“Objectivity is impossible, and it is also undesirable. That is, if it were possible it would be undesirable.”
Evan Sayet referred to this quote from Howard Zinn as “Weapons grade sophistry.” I think that’s a clever and accurate metaphor, and the weapons reference got me to thinking of the following from the Colorado Revised Statutes Sec. 18-1-704(2), which provides:
(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury;
The words in bold establish two separate and different tests that must be met before anyone may use deadly force against another person. The first, “reasonable grounds to believe” is an objective standard. The second, “and does believe” is the subjective test. The objective test is the easiest to prove or disprove, the subjective one suffers from the fact no one can get inside someone else’s head in order to know definitively what he or she actually believed at any given time. It may be inferred from the surrounding facts and circumstances but can never be determined with certainty.
The objective test, on the other hand, can be established to a degree of certainty that most people will accept as plenty good enough. All that need be done is to ask if, under “the totality of the circumstances” would a reasonable person have believed they were facing an imminent threat of death or serious bodily injury? If the answer is yes (and that is a question for the jury in a trial of the matter), then the objective test is satisfied. There is no need to discover what the actor actually thought at the time.
The subjective test must also be satisfied. How can that be done? Generally, there are only two ways, neither of which reaches the high level of accuracy of the objective test. First, there may be an absence of any evidence tending to show the actor did NOT believe he or she was in danger. One might imagine, for example, that after applying deadly force the actor cried out something like, “I knew he wasn’t going to hurt me but I didn’t want to take any chances, so I shot him.” How likely is that? Pretty close to never, I’d say. But unless there is evidence that the actor told someone what he was thinking and feeling, we are left to little more than assumption that if objectively there was real life threatening danger, the actor subjectively believed it.
The other way is for the actor to take the witness stand and testify under oath as to what he thought and believed at that point in time when he acted. Another possibility might be for a witness at the scene, a responding police officer perhaps, to testify that he observed the actor just before or after the fight started and he appeared to be frightened. Maybe the actor even cried out in a frightened manner “he’s trying to kill me!”, but that would be hearsay needing an exception for it to come in. There is such an exception called “excited utterance.” If it was a statement to a police officer it would come in for other purposes, but once in for one purpose it’s pretty much in. It’s hard to unring a bell.
For the most part, however, the jury may have little more to rely upon than the naked testimony of the actor (who has an obvious incentive to lie) and the absence of any contrary evidence.
It is clear that objectivity in this life or death matter is not only possible, but highly desirable. We don’t want trigger happy people going around shooting every person that frightens them based solely upon their own subjective beliefs, which we can’t determine with any degree of accuracy anyway.
As usual, leftist historian Howard Zinn is dead wrong. Not only is objectivity possible, and desirable as well, it is absolutley required in this and many other instances where the legality of one’s conduct may be questioned. This is just one situation among many where human conduct could never be judged nor could there be any justice in a world in which leftist ideas and philosophy became the common way of thinking.