Stand Your Ground: New Challenges for Forensic Psychologists, Part Five

Evolving from English Common Law, the Castle Doctrine has expanded to the Stand Your Ground Doctrine, providing immunity from prosecution for Floridians defending themselves, including by the use of deadly force, from presumed criminal attack. The new law places the onus with law enforcers for evaluating the nexus between reasonable fear and deadly force. Forensic scientists are challenged to provide assessment tools proven to be germane, definitive, and quantifiable to assist law enforcers with the accurate determination of authentic and reasonable fear. From the Fall 2006 Forensic Examiner; written by Patricia Wallace, PhD.

The issue of what is reasonable is often difficult even for courts to decide. What is reasonable in one circumstance may be unreasonable in another. Therefore, courts in most states delineate certain circumstances in which deadly force may be reasonable such as when the initial attack is aggravated by the use of a deadly weapon or by multiple assailants. When one is in fear for his or her life or sustaining serious bodily injury, the courts may judge killing the assailant as use of reasonable force. However, in some circumstances in which the attack is considered a misdemeanor attack, the law does not permit a person to use deadly force or seriously injure the assailant.

Typically courts have distinguished between standards of reasonableness by characterizing them as either objective or subjective. An objective standard of reasonableness requires the fact finder to view the circumstances surrounding the accused at the time he or she used force from the standpoint of a hypothetical reasonable and prudent person. Under the subjective standard, the issue is not whether the circumstances surrounding the accused’s use of force would be sufficient to create in the mind of a reasonable and prudent person the belief that the use of force is necessary, but rather whether the circumstances are sufficient to induce in the mind of the accused reasonable belief that he or she must use deadly force to defend himself or herself.

Professor Cynthia Lee (2003) of the George Washington University Law School suggests that “rather than relying on a positivist conception of reasonableness (or one that focuses on what the average or typical person would have believed or done) . . . we ought to also utilize a normative conception of reasonableness (or one that focuses on what actions ought to be considered reasonable)” (p. 226–227).

As difficult as it is for courts to agree on the concept of reasonableness, psychologists have equal difficulty agreeing on a definition and measure of fear. For example, not all psychologists agree on the foundation of human fear. Many will argue that fear is an innate instinct apparent from birth in the form of a “startle response” (Brazelton, 1993). Others contend that fear is more appropriately considered as a human emotion.

Those who contend that fear is an instinct argue that once this fear instinct and its companion self-preservation are aroused, morbid mental life grows like an avalanche in its downward course. In later life these impulses of self-preservation and fear instinct become manifested in various ways, giving rise to the most distressing nervous and mental symptoms.

Proponents of the definition of fear as an instinct are in general agreement with the principle that fear is an inbuilt instinct. It is believed that the instinct acts as an early warning system when humans are faced with potential danger, and it is a part of the individual’s primitive script that continues to protect and guide human behavior. Thus, it is hypothesized that the fear instinct automatically produces the innate flight-or-fight response, as identified in the early 1900s by experimental physiologist Walter B. Cannon, MD, and further described by Dienstbier (1989) in his work “Arousal and Physiological Toughness: Implications for Mental and Physical Health.”

Disagreeing with the notion of fear as an innate instinct are those scientists who believe fear is best described as a human emotional response and, as so, it is likely a learned response. Overall most psychologists agree that there is great variability in human emotional responses. In their 1992 article, Mauro, Sato, and Tucker report “although capable of the same set of emotions, humans are not bound to have the same emotional reactions under the same circumstances” (p. 303). That is to say, for some people riding elevators or looking over the rail of a tall building is extremely frightening, while for others no fear is evoked. Similarly, some people experience a strong emotion of guilt if they, while driving, even accidentally kill an animal. Certainly, some other people might feel sad temporarily over the incident but do not experience the emotion of guilt, while yet another faction might purposefully kill animals and feel proud of it. It all depends on the individual and the unique set of social, cultural, and personal experiences that an individual brings.

Whether fear is viewed as an instinct or an emotion is best left to theoreticians. Such a discussion is aside from our present purpose. Suffice, for our purpose herein, fear is defined as an involuntary passion, which may be partially controlled by an individual’s willpower.

Tags: ACFEI, The Forensic Examiner, reasonable force, fear, deadly force, duty to retreat, forensic psychologsts, Stand Your Ground, Castle Doctrine