RACE AND SELF-DEFENSE - TOWARD A NORMATIVE CONCEPTION OF REASONABLENESS

Cases involving claims of self-defense strike at the heart of the crim inal justice system, invoking questions of culpability, justification, and excuse. When race is an issue, disagreement may arise over whethe r or not the use of defensive force was reasonable, The legal decision makers charged with deciding this question are the jurors who exercise verdict-rendering discretion. In this article, Professor Lee focuses on the exercise of jury discretion in self-defense cases involving vic tims of color. She examines ways in which stereotypes about Blacks, As ian Americans, and Latinos may influence the reasonableness determinat ion in such cases. She then makes specific recommendations regarding h ow the law of self-defense might be reformed to better guide the exerc ise of jury discretion in all self-defense cases. Professor Lee's firs t proposal suggests that model jury instructions which focus solely on the honesty and reasonableness of the defendant's beliefs should be r evised to reflect that both the defendant's beliefs and actions must b e reasonable for an acquittal under self-defense doctrine. Requiring j urors to consider separately whether the defendant's beliefs and actio ns are reasonable provides an additional check on juror discretion, re ducing the risk that jurors who are inclined to believe the defendant' s beliefs are reasonable will assume that his actions are also reasona ble. Professor Lee's second proposal is a supplemental limiting jury i nstruction reminding jurors that it is inappropriate to rely on-racial stereotypes in deciding whether the defendant acted reasonably in sel f-defense. If jurors are uncertain about whether they have relied upon stereotypes, they may engage in a race-switching exercise by imaginin g that the defendant and the victim are of different races than their actual races. This race-switching proposal does not ask jurors to igno re race, nor does it change the standard required for an acquittal und er self-defense doctrine. The proposal merely seeks to ensure that jur ors deciding self-defense cases do so in as fair a manner as possible, treating defendants who kill or injure victims of color the same as d efendants who kill or injure White victims. Finally, borrowing from Fo urth Amendment search jurisprudence, which contains its own reasonable ness requirement, Professor Lee notes that different conceptions of re asonableness might operate in self-defense cases. ''Reasonableness'' m ight be understood in either ''positivist'' or ''normative'' terms. A positivist conception of reasonableness examines what the ordinary or average person would have believed. Professor Lee points out that a ty pical or common belief is not necessarily a reasonable belief. In cont rast, a normative conception of reasonableness attempts to reach the m eaning of reasonableness by asking whether the defendant's beliefs and actions should be viewed as legitimate or justifiable. Professor Lee suggests that further attention should be paid to which conception of reasonableness (positivist, normative, or both) should be utilized by jurors in self-defense cases.