "reasonableness" or its antonym "unreasonableness." In criminal cases, I told them that conviction required proof beyond a reasonable doubt. In antitrust cases, I told them that agreements in restraint of trade were unlawful if they were unreasonable. In civil rights cases seeking damages for police searches, I told them to apply the standard twice: the homeowner had to prove that the police officer's search was unreasonable, but, even if it was, the officer had a qualified immunity defense if the officer had a reasonable belief that the action taken was lawful.

The more I spoke the word "reasonable," the more I wondered why the jurors never came back and asked, "Judge, could you explain exactly what you mean by 'reasonable'?" Fortunately, they never asked.

In many cases, appellate courts also invoke the concept of reasonableness without explaining it, but in some cases, they have tried to give meaning to "reasonableness," the law's most ubiquitous concept. Four different approaches can be identified, three of which employ what generously can be called an analysis, and a fourth, if it can be called an approach at all, that seems to lack any analysis. This article will consider each of these four approaches in three contexts in the hope that the resulting twelve sections will promote some understanding of what courts are not just saying, but actually doing in cases where "reasonableness" is the applicable standard.

Before discussing "reasonable" in different legal contexts, I first consider the word in ordinary, nonlegal speech and writing as illustrated by the various definitions in a leading dictionary. Some of these definitions use value-laden words without fixed meaning. One definition, for example, is "being in agreement with right thinking or right judgment" (3) and "possessing good sound judgment." (4) Other definitions suggest a result just short of some outer limit--for example, "not extreme" and "not excessive." (5) Others suggest a result near but well within some outer limit--for example, "moderate." (6) That dictionary also offers "reasonable" as a synonym for "rational," and defines "rational" as being "intelligent." (7) These nonlegal uses of the term, which might be termed "colloquial," are significant in their lack of consistent meaning.

Moving from colloquial speech to court interpretations, i start by briefly identifying the four approaches that some courts take with respect to the concept of "reasonableness": (I) viewing reasonableness as a continuum, (ii) balancing or weighing interests and effects, with a balance in favor of positive interests or effects considered reasonable and a balance in favor of negative interests or effects considered unreasonable, (iii) articulating a standard, factor, or factors relevant to determining reasonableness and providing some guidance as to how that standard or those factors are to be applied, and (IV) determining reasonableness without identifying any method of analysis or any standard or factor. i illustrate these four approaches by exploring each in three contexts in which they are applied.

1. REASONABLENESS AS A CONTINUUM

   The first approach considers the concept as a continuum along which unreasonableness is reached at some point, although that point is not clearly marked, nor are criteria identified for determining where that point is located. This approach appears to be inherent in the following contexts: (1) a continuum of certainty implicitly guides the determination of whether guilt is proven beyond a reasonable doubt, (2) a continuum of severity implicitly guides the determination of whether a federal court sentence is unreasonable, and (3) a continuum unrelated to an identified characteristic implicitly guides the determination of whether an interval of time is reasonable.

   1. Reasonable Doubt (8)

      The most familiar context in which the concept of reasonableness can be thought of as a point along a continuum is the traditional phrase of a jury charge instructing that conviction in a criminal case requires proof "beyond a reasonable doubt." (9) A curious aspect of the concept in this context is the view, expressed by many courts, that trial judges should not try to explain to juries what the phrase means. (10) How odd that courts are fearful of giving jurors some guidance as to what they mean by proof "beyond a reasonable doubt."

      Nevertheless, some attempts at elaboration have been made. A widely respected treatise on jury instructions provides a model charge that includes this language: a reasonable doubt is "a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life." (11) The "hesitate to act" formulation probably originated in Posey v. State, (12) was first cited by a federal court in Bishop v. United States, (13) and entered Supreme Court jurisprudence in Holland v. United States. (14)

      I disapprove of this elaboration because I have learned, from asking several people, that it is subject to different interpretations. Some people think it means that if they, as potential jurors, were to think that the evidence leaves them with a doubt comparable to the doubt that would cause them to hesitate before deciding some important matter, then they should vote "not guilty." That understanding seems to be what the instruction literally requires them to do. Other people, however, reject this literal understanding because they almost always hesitate before making important decisions, and they do not think a judge would be telling them to find nearly every defendant "not guilty." For these people, the instruction suggests caution: if they conclude that the evidence has created a doubt comparable to the doubt that would cause them to hesitate before making an important personal decision, they should take a careful look at all the evidence and vote to find the defendant guilty only if they are then quite sure that he is guilty. In other words, for one group, reaching the point of hesitation ends the process of deliberation; for the other group, reaching that point permits the process to continue but with caution. (15) However juries understand this elaboration, the fact that this common "explanation" is ambiguous ought to cast doubt on its utility. (16)

      Another elaboration tells juries that a reasonable doubt is "a doubt based on reason." (17) This elaboration has three defects. First, it runs counter to the idea that a juror should be entitled to vote "not guilty" based only on a gut feeling, without any particular rationale. (18) Second, it can create ambiguity as to whether the juror has a doubt for which a reason can be thought of in the juror's mind or a doubt that the juror can articulate to other jurors. Third, it might mislead a jury to look to the defendant for an explanation. (19) The "based on reason" formulation has encountered some criticism, mostly in an earlier time. (20) In Jackson v. Virginia, the Supreme Court said that "[a] 'reasonable doubt,' at a minimum, is one based on 'reason.'" (21)

      Still a third approach to explaining reasonable doubt urges a numerical standard. Judge Jack B. Weinstein has suggested that burdens of proof can be expressed as percentages of probabilities, with 50 percent for "preponderance," 70 percent for "clear and convincing," 80 percent for "clear, unequivocal, and convincing," (22) and 95 percent for "beyond a reasonable doubt." (23) Judge Wein-stein wrote about percentages of "probabilities," but the concept of probabilities, at least in a technical sense, is inappropriate. Probabilities generally have to do with the likelihood that a particular outcome will occur in the future. (24) For example, if a coin is flipped, the probability that it will come up heads is 50 percent, there being only two equally likely outcomes. What the probability of 50 percent really means is that if the coin is flipped 100 times, it will likely come up heads fifty times. I say "likely" because the number of times the predicted result will occur in a sequence of results depends on standard deviation analysis. The more times the coin is flipped, the more likely it will be that the percentage of times heads will come up will really be fifty.

      Probability analysis, in this technical sense, is not applicable to the standard of proof beyond a reasonable doubt, unless those urging a 95 percent probability for proof beyond a reasonable doubt want a juror to find guilt only when persuaded that if 100 people were tried with the same evidence presented in the defendant's case, at least ninety-five of those defendants would in fact be guilty. (25) It is unlikely that a juror told that beyond a reasonable doubt means a 95 percent probability of guilt would understand the approach just described.

      The Supreme Court pointed toward the most appropriate way to think about reasonableness in the context of the standard of proof for conviction of crime in In re Winship, (26) the decision establishing the "beyond a reasonable doubt" standard as a requirement of due process of law. The Court stated, "[T]he reasonable-doubt standard is indispensable, for it 'impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.'" (27) The Court repeated the "certitude" language of Winship in Jackson v...