What Does the Reasonable Man Believe?

Posted: 5 Aug 2010

Date Written: August 3, 2010

Abstract

The “reasonable man” standard pervades the field of criminal procedure. The centrality of that standard has led many to ask, “Who is the reasonable man?” This Article begins with slightly a different question: What does this man, whom we expect to act reasonably, believe? What are his values and his preconceptions? Whether someone acts reasonably in a given situation, after all, is at least somewhat dependent upon his pre-existing view of the world.

This article suggests that in any case there are at least three possible ways to describe the reasonable man’s values: (1) subjective, based upon what the defendant himself believed; (2) objective and average, based upon what the average person in the community would believe; and (3) objective and aspirational, based not upon what the average person does believe but upon what the court thinks the average person should believe. The Supreme Court’s cases suggest the court believes the right standard is (3), and commentators who have addressed those cases have spilt much ink debating the relative merits of (1) and (3), as well as considering exactly what (3) means. Few have considered the differences between (2) and (3), a difference the growing body of empirical evidence about how the average person thinks highlights.

After elaborating upon these three types, this Article considers the relative merits of a reasonable man who believes (2) and one who believes (3). As it becomes clearer that courts are expecting a level of honor and morality from citizens that few possess or display, having a frank discussion about what the reasonable man believes becomes increasingly necessary in order to maintain a jurisprudence of criminal procedure that is transparent and workable.

Suggested Citation

Kessler, David K., What Does the Reasonable Man Believe? (August 3, 2010). Available at SSRN: https://ssrn.com/abstract=1652984

David K. Kessler (Contact Author)

affiliation not provided to SSRN

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