g. wrote:I am really glad YOU made that post, (and you know I love and respect ya, so please don't take this the wrong way), but it's my experience that other attorneys have that same opinion/definition of subjectivity and EXACTLY why it became such a dirty word.
Attorneys and judges get this from the legal use of the term. "Objectively reasonable" is a term of legal art, meaning what a hypothetical reasonable person, placed in the subject's shoes would perceive. "Subjective" tests have to do with what the subject testifies that he or she actually saw or felt.
I just argued a case dealing with an armed robbery, the gist of which was whether the victim's personal belief that the robbers had a firearm (which was not displayed, nor was there any unambiguous threat or guesture) was sufficient to support a robbery with a firearm charge, vs. some other level of robbery. Under CT law, the statute is objective -- what does the jury think a reasonable person would have concluded from the threats and actions; not subjective -- what did the victim conclude.
Self-defense is another area where we commonly get into objective/subjective tests. The common rule is that the defendant's perception of the need for deadly force must be objectively and subjectively reasonable -- not only must he or she perceive an imminent threat of death or grave bodily harm, but a reasonable person in the same place must be deemed to have the same perception.
So when the attorney is using these words, he or she probably means it in the sense of the difference between the hypothetical reasonable examiner and the specific examiner in the case. The attorney wants to know about the objective facts and the subjective interpretation of the facts. This does not necessarily mean "bais" was involved in a way that connotes an error, although the defense attorney will want to explore the possibliity of error.
To go back above, the victim in the robbery case wasn't biased, per se. But she was in the middle of a street robbery by two guys and may have made an unreasonable assumption about whether the guys had a firearm or were threatening to beat her up. Defendants in self-defense cases, again caught up in very stressful circumstances, often find themselves deemed to have made an objectively unrealistic assessment of the threat posed by the complainant.
Very interesting. Thank-you for raising that point. Personally I go with the former definition and accept that the latter is a potential consequence (one of many potential consequences) of that definition.
This is likely a reason to talk with your local prosecutors so that they can use direct or re-direct to give you a chance to explain what you mean by "subjective" as opposed to the legal term of art. Jurors at trial may have a understandingcloser to the first definition than a judge ruling on a suppressoin motion, who will first think of the legal term.
This thread did indeed evolve into something worth participating in.