The Actor's Viewpoint

The Actor's Viewpoint

The last sentence of § 210.3(1)(b) tells the factfinder where to stand when it asks whether a defendant's disturbance has a reasonable explanation or excuse: the reasonableness "shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."¹ The discussion above established that the second component of the defense has an objective core, since the explanation must be one that counts as reasonable. A bare demand for reasonableness leaves open whose yardstick applies, and this clause answers by placing the factfinder in the position of a person who is where the actor was and who sees what the actor saw. The clause has two halves, one about the actor's own situation and one about the circumstances as he believes them to be, and the next two subsections take each half in turn. This section fixes the structure that joins them, which is a blend of subjective and objective elements.

The reason for the clause becomes clear from the rule it relaxes. Under the traditional reasonable-man test, courts quite uniformly refused to consider a defendant's special mental qualities, such as unusual excitability from a sunstroke or head injury, and a man who lost control easily because of intoxication was judged as a reasonable sober man would be.² In Bedder v. D.P.P., an impotent man killed a prostitute who had jeered at him and kicked him when he failed to perform, and the House of Lords held that the test was the effect of the provocation on a reasonable man, not on a reasonable impotent man.³ The mechanism is easy to trace. A purely objective measure treats words and blows as carrying the same force for every listener, so it cannot register that a jeer about a genuine affliction lands differently on the man who has that affliction. Whatever makes the actor's position distinctive drops out of the analysis before the factfinder begins, and the viewpoint clause is the Code's way of putting it back.

The opposite extreme would be just as unworkable. If reasonableness were measured only from the defendant's own viewpoint, the second component would add nothing to the first, because a defendant who was sincerely overcome would always find the reaction understandable, and the more idiosyncratic the reaction, the stronger the claim to mitigation. In People v. Casassa the defendant argued exactly that, and the New York Court of Appeals called the argument misplaced.⁴ The court directed the factfinder to view "the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been," and to assess from that standpoint whether the explanation for his disturbance was reasonable.⁵ The court described the result as a standard containing both subjective and objective elements, which let the drafters broaden the heat-of-passion doctrine to a wider range of circumstances while retaining some element of objectivity.⁶

Other courts describe the hybrid standard in the same terms. A dissenting opinion in the Connecticut case State v. Raguseo summarized the test as subjective, in that it lets the jury consider the defendant's particular eccentricities, and objective, in that the jury must decide whether the explanation for the disturbance was reasonable in light of his situation and his perception of the circumstances.⁷ In State v. Dumlao, the Hawaii court called the reasonable-person test an anomaly that the Code's drafters corrected with an objective and subjective test, one that makes the inquiry more subjective, though not entirely so, and that abandons the common-law rule against considering the defendant's personal characteristics.⁸ The Code thus takes a middle ground between a standard that ignores all individual peculiarities and one that makes emotional distress decisive whatever its cause, and the ultimate question is "whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen."⁹

Extreme grief is among the conditions that the Code's commentary treats as easily read into the word "situation," which is why both parents begin from the same place.¹⁰ What separates them is the explanation, and that is where the objective half of the standard does its sorting. Treating the clause as a license to credit any sincerely felt reaction erases the objective half, while ignoring the grief erases the subjective half and returns the analysis to the common-law reasonable man. Students go wrong most often on the first error, by asking whether the defendant himself found the reaction reasonable, when the clause asks about a person in the actor's situation.

Because the hybrid is a drafting choice, its exact balance varies by jurisdiction. Some states that adopted the extreme-disturbance formulation either left out the language about the actor's situation or used wording that reads as less subjective, and a few also require that the defendant not have been at fault in bringing about the provoking events.¹¹ New York's statute, which Casassa construed, asks for reasonableness from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, a close variant of the Code's own wording.¹² The Oregon Supreme Court, applying its own version in State v. Ott, acknowledged that the legislature chose a hybrid approach to subjective and objective factors and that no court can state a jury instruction on it that is completely free of criticism.¹³ A fact pattern that names the Model Penal Code calls for the Code's text as the baseline, and a stem that names another statute calls for that statute's wording.

The Actor's Situation

The first half of the viewpoint clause directs the factfinder to ask whether the explanation for the disturbance was reasonable from the viewpoint of a person in the actor's situation.¹⁵ The actor's situation is therefore the set of facts about the defendant that the factfinder carries into the second component, and the Code's commentary, as a dissent in State v. Raguseo quoted it, calls the word “situation” designedly ambiguous.¹⁶ The ambiguity is confined to the middle of a spectrum whose ends are clear. At one end, personal handicaps and some external circumstances must be taken into account, so blindness, shock from traumatic injury, and extreme grief are all easily read into the term.¹⁷ At the other end, the actor's idiosyncratic moral values are excluded.¹⁸ Each end has its own reason, and the next paragraphs take them in turn before turning to the middle.

The reason for the first end appears in the drafters' own explanation, which the Hawaii Intermediate Court of Appeals reproduced in a footnote in State v. Dumlao. According to the drafters, an actor who had just suffered a traumatic injury, who was blind or distraught with grief, or who was experiencing an unanticipated reaction to a therapeutic drug could not fairly have his crime appraised without reference to those matters, because they bear on the inference about his character that it is fair to draw from his act.¹⁹ The mechanism runs through the second component, which asks whether the actor's loss of self-control can be understood in terms that arouse sympathy in an ordinary citizen.²⁰ A citizen cannot answer that question about a grieving or injured person while picturing someone untouched by the grief or injury, since the condition changes how the same events are perceived and felt. Screening such conditions out would measure a different person's reaction and would treat the defendant as average when he was not. That is the result the older reasonable-man test produced when it set aside a defendant's special mental qualities, such as unusual excitability from a head injury.²¹

The category reaches past handicap and injury. Dumlao accepted the reading that the actor's sex, sexual preference, pregnancy, physical deformities, and similar characteristics are apt to be taken into consideration, and it described the phrase “actor's situation” as flexible enough to let the law grow toward mental abnormalities recognized in diminished-responsibility doctrine.²² The Oregon Supreme Court in State v. Ott agreed that a Code-derived provision reaches the actor's personal characteristics, yet it rejected the defendant's objection to an instruction that confined the jury to the personality characteristics an ordinary person would have.²³ The court's reason was that counting a bad temper would let a bad-tempered defendant escape a murder conviction while an even-tempered defendant in precisely the same situation and circumstances was convicted of murder.²⁴ Temperament measures how readily a person reacts, so a rule that credited it would give the strongest claim for mitigation to the people most disposed to violence, and the objective component would lose its purpose.

The other end of the spectrum rests on a different reason. The commentary states that idiosyncratic moral values are not part of the actor's situation, and it illustrates the point with an assassin who kills a political leader because he believes it is right to do so: such an assassin cannot ask to be judged by the standard of a reasonable extremist, because any other result would undermine the normative message of the criminal law.²⁵ That illustration is the commentary's own teaching example. Grief and injury are conditions that happen to a person and change how events are experienced, so counting them helps the factfinder test whether the reaction can be understood. A scheme of values is the very standard by which the actor decided that a killing was warranted, so counting it would let the defendant's personal code define his own excuse, and the objective component would have nothing left to measure. A New York trial court construing the state statute derived from the Code recorded the same boundary in People v. Shelton, reading the commentary to add a larger element of subjectivity while confining it to the actor's situation and the circumstances as he believes them to be, and keeping out his scheme of moral values.²⁶ The second piece of that formula, the circumstances as the actor believes them, is the subject of the next section.

Between the two ends lies territory the commentary leaves open. It identifies matters that are neither as plainly separate from individual blameworthiness as blindness nor as integral to moral depravity as a belief in the rightness of killing, and its classic illustration is the unusual sensitivity to the epithet “bastard” of a person born illegitimate.²⁷ The commentary leaves the sorting of such matters to the courts, so a claim in the middle zone calls for argument in both directions.²⁸ Whichever way a characteristic is sorted, its inclusion changes only the viewpoint from which the explanation is judged. The explanation must still be reasonable, and the factfinder keeps its discretion to find that it is not, so an answer that stops once the characteristic is admitted has skipped the objective half. Students most often lose this issue by treating a general temperament as if it were a handicap, which reintroduces the asymmetry between hot-tempered and even-tempered defendants that the Oregon court refused to accept.

Circumstances as He Believes Them

The viewpoint clause has a second half, and it governs the external facts rather than the actor's own makeup. Having directed the factfinder to the viewpoint of a person in the actor's situation, § 210.3(1)(b) adds that the reasonableness of the explanation or excuse is judged “under the circumstances as he believes them to be.”³⁰ In People v. Casassa the New York Court of Appeals turned that wording into a formulation for jurors: the factfinder views the defendant's subjective, internal situation together with the external circumstances as he perceived them at the time, “however inaccurate that perception may have been,” and asks from that standpoint whether the explanation for his disturbance was reasonable.³¹ The two halves of the clause therefore divide the work. The actor's situation, covered just above, supplies the internal conditions such as grief or injury, and the circumstances as he believes them to be supply the external scene those conditions were reacting to.

The reason the Code measures the scene as the actor perceived it comes from what a disturbance is. Extreme disturbance is a state of mind produced by what a person takes to be happening, so a defendant who misreads events is overcome by the events as he read them, in just the way an accurate observer would be overcome by the real ones. A factfinder who tested the explanation against the true facts would be asking how someone would react to a scene the defendant never experienced, and the answer would reveal nothing about whether his loss of self-control can be understood. The Code's commentary accordingly treats the last clause as the one that clarifies the role of mistake, and it directs the trier of fact to evaluate the actor's conduct under the circumstances the actor believed to exist.³²

The commentary's own illustration shows how far the clause reaches. A man who reasonably but mistakenly identifies his wife's rapist and kills the wrong person may be eligible for mitigation, if his extreme emotional disturbance would otherwise be subject to reasonable explanation or excuse.³³ The key word is eligible, because the illustration offers the killer a chance at mitigation and does not promise a reduction. Older discussions of heat-of-passion manslaughter that address a mistaken belief at all speak of a belief that was itself reasonable, as with a husband who reasonably but wrongly concludes that his wife is committing adultery, and they acknowledge that modern statutes rarely address the point.³⁴ The Code's wording attaches no separate reasonableness requirement to the belief. It takes the circumstances as the actor believes them, and the phrase “however inaccurate” in Casassa confirms that the perception is accepted as the starting point.³⁵

None of this makes the test fully subjective. Casassa relied on the Code's comments for the point that the ultimate test is objective, so there must be a reasonable explanation or excuse for the actor's disturbance, and the commentary adds that the reasonableness language preserves the essentially objective character of the inquiry and guards against debilitating individualization of the legal standard.³⁶ The reason is structural. If the actor's belief also settled reasonableness, the only live question after the disturbance was shown to be genuine would be sincerity, which the first component already tests, and every sincerely disturbed killer would qualify for a reduction of a purposeful killing. The objective half keeps the second component independent by asking whether the explanation for the disturbance, given the believed scene, is one an ordinary citizen could understand.

Casassa itself shows the objective half doing that work. The trial court there apparently accepted that the defendant acted under extreme emotional disturbance, considered the mitigating factors he offered, and made a sincere effort to understand his situation and the circumstances as he believed them to be, yet it found the excuse so peculiar to him that it was unworthy of mitigation, and the Court of Appeals could not say as a matter of law that this was error.³⁷ A dissent in State v. Raguseo, quoting a New York appellate decision, locates the question precisely: the issue is the reasonableness of the explanation offered for the defendant's extreme emotional reaction, and the killing itself need not have been a reasonable response.³⁸ Students err in both directions here. Some test the explanation against what really happened, which discards the believed circumstances the statute tells the factfinder to use, while others fall into treating the defendant's belief as the end of the inquiry, when a sincere and even inaccurate belief only fixes the scene to be evaluated. The explanation must still be reasonable on that scene, and the factfinder keeps its evaluative role, a point developed again in the discussion of the factfinder's discretion below.