The All-or-Nothing Baseline

The All-or-Nothing Baseline

Imperfect self-defense only makes sense against the complete defense it falls short of, so the first task is to see exactly what a successful claim demands. Perfect self-defense is a justification. The defendant admits an intentional killing and argues that, all things considered, it was the right thing to do.¹ When the argument succeeds, the law treats the act as rightful and the verdict is acquittal, which means the defendant is guilty of no crime at all, neither murder nor manslaughter.² That payoff explains why the elements are demanding. A justification licenses a killing, and a license that depended only on the defender's private perceptions would put the victim's life in the hands of whatever the defender sincerely, and perhaps carelessly, feared. The law therefore ties the license to what a reasonable person in the defendant's position would have perceived.

Steps two and three attach reasonableness to the defendant's beliefs, and they do not demand that the beliefs be correct. A defender who reasonably misreads an unarmed adversary as armed still satisfies the defense.⁴ The label "perfect" can suggest someone who appraises both the necessity and the amount of force accurately⁵, but the legal test forgives mistakes so long as they are reasonable.⁶ Fuller statements of the defense add that escape must not have been reasonably available and that the force used must have been proportionate.⁷ Statutes passed or proposed in many states since 2005 also presume reasonable fear when a home resident faces an intruder and relax the duty to retreat.⁸ Those refinements reshape the complete defense, but the diagnostic above is the part this chapter needs. An imperfect claim is one in which step one fails because the defendant was at fault, or step two or three fails because an honestly held belief was unreasonable.⁹

The reasonableness requirement was not always part of the doctrine. The early common law appeared to give the defense to anyone who honestly believed he was under deadly attack, even if the belief was unreasonable, and in the mid-nineteenth century many American courts changed course and required that the belief be reasonable.¹⁰ The traditional classroom hypothetical shows what turned on the change. B and C are arguing heatedly over the lifetime batting averages of Ty Cobb and Pete Rose. B shouts that he has had enough of C's lying and will make sure C does not make that mistake again, and reaches into his coat pocket. C, fearing a gun, kills B instantly, and the pocket holds only an encyclopedia of baseball.¹¹ Under the early rule C is excused because his fear was sincere. Under the later rule the outcome depends on whether a reasonable person in C's position would have feared a gun. If the jury finds that he would, C has perfect self-defense and is acquitted even though B was unarmed, because the element is reasonable belief and a reasonable belief can be mistaken.

An examinee who notices that C was truly frightened and stops there has confused two questions. Honesty asks what C actually believed, while reasonableness asks whether a person in C's position would have shared that belief, and the complete defense requires both. Sincere fear matters for the mitigating doctrine taken up in the next section, but it cannot by itself produce an acquittal.

The rule that emerged from the nineteenth-century shift is called the "all or nothing" approach: an unreasonable mistake costs the defendant the defense entirely, and this appears to be the current rule in the majority of jurisdictions.¹² Its supporters give two reasons. Defendants who act unreasonably should not be excused, and the prospect of a murder conviction should make people who are, or think they are, under threat more careful before they resort to deadly force.¹³ The consequence for the defendant is stark. Because an intentional killing is presumptively murder, a defendant who falls short of the complete defense has nothing in between to offer the jury, whose only choices are acquittal and a murder verdict.¹⁴

The cost of that rule appears when the defendant's fear was real. A defender who honestly believes she faces death right now is unlikely to be deterred by the possibility of punishment later, since a prospective trial does not enter the calculation of someone who thinks she must act at once.¹⁵ The deterrence argument therefore does the least work in exactly the cases where the rule bites hardest. Even if the defender was careless in not taking more time to assess the situation, punishing her as a murderer puts her on the same footing as a killer who offers no justification at all.¹⁶ Many courts found that result too harsh and created an intermediate position, imperfect self-defense, under which an unreasonable but honestly held belief reduces the killing to manslaughter.¹⁷ Where the complete defense fails, the jury can then grant a partial defense in place of the all-or-nothing choice.¹⁸ The next section defines that middle category and the belief it requires.