Michigan Law Review
In her recently published book, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Cynthia Lee weaves together an array of case narratives to argue that the concept of reasonableness in self-defense and provocation cases allows majority culture defendants to benefit from jurors' deeply ingrained biases. She makes her case by drawing from three categories of cases: men who claim they were provoked to kill by female infidelity; gay panic cases, in which heterosexual defendants claim self-defense or provocation from unwanted homosexual advances; and racialized fear cases, in which white defendants claim self-defense to justify the killing of victims of color. Lee argues that the role of reasonableness in the law of criminal defenses permits the majority culture defendants in these cases to benefit from unspoken juror biases that render male jealousy, heterosexual protectiveness, and white fears of people of color understandable.
Lee's reassessment of the reasonableness requirement launches primarily from her concern about this inequity. Having identified her primary concern, Lee devotes the bulk of her book to the development of three reforms. First, she argues that jurors should be required to apply a normative concept of reasonableness in addition to an empirical one, focusing not only on what most individuals might have believed or done in the defendant's situation, but also on what an individual ought to have believed or done. Second, she maintains that jurors should evaluate the reasonableness of not only the defendant's beliefs, but also his actions. 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.
In this review, I attempt to situate Lee's recommendations within the broader debates in current criminal law scholarship between rule-based and standard-based defenses and between objective and subjective standards for judging claims of reasonableness. Situating her analysis within the broader literature on criminal defenses, I recharacterize her recommendation that jurors evaluate the reasonableness of both the defendant's beliefs and his conduct as a call for criminal defenses defined by flexible standards, rather than by imperfect rules intended to reflect those standards. Only when defenses have resorted to imperfect rules has it created the potential for defendants who believed reasonably, but behaved unreasonably, to avoid criminal liability.
I then turn to Lee's suggestion of using switching and attempt to discern its implications for the broader dichotomy between subjective and objective standards of reasonableness. The standard story here juxtaposes an objective standard of reasonableness with a so-called subjective one in which jurors evaluate the defendant's reasonableness by comparing him to a hypothetical reasonable person sharing all of the individual defendant's relevant character traits. Although the battered woman has been depicted as the poster child of subjectivity, Lee adds a new dimension to this traditional dichotomy by suggesting that it is not battered women but, rather, white, heterosexual men who are most able to manipulate the concept of reasonableness by invoking dominant cultural norms. Although Lee sees switching as a way to neutralize stereotypes in the cases that concern her, I see it more broadly as a method of implementing an objective, contextualized standard of reasonableness in which jurors would compare the defendant to a hypothetical neutral reasonable person - without gender, race, or sexual orientation - in the defendant's situation. By tackling their intuitive responses to switching exercises, jurors conjuring a neutral reasonable person in the defendant's shoes might best be able to isolate the relevant, objective circumstances that should properly contextualize the defendant's situation, a task that has troubled courts and scholars since the emergence of the battered woman self-defense cases.
Alafair S. Burke,
Equality, Objectivity, and Neutrality, 103 Mich. L. Rev. 1043
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1187