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14 Lewis & Clark L. Rev. 1401 (2010)
What's Reasonable: Self-Defense and Mistake in Criminal and Tort Law

handle is hein.journals/lewclr14 and id is 1431 raw text is: WHAT'S REASONABLE?: SELF-DEFENSE AND MISTAKE IN CRIMINAL AND TORT LAW by Caroline Forellt In this Article, Professor Forell examines the criminal and tort mistake- as-to-self-defense doctrines. She uses the State v. Peairs criminal and Hattori v. Peairs tort mistaken self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. She also uses these cases to highlight how fundamentally different the perception of what is reasonable can be in different cultures. She then questions whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on the different purposes that tort and criminal law serve, Professor Forell explains why in self-defense cases criminal law should retain the reasonable mistake standard while tort law should move to a strict liability with comparative fault standard. I. INTRODUCTION .................................... 1402 II. THE LAW OF SELF-DEFENSE ............................. 1403 III. THE PEAIRS MISTAKE CASES . .................... ..... 1406 A. The Peairs Facts .......................... ....... 1408 B. The Criminal Case ................................. 1409 1. The Applicable Law ........................... 1409 2. The Criminal Trial ................. ............... 1410 3. The Aftermath .................................. 1413 C. The Hattoris' Wrongful Death Trial and Appeal....... ..... 1415 1. The Civil Trial................................. 1415 2. The Civil Appeal: Hattori v. Peairs.... ............. 1415 D. Comparing the Outcomes in the Criminal and Civil Cases......... 1417 E. The Influence of Different Purposes for Tort Law and Criminal Law ..................................... 1418 Clayton R. Hess Professor of Law, University of Oregon School of Law. This Article is part of the Lewis & Clark Law Review's Spring 2010 Symposium, Who Is The Reasonable Person? I benefited from my colleagues' comments when I presented a version of this Article at a session of the University of Oregon School of Law's Academic Flash Mob, June 10, 2010. Thanks to Dorothy Kim and Jen Costa for their excellent research assistance. 1401

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