Epilogue

voluntarily consented to that risk, then the defendant cannot be liable for risking that harm. (An exception to this principle exists when the law specifically denies the capacity of the person to give legally effective consent to the particular risk in question.)

For behavior to be justified, the reasons that the actor has for engaging in his behavior should be weighed against the risk that the actor perceives that his conduct will cause a prohibited result or results.

An actor may never justify “appropriating” or “using” another human being (unless the appropriation is minor and the harm to be averted serious?).

The actor’s reasons for action include not only the reason or reasons that motivate his conduct but also any other reason that might justify his conduct of which he is aware. These reasons should be accorded weight by (1) their positive or negative force and (2) the actor’s perception of the likelihood that the facts underlying the reasons do or will obtain.

When acting to prevent great harm, the actor need not take the action that causes the least evil; she must simply engage in conduct that is a lesser evil than the harm that she believes would have otherwise occurred.

Defense of self and others:

An actor is justified in using the force he believes necessary to stop a culpable attacker. By “culpable” is meant an attacker who is aware that her conduct imposes an unjustifiable risk on another.

If an actor is uncertain whether her attacker is culpable, she is entitled to discount the value of that attacker’s interests in proportion to her belief that the attacker is culpable. So, if an actor believes to a 50 percent certainty that her attacker is culpable, she is entitled to value her attacker’s interests at half of what it would otherwise be worth.

You must also determine whether this defendant’s decision was a gross deviation from that of a reasonable person. In making this evaluation, you should consider, given the gravity of the risk the defendant otherwise faced, discounted by its likelihood, and taking into account the feasibility, costs, and risks of any alternatives, whether defendant had sufficient personal reason so to act.

In making this determination, I advise you that:

A reasonable person may weigh the lives of loved ones more than the lives of strangers. A reasonable person may react to both natural threats (e.g., a boulder) and human threats. A reasonable person may harm or even kill another human being, if faced with a significant threat.

You need not conclude that what defendant did was the “right thing to do,” but rather, that taking into account a realistic sense of faults and failings of the ordinary human being, we could not have expected a reasonable person, one who shows proper regard for the interests of others, to have acted otherwise than defendant acted.

After looking at this choice, you should also evaluate how defendant made this choice. You should find him to be less culpable if his rationality was impaired. You should find him more culpable if he engaged in substantial deliberation and planning – that is, more planning than simply deciding to take the risk.

If, having considered all of these factors, you believe that the risk defendant took was not justified by the reasons of which he was aware, and that given the difference between risks and reasons, he grossly deviated from what an ordinary, reasonable, law-abiding actor would do, you should find defendant guilty.

If you find defendant guilty, you will be asked to calculate the risks and reasons precisely and determine whether and the extent to which defendant was culpable.