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29 J. Legis. 233 (2002-2003)
Reconstructing Reasonableness in Criminal Law: Moderate Jury Instructions Proposal

handle is hein.journals/jleg29 and id is 239 raw text is: ARTICLE RECONSTRUCTING REASONABLENESS IN CRIMINAL LAW: MODERATE JURY INSTRUCTIONS PROPOSAL Hisham M Ramadan* I. INTRODUCTION The concept of reasonableness or reasonable person has become one of the cornerstones in criminal law. It was introduced into the elements of several offenses' and defenses.2 Some jurisdictions define it as an aver- age, ordinary person who is a representative of the general community;3 oth- ers are silent, and leave it to the jury to define as they desire. This article proposes reconstructing the concept of reasonableness as a rule of evidence as opposed to a rule of substance. Considering the rea- sonable person concept as a permissive inference or a mandatory presump- tion seems well-suited to the rules of evidence because its ability to accom- plish the objectives and policies underlie the concept of reasonableness. This article avoids the temptation of discussing the concept of reasonable- ness within a particular offense or defense. Instead, this article isolates the concept from the zone of particular defenses and offenses while discussing the common foundation of the concept shared by every offense and defense. * L.L.B. Ain Shams University (Cairo, Egypt), LL.M. Auckland University (Auckland, New Zealand), LL.M. (Criminal Law) (New York State University at Buffalo), Fellow International Human Rights Law Institute (DePaul University), S.J.D. Candidate and visiting lecturer at the university of Wisconsin school of Law. Professor Walter J. Dickey's inspired me to write this article and offered his invaluable comments on the early drafts. The author thanks professors Michael E. Smith and David Schultz for helpful comments on the early drafts. 1. See Alabama criminal code, ALA. CODE. § 13A-2-2.3 (2001) (introducing the concept of reasonable- ness into negligence); Delaware criminal code, DEL. CODE ANN. § 307 (2001) (introducing the concept of reasonableness into intention, recklessness, knowledge or belief). 2. See Delaware criminal code, 11 DEL. CODE ANN. § 431 (2001) (introducing the concept of reason- ableness into self defense); Arizona criminal code, ARiz. REV. STAT. § 13-404 (2001); Illinois criminal code, § 720 ILL. COMP. STAT. 5/9-2(b) (2001) (introducing the concept of reasonableness into defense of provoca- tion). 3. See Bedder v. DPP, I W.L.R. 1119 (1954). See also People v. Day, 2 Cal. Rptr. 2d 916, 921-22 (Cal. Ct. App. 1992).

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