Expert Testimony and the “Reasonable Person Experiencing Homelessness” Standard

The California Appellate Court recognized the need for expert testimony finding that the experience of a chronically homeless person and their exposure to danger was beyond the ken of jurors. Many persons instinctively turn away from looking at the plight of the poor, blissfully unaware of the struggles the poorest amongst us face every day. Thus, expert testimony is necessary to inform the jurors’ understanding when those jurors must determine the subjective and objective beliefs of a person living in dangerous conditions far beyond the experiences and comprehension of the of the average housed individual.

The court noted that had the expert testified in People v. Sotelo-Urena he would have explained that the chronically homeless are subjected to a high rate of violence and that the experience of living for years on the streets instills a perpetual fear of violence that would have affected the defendant’s belief in the need to defend himself with lethal force. (People v. Sotelo-Urena, supra, 4 Cal.App.5^th at 746.) The court concluded that this testimony would’ve assisted the jury in concluding the “defendant was justified in acting more quickly and taking harsher measures for [his] own protection in event of assault than would a person who was not chronically homeless.” (Id. at 751.) The court found that it was not harmless error to exclude this testimony and reversed the conviction. (Id. at 756-758.) Expert testimony is admissible even if it “invade[s] the province of the jury” or involve[s] ‘an ultimate issue’ to be decided by the jury.” (People v. Reardon, 26 Cal.App.5^th 727, 737 (2018) citing Calif. Evid. Code §§ 801(a), 805.)

Four Fronts of Violence

Based on victimization rates, a homeless person living outside for one year faces the same risk as a “housed” person faces over decades or a lifetime. Cook,M. & Schroeder, L. (2016, July 14). California leads the nation in homeless attacks. San Diego Union-Tribune.

Many violent crimes against homeless people are never reported because homeless people often fear or mistrust authorities. Persons experiencing homelessness must, over an extended and sustained duration, be constantly vigilant to outside threats. This population faces danger on four different fronts and reliable protection from no one other than themselves:

Violence by others Experiencing Homelessness. The court in People v. Sotelo-Urena noted that more than half of homeless persons responding to a survey reported they were the victim of crime, primarily theft but also beatings and sexual assault. (Id., 4 Cal.App.5^th at 748.) Close proximity, limited guardianship, retaliation, preemptive displays of toughness and a low likelihood of consequence are the circumstances that lend themselves to this victimization. “[S]treet and shelter settings give rise to a vicious cycle in which some homeless people alternate between victim and offender roles.” (Id., citing Lee, et. al., the New Homelessness Revisited (2010) 36 Ann. Rev. Sociology pp. 506-507.)

Violence by Housed Persons. The National Coalition for the Homeless in its most recent report entitled 20 Years of Hate documents the violent attacks by housed persons on homeless persons over two decades. Sadly, during the past two decades, people who were not homeless inflicted 1,852 incidents of violence against people who were homeless. At least 515 victims experiencing homelessness violently lost their lives due solely to their lack of housing. Motivated by the offender’s bias and facilitated by the victim’s public accessibility and lack of guardianship, homeless persons have been subjected to being shot, stabbed, set on fire, drowned and beheaded. (National Coalition for the Homeless (December 2020) 20 Years of Hate.

Violence and Dehumanization by Police. Lack of guardianship that contributes to the crimes homeless perpetuate against each other and the crimes perpetuated against the homeless by the unhoused is the fault of police agencies that posture themselves as agitator to this population and not its protector. Because chronically homeless individuals are unsheltered they are visible and accessible to police. Due to their marginalization in society, police bear a low risk of consequence in their dehumanization of this population. According to the California Policy Lab, people experiencing unsheltered homelessness who were surveyed between 2015 and 2017 reported an average of 21 contacts with police in the past six months, 10 times the number reported by people living in shelters.

This familiarity with the police does not usually inure to the benefit of the homeless person. A homeless man who was killed by an Escondido Police Officer for holding a “metal pipe” that may have been a windshield wiper from a vehicle had been arrested 188 times by police which charges included assaults on police and the public, parole violations, drug charges, vandalism and a host of other property crimes. The police knew him and referred to him by his first name and then killed him. (Warth, G. (2021, April 22). Fatal Shooting Raises Questions of Police Response tHomeless. San Diego Union-Tribune.

Structural Violence. Populations historically denied opportunity and oppressed are represented to a far greater degree in the homeless population than in the general population. “Laws that are discriminatory or have discriminatory impact, as well as discrimination in real estate and lending practices, have resulted in neighborhood segregation along racial lines and concentrated poverty. Today, 70% of poor Blacks and 63% of poor Hispanics live in high-poverty communities as compared with only 35% of poor Whites.” (National Law Center on Homelessness & Poverty (2019, Dec.) Housing Not Handcuffs 2019. https://homelesslaw.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf

“Poor families of color, particularly Black women with children, have been the subject of disproportionately high rates of eviction. And once housing is lost, racist practices prevent people from becoming rehoused.”  

This is structural violence. Removing a person from their home or preventing a person from obtaining a home is a violent condition. A housed person can come home, close a fence, lock a door, activate an alarm and rest inside content that their safety and security needs are being met. That feeling of safety and security is not available to those who have no doors that can be locked within to rest.

Due to the living conditions to which they’ve been relegated, homeless persons face increased risk of death due to exposure to COVID-19 and its variants, risk of death from sanitation disease outbreaks and deaths from being run over by an impaired driver of a vehicle while sleeping in a tent on the sidewalk. (Homeless Deaths Count: Documenting Deaths Among People Experiencing Homelessness in the United States (2021) )

Vigilance and Hyper-Vigilance

Vigilance is the action or state of keeping careful watch for possible danger while hypervigilance is a state of increased alertness. The DSM-V defines “hypervigilance” as “an enhanced state of sensory sensitivity accompanied by an exaggerated intensity of behaviors whose purpose is to detect threats. [ ] Other symptoms include abnormally increased arousal, a high responsiveness to stimuli, and a continual scanning of the environment for threats. [ ] The individual is placed on high alert to be certain that danger is not near.”  

When a parent walks into a room with their toddler they have an increased alertness to the knee-level risks that present themselves and to which adults without children pay no heed. Some are risks of attendant property damage should the toddler’s fingers find an expensive knick-knack, while some threats are more deadly: removing potential choking hazards, poisons, or sharp objects. To an outsider without children, the frantic movements of a worried parent can appear frivolous and if the parent is successful in preventing harm from happening to or by their child, none will be the wiser. Headline news is usually reserved for those whose parents were not vigilant enough in avoiding the risks and not for those who were overly protective and perhaps unnecessarily vigilant.

Conversely, the homeless person who is appropriately vigilant and thus effective at saving their own life from violent attack with their timely actions will often face another battle when called upon to convince a jury that the degree of vigilance was appropriate, and the actions taken reasonable under the circumstance. The defendant is entitled to have an expert at this stage as the California Supreme Court noted defendant was entitled to not only have the jury consider his own words

In a matter involving battered women’s syndrome, the expert’s testimony, had it been given, would have included mention that a symptom of intimate partner battering was “a greater sensitivity to danger.” Elaborating, the expert explained “[T]hey don’t misperceive it, they perceive it, very honestly, but it’s [perceived] faster than somebody who [has not been] battered. And we call that a hypervigilance to cues of any kind of impending violence. That makes them … just a little bit more edgy, a little bit more responsive to situations than somebody who has not been bothered might be.” People v. Sotelo-Urena, supra, at p. 746 citing People v. Ares (1989) 215 Cal.App.3d 1178, 1194.)

Conclusion

Most of us will never have to experience life as a homeless individual nor will we need to be hypervigilant to constant danger. We are lucky and privileged. Because of this, however, we lack the experiential learning to appreciate how that increased alertness impacts the behaviors and choices of the chronically homeless. An expert witness can help the jury to put those actions in the proper context to enable a verdict that fairly considers the perspective of a reasonable person experiencing homelessness.

Coleen Cusack is a private criminal defense attorney in San Diego, California, who serves as a consultant and subject matter expert in criminology, civil liberties and criminal justice reform with special emphasis on matters involving racial bias, marginalized populations, and strategic solutions to homelessness.

_{Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}