In criminal trials, juries are often asked to figure out what kind of thought process was going on in the mind of the accused. It can make all the difference. In a murder trial, the defendant can try to show that though he killed the guy, he feared for his own life, and that therefore he acted in self-defense. Despite how imaginative understanding forms the basis of how we get inside the defendant’s head, some idea of repeatable circumstances and some generalizations must come into play in a murder trial. Imaginative understanding of the defendant is a good way of describing what juries are asked to do. They must evaluate the circumstances from the defendant’s subjective point of view—the danger he felt need not have really existed. Nevertheless, generalizations and repeatable circumstances are involved in various ways.
In Causation in the Law, H. L. A. Hart and A.M. Honoré claim:
It is often said that if the first actor’s words or deeds are to be accepted as the second actor’s reasons… it must be true that he would not have acted in the way he did, had the first actor not said or done what he did. Even if this is true… it is wrong to conclude that, if this relationship between the two actions is to subsist, the first person’s words or deeds must have the general connexion with the act of the second which is characteristic of causal relationships between physical events. The statement that one person did something because, for example, another threatened him, carries no implication or covert assertion that if the circumstances were repeated the same action would follow; nor does such a statement require for its defense, as ordinary singular causal statements do, a generalization… This is most obvious if we consider not a third person’s statements about the case where someone has done something because of another’s threats, but the threatened person’s own statement that he acted because of those threats. It would be absurd to call upon him to show that there really was a connexion between the threats and the action by showing that generally he and other persons complied when threats were made. This general statement might be quite untrue and yet his statement of his reasons might be true: the assertion that he acted because of the threats carries no implication that, given similar circumstances, he would act again in this way or that, in similar circumstances, he or other persons had always acted in this way.
For example, suppose Bert shot Tony. It was no accident; Bert did it intentionally. The issue at trial is what was going on inside Bert’s mind when he did it. Scientific laws are not likely to be much help. Since Bert acted intentionally, some mental state caused Bert’s action—firing the shot killing Tony. The question is which mental state. Bert claims he acted in self-defense. The prosecution argues Tony was messing around with Bert’s wife and that Bert was motivated by vengeance. To prevail, the defense must show that despite the evidence of revenge as a motive (the prosecution would not be allowed to argue vengeance with no evidence at all), the only cause of Bert’s action was his belief that he was in danger: “The defendant must have believed there was imminent danger of death or great bodily injury to himself… and he must have acted only because of that belief.”
Donald Davidson in “Actions, Reasons and Causes”: “a person can have a reason for an action, and perform the action, yet this reason not be the reason he did it.” (p. 9 Essays on Actions and Events OUP 2001). Suppose Tony was so threatening that anyone in Bert’s position would have been justified in using deadly force to defend himself. However, Bert wasn’t worried about any possible danger to himself. His thought was only: that SOB deserves to die. And that thought caused his action. Then self-defense would not be available to Bert.
The jury must use imaginative understanding to determine which psychological state to ascribe to Bert. The jury can’t do it as accurately as, for example, Sherlock Holmes tracks Watson’s thinking in Conan Doyle’s stories, but it’s the same idea. Even in this kind of intuitive process, aren’t some general notions of human nature necessary? Some folk psychology?
If the jury feels that Bert’s action was caused by his belief that he was in danger, the question becomes whether Bert’s belief and use of deadly force were “reasonable”. The jury is asked to use this general principal, a kind of verbal formula:
1) reasonably believed that he was in imminent danger,
2) reasonably believed that the immediate use of deadly force was necessary,
3) used no more force than was reasonably necessary.
The jury must put themselves in Bert’s place and use their imaginative understanding to judge him. The defense may appeal to a concept of repeatable circumstances. Bert may testify that if he had to do it over again, he would do exactly what he did when he shot Tony.
Contra Hart and Honore, he will claim that “if the circumstances were repeated, the same action would follow.” The point is not to introduce evidence of a reliable character trait of Bert’s. The defense will want the jury to feel that shooting Tony was not based on a mere whim of Bert’s. However, if Bert’s fixed nature is simply being a violent and vicious SOB, that will not help. Indeed, it is a rare defendant who wishes to make his own character an issue at his trial. Rather, the point is that Bert wants to show that he acted “reasonably”, and that the reasonable response will be the same when the circumstances are the same. To invoke self-defense, Bert must claim, honestly or not, that his actions conformed to the general standards embodied in the California Jury Instruction 505.
Bert’s lawyer will call upon the jurors to imagine themselves in Bert’s situation. He will look the jurors (especially the male ones) in the eye and say, “If you were in that dire situation Bert was in, you would do exactly what Bert did.” The goal for the defense is to show that Bert’s mental state and his action caused by that state were “reasonable”, and so meets the general moral and legal standard for justifiable homicide. That standard is objective, applying to all persons who find themselves in a situation where deadly force is warranted. For the defense, “the correct procedure here is… some attempt to apply generalizations to the case.” Anybody who wants to shoot somebody, and then claim the shooting was justified, had better be prepared to apply the objective legal standard.
It remains quite true that “It’s your imaginative reconstruction of the the state of mind, the deliberative situation, of the accused that governs” the fate of the defendant.
The defense has a fallback position in California Jury Instruction 571: imperfect self-defense. If the jury decides that Bert honestly believed in the danger and that his actions were caused by that belief, but that he misjudged the circumstances or used excessive force, they can reduce the murder charge to manslaughter. (Bert would still go to prison, but he would get out eventually. Those convicted of murder get a life sentence, and though they become eligible for parole, they never get it. The threat of the death penalty rarely comes into a case with so much as a hint of self-defense.)
Criminal law is a normative generalization: you must do this in that situation or suffer the consequences. The saying goes: Don’t do the crime if you can’t do the time.
These ruminations inspired by John Campbell’s seminars at UC Berkeley on mental causation in psychiatry and psychology, and imaginative understanding of the minds of others.
Addendum, California Jury Instructions, Calcrim 505 and 571.
505. Justifiable Homicide: Self-Defense or Defense of Another
The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if:
1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury;
2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant’s belief must have been reasonable and he must have acted only because of that belief.
The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.
If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.
571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another—Lesser Included Offense (Pen. Code, § 192)
A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant’s belief in the need to use deadly force was reasonable.
The defendant acted in imperfect self-defense if:
1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; AND
2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; BUT
3. At least one of those beliefs was unreasonable.
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future. Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary’s use of force. If you find that_[the dead guy]____ threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant’s beliefs.