By Andrew Ingram*
*The University of Texas School of Law, J.D. expected 2013; also a Ph.D. student in the Department of Philosophy; A.B., 2009, Brown University. I would like to thank Professor Larry Laudan for the enlightening seminar that produced this Note. I am grateful as well to the editors and staff of the American Journal of Criminal Law for their hard work in editing this piece.
Mistakes are a fact of life, and the criminal law is sadly no exception to the rule. Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage. In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence. These are intuitive concepts, but as this Note aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them.
The point I aim to make in this Note is subtle, and because it is subtle, I must be careful with the terms I deploy. What is of concern here is not that disagreement which sometimes occurs between the verdicts of morality and the verdicts of our legal system. Rather, it is a disagreement between the facts and the decisions of our criminal tribunals. The law here is the measuring stick by which conduct is judged, and a court may err in applying it in a way demonstrable by an independent observer deploying the same metric. For example, the court says a person found dead was murdered, but an independent party can prove the court wrong, either by showing that the court’s version of the facts is incorrect (the person died of a heart attack) or that the court has incorrectly applied the legal standard to the facts (mens rea was absent). The technical terms introduced below furnish a vocabulary for discussing such cases of error.
I will use the terms juridical guilt and juridical innocence to refer to the decisions of tribunals and the words material guilt and material innocence to refer to the actual match, or lack thereof, between law and fact. A person is juridically guilty if they have been found guilty by the relevant tribunals. Thus, in American law, someone is juridically guilty of a crime if he has been convicted by a jury, a judge has not chosen to set aside the verdict, and the conviction has been sustained if appealed. On the other hand, material guilt requires having actually committed the crime in question. For example, a person is materially guilty of common law burglary if and only if he actually broke into and entered a dwelling at night with the intent to commit a felony.
Analogously, juridical innocence means being found not to have committed a crime or having been tried and acquitted by the relevant tribunals. In the American context, juridical innocence corresponds to being acquitted by a jury or fact-based dismissals with prejudice by a judge. In contrast, a person is materially innocent if and only if she did not, in fact, commit the specified crime. As such, a person is materially innocent of cocaine possession if, instead of cocaine, the substance the police found on her person was actually baking powder. Notice, however, that material innocence need not be confined to cases where the defendant is manifestly innocent or has a true alibi. On the contrary, material innocence and guilt track the elements of the crime so that a person who breaks into a dwelling intending to cart away a television is nonetheless materially innocent of common law burglary so long as he did so during the daytime.
Defenses can be treated in the same manner. A person is juridically guilty if a tribunal rejects his defense and juridically innocent if the tribunal accepts it. A person is materially innocent if she does in fact satisfy the elements of the defense. She is materially guilty—with respect to a defense—if she fails in actuality to satisfy all the elements of the defense (though she may yet be materially innocent of the underlying crime).
I contend that these categories become confused in the context of criminal self-defense. The source of this confusion is the reasonable person standard specified in the elements of the defense. Invocation of the reasonable person—and references to reasonableness more generally—are ubiquitous in common law systems on both the criminal and civil sides of the docket. Besides the criminal standards for self-defense and provocation, the reasonable person crops up everywhere from civil rights law to contract law. Not to mention that modern courts could hardly try a tort case without it. Yet despite her ubiquity, the reasonable person has been notoriously difficult to define. This element is sometimes the sole issue in a trial, but courts’ explications of “reasonableness,” “ordinary care,” or the “reasonable person” are typically vague or quasi-circular. In the absence of a clear definition, the question of what the reasonable person would or would not have done threatens to collapse into a question of what the judge or jury will say the reasonable person would have done. If that happens in the criminal law context, what then is left of the distinction between material guilt and innocence and juridical guilt and innocence?
Before we consider the complications present in self-defense, we should take at a closer look at how the division between juridical and material guilt ordinarily functions. Consider the elements of murder. In Texas, it is sufficient to show that the defendant (1) intentionally (2) caused the death of an individual. Here, it is easy to distinguish between material guilt and juridical guilt. A person is juridicially guilty of murder if he is convicted by a jury of murder, and someone is materially guilty if she did in fact cause the death of a person and acted with the conscious object to kill a person. There are two important facts here, one physical and the other psychological. Both facts are independent of the court’s decision. Whether or not a court decides that the defendant committed the crime, his material guilt or innocence does not vary.
.Taylor v. United States, 495 U.S. 575, 580 n.3 (1990) (defining common-law burglary as “‘the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.’” (quoting W. LaFave & A. Scott, Substantive Criminal Law § 8.13 (1986))).
.I define juridical innocence disjunctively in order to accommodate the fact that a not-guilty verdict is not equivalent to a finding of innocence. See infra note 3.
.Defining juridical innocence in the American context is complicated by the bivalent character of jury verdicts and the stringent burden of proof required for a guilty verdict. See Larry Laudan, Need Verdicts Come in Pairs?, 14 Int’l J. Evidence & Proof 1, 2–3 (2010) (elucidating the import of a not-guilty verdict under such systems). Given the rigor of the reasonable doubt standard and the fact that jurors must choose between a finding of guilty and one of not-guilty (there is no “innocent” verdict), a not-guilty verdict should not be conflated with a finding of innocence. See id. (emphasizing that an acquittal only signifies that the evidence against the defendant fails to satisfy the standard of proof, not that the defendant is innocent of the crime charged). Nonetheless, to keep the terminology simple, I refer to a jury’s not-guilty verdict as a finding of juridical innocence.
.Thus, however blameworthy the thief’s conduct may have been, he is per the common-law definition of burglary, materially innocent of burglary. Indeed, he may be found guilty by a jury and the verdict sustained at all levels of the legal process, making him juridically guilty, and yet he is, technically speaking, materially innocent.
.Complications arise when a tribunal rejects a claimed defense yet still acquits a defendant on other grounds. What are we to say about such a defendant; is he juridically guilty or juridically innocent? Though it requires an awkward turn of phrase, I think the greatest clarity can be achieved if we say that a person whose defense is rejected is juridically guilty (with respect to the defense) even if she is ultimately acquitted.
.Compare with note 5 supra.
.E.g., State v. Stewart, 763 P.2d 572, 579 (Kan. 1988).
.E.g., Crawford v. State, 704 S.E.2d 772, 776 (Ga. 2011).
.See Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1259–60 (2010) (commenting on the reasonable person in the law of workplace sexual harassment).
.E.g., Akassy v. William Penn Apartments P’ship, 891 A.2d 291, 299 (D.C. 2006).
.See Restatement (Second) of Torts § 283 (1965) (identifying the standard of conduct in negligence cases as the behavior of the reasonable man under like circumstances); Ronald K.L. Collins, Language, History and the Legal Process: A Profile of the “Reasonable Man,” 8 Rutgers-Cam L.J. 311, 313 (1977) (attributing “the lion’s share of the case law” in torts to the reasonable man).
.See infra notes 28–36 and accompanying text.
.See, e.g.,Patrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of Pattern Jury Instructions,77 Chi.-Kent L. Rev. 587, 600 (2002) (“A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances.”) (quoting Wis. Jury Instructions-Civ. 1005 (2002)); cf. Edward C. Lyons, Reason’s Freedom and the Dialectic of Ordered Liberty, 55 Clev. St. L. Rev. 157, 203 (2007) (“[J]ury instructions dealing with a negligence cause of action have generally been articulated in the vaguest manner . . . .”).
.See infra notes 40–49 and accompanying text.
.Tex. Penal Code Ann. § 19.02(b)(2) (West 2011).
.I deliberately use the phrase “independent of the court’s judgment” rather than the phrase “non-legal fact” because I do not think that all of the former facts are embraced by the latter category. There are two types of facts we can think of as being independent of a court’s judgment. The first type is completely independent of any legal standard, for example, the fact that a substance alleged to be bootleg liquor is actually an ethanol solution. The second type implicates what common law lawyers are prone to call “mixed questions of law and fact.” These are not necessarily non-legal facts but are facts independent of the court’s judgment. Whether or not someone has committed larceny is a prime example because it depends on questions of property ownership. See Tex. Penal Code Ann. § 31.03(a) (proscribing appropriating property only if one intends to take it from its owner). Insofar as property is purely a creature of law, deciding whether or not someone owns something requires applying a legal standard. While there are interesting conceptual problems posed by mixed questions, I think the reasonable person question embodies a different problem. Whereas in a theft case, it is possible to use the legal standard to identify facts sufficient to establish property ownership apart from a court’s judgment, my argument is that the same cannot be said of the reasonable person standard. The trouble with the reasonable person standard is not that one must first ascertain the legal standard and then apply it to the facts, but that it is not clear what facts the legal standard demands be satisfied. As such, a court’s decision about the reasonable person becomes the sole criterion. Unless one is a dogged legal realist, the same cannot be said about property and the standard for larceny. For an example of the legal realism I have in mind, seeOliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).