please the court after months of all school leading and increasingly violent and you know heating abuse airing stand we took it up a notch on top of the strangulation and the vicious beatings he got himself a gun and i like the is your question for for the purposes of answering all my questions i want you to assume that i accept every fact in your plaintiff's statement the government makes of seems to me to make a big deal about the fact that it's on sworn i i don't accept that accept the facts as stated in the statement but and page forty five in your brief you write majority knew or majority knew that it would follow that meaning a severe beating would follow as soon as she returned to stanley without the money hundred percent of defense defense so someone held a gun to his head and said i'm going to shoot you if you do not get the documents from the building you got to get those documents from the building or i'm going to shoot you so there's imminent harm if he doesn't get the documents from the building and he burns it all in the ground he commits arson and then he says well i was under direct us i had to burn the building to the ground you know order to obtain the documents from the building he wouldn't be able to submit a diff arrest offense under those circumstances would you agree with that i have to say i'm a little uncertain well listen let me tell you exactly where i'm going i don't i'd like you to point to me the facts in the statement with particular with your specs to robberies two and three it seems to me that this was about getting the money not about committing armed robbery i'm not sure that where your client marjorie says she would be subject to a severe beating unless she committed armed robbery it seems to me that your argument is she would be she would be subject to a severe beating unless and and and judge and i think i think we cannot look at any of these robberies in isolation without looking at the history of abuse and what's happened before and so she knows from robbery number one and he's put the gun in her hand he's told it to do the robbery and she greatly fear is what would happen if she didn't follow his very command right then and there to do that and can act as we did with that because i think a lot of what we're trying to sort out here goes the difference between subjective factors and object factors that pertain to a certain population of people so in a sense i want to draw an analogy to what i understand your argument to be that she isn't just on the spot market transaction deciding whether to do this robbery not she's been grooved as we see and some of the pornography cases we see in other cases too to a certain point and i gather that you're saying this evidence comes in to figure out what a reasonable person with the same if there were no history right i mean if it were just the guy standing in front of the building saying i have a gun to your head go in and get the papers and they they don't have a history you wouldn't be arguing  o dress if the guy burns a building down or breaks into an apartment and grabs papers or does some other crime and is as you said he she's been she's been groomed for months on this and one of the presumably one of the purposes of aaron stanley's abuse is so that yes this kind of control so that she doesn't but we know she has options and so it is an entirely different situation than it might have been on day one or two of the relationship after going through this for months actions were assessing in the way you want to hear i think as a general matter and applies in self defense in self defense cases i mean we look at we put ourselves in the defendant's shoes and what they what they what they believe and what they've been exposed to and ask what's what's the reasonable response given what they're saying what their situation is and i think it's i think it's the same i think it's the same here her situation is one who she's been groomed for so long and she doesn't feel like she has other avenues and that she knows that the dangers immediate because when he comes home and she doesn't have the money and hasn't committed that robbery she's going to get a beating and these are the escalated so much and he now has a gun and she has every bit fears for her life and reasonably so what we know from long experience and battering units of facts is that these aren't empty threats these are these are real threats you know we have some about woman's been strangled before whether an extra risks are for leaving the relationship what the  police when there are threats to not call the police we know that that all escalates that danger to her life and puts your life in severe jeopardy and his recent conduct is escalated to such a point that she has the fear the end the end is  certainly forcing her to do something he is he's made up this idea that she owes him money so she knows she's got to get money and she's telling him around the time of the nd robbery i mean there  just maybe your mother will give her the money what reason is there to think this is the nd robbery that he cares whether she gets it through robbing the orange whatever it was you know store or  she gets it from her mother or she sits out there with a ten coup care well i i don't you know i can't see into his mind as to what he what he cares about but she i think i think she's aware and if that money doesn't show up she's she's in grave danger he says unless you're lying you think he knows that he's being you know i think you know is that he's being put off with a lie about getting money from the mother and that he is he is in still in the recent weeks th robbery is what you're going to have to do to get the money because i'm not putting up with not getting the money and so she said he's a ticking time bomb she says that time are going down as the day goes on and the threats the attacks conversations get worse and worse  to abuse by an intimate partner what i have in mind is let's say somebody who's in debt to a loan shark flowchart doesn't care where the money comes from  testimony about not having other reasonable options in those kind in those kind of cases what about what the prison cases are in your brief in your reply brief and page twenty two you say drug and present cases are different from domestic violence situations in the drug cases the person is usually put their selves in the scenario or quickly dropped into it the law demands it they can they must extricate themselves there's nothing about prison cases how do we distinguish between prison cases well the t is that the she was before doesn't your client doesn't alleges specific threat she says it's there an expert witness testimony would explain why i was there surely in a prison context a prisoner could call an expert and say it wasn't an explicit threat but there's a lot of beatings that go on in prisons and other very bad things they could put on i think the same testimony that your client could with respect to battering it's facts well there is a there there not an articulated threat here but there's a very specific threat she has been beaten virtually every day for months and it's any time she does not comply with his demands and so she knows when he gets home and she hasn't met the demand for money to commit  is robbery then there is going to be a beating i think it's a very specific threat in the in the present case as it was just there was just racial tension in the prison that made people want to use it but there was no in one case there was no  exception but they said we retreat prison to secure for what do we do about the imminency requirement here do we determine and it look i take it your argument is that there was there was there was a particular fear of imminent violence every minute or for life if she if she if she was to unload the dishwasher and she did it in a manner in which he did agree with she could be subject to severe abuse at least that's the way i read the statement again i'm not disputing the facts yeah i mean i think most of these robberies we are alleging something much more specific when he gets home if she doesn't have it she doesn't have the money and he has already communicated then you rob if you don't otherwise have the money and she doesn't have it she's taken him to her life is in jeopardy at that moment i think it's a very specific specific threat under these circumstances in the way she's been groomed in condition about the thing that concerns me here is the prong about having no reasonable opportunity to refuse to commit the offense and i think i understand your arguments here but i'm trying to see how that plays out for example in i guess my question is whether proportionality comes into play here hypothetical suppose the instruction from stanley before the  st robbery is take the money and then shoot the clerk the defense still work yes i i would agree there is  goes into the reasonable no reasonable notice of the and i also you know i would just say that i'm a little that's that's the prospect that troubles me about the reliance on the strict on just saying the same rules that apply to self defense who you want to see introduced to inform the jury's determination about whether there's enough coercion or the instruction that would go to the jury saying under these circumstances you know you know maybe slapped her across the face a few times but that that was all or maybe maybe there was this level of violence but he was demanding that she go out and murder three people or one person or or something so i see a difference between the evidence that gets admitted in evidence that would be indeed in his commentaries blackstone talks about the two defenses in the same paragraph and treats them as the same dispense simply applied to different circumstances and the elements of the two defenses are the same a reasonable belief of imminent great bodily harm or death and a lack of reasonable alternatives there is thus no reason to treat the defenses differently and the common law supports treating them identical as now just as cavanagh noted in his opinion in a way it is now nearly universally accepted across all jurisdictions that evidence of battery in its effects is relevant to self defense this kind of evidence can explain why a victim of domestic abuse being a reasonably your imminent great bodily harm or death and the reason we feel that she has no alternative but to kill her abuser even when her abuser is not presently attacking her this includes times when the abuser is in another room watching t v or even asleep these same principles applied to the identical defense up to arrest evidence of battery and its effect can be relevant to explain why it may be reasonable for a victim of domestic years to feel that she has no option but to commit the crime charged and that if she does not commit the crime she faces imminent great bodily harm or death even when her abuser is not physically present during the commission of the crime as a general matter it doesn't matter but common law did distinguish between crimes against the law and crimes against nature so for example a murder  difference between south and france and arrest was raised and no why and now justice cavanagh addressed that issue saying that if there is some sort of problem caused by the fact that directly involves a rd party the nd feature of the common law that is relevant to this court's analysis is that the common law presumes that women under the control of men acted under duress when ever they committed a crime in the husband if you're argument i found a little discomfiting since you know i hate to return to the law of coverage for all sorts of reasons but don't isn't even the academic literature on the reactions of persons who have been subjected to this kind of horrific abuse at this point it's gender neutral i mean there can be male victims of this sort of thing about which he would say the same thing so isn't the most you can say that the common law you know person a might be so much under the control of person b that agency has been lost that is very much correct your honor yes we're not arguing that colbert sure applies here or at that this during yes thank you the morning and they please the court there is no disputing that appellant suffered months of significant abuse at the hands of iran's family and there was also no dispute that it was appropriate for the district court consider that history armed robbery it's well all i'm doing is a sense that appellant is saying that that should be submitted to the jury and if the jury thought proprium lee instructed that this was that this met the elements of the  defense but it's not asking for the creation of the dressed offense there is one but the appellant is asking that this evidence be in their so i want to ask you whether you whether the government's position is that it's just impossible this type could render a person powerless to oppose the the in the views or the demands of the abuser or whether you just think this evidence o'connor said in the casey case where the supreme court was considering whether there could be a spouse will consent requirement for abortions and what the court said in that case was we don't look at the entire pool of married people because for a great many women they have wonderful relationships with their husbands this is not a very difficult burden and it would not be an undue burden but it said we need to look at the subset of people for whom this is a real constraint and following that line of reasoning when we apply the objective test don't we look at a subset of people who are abused somehow not all of them are going to be abused enough to maybe some of them are i think the question turns on whether we're looking at abuse as informational history about the abuse or whether we're looking at a for it's psychological implications on its psychological impact on the individual that i'm not going to reasonable person on anybody not necessarily on this person but on a on a reasonable person do i think had imprisoned there made from the philippines and they wouldn't let her out of the house and they forced her to lie down on the floor of the car when she went to church they changed churches every day and she was alone in the house a lot with the children but she was so controlled by those people that she isn't found in the house until one of the children finally tips off the police and they find her cowering  the back of a closet and it seems to me quite reasonable to say that the psychological abuse that she suffered rendered her unable to just walk out the door of the house and go to the police office which would have been entirely appropriate given the kind of treatment use and i understand what is being presented here to be much the same that there can be psychological abuse as well as of course physical abuse that is so extreme that even though in the moment the person theoretically could could have gone up to the clerk at the store and said i'm in trouble please call the police rescue me she could she actually psychological matter couldn't so once we're talking with that level of extremism i think we have other buckets that can take care of other doctrines and take care of such kind of psychological impact we have you know everybody needs to form the proper mens r there is there is not guilty by means of insanity but sure there are other klim she actually cannot walk out of the house herself that she is psychologically a prisoner so i think we have to look at a distinction between  n internal mental process is and if you're some kind of a neuro biological arguments right but there is nothing present why it was not because there's because psychological coercion doesn't exist you know because once we are looking once we're using a reasonable person standard it has to look at a reasonable person it's becomes less clear to me that and the those cases are are basically unanimous on the fact that we don't look at internal psychological now and i'm not suggesting that we should but what i'm concerned about is is just this whole concept that we have to look at the entire population of the united states when we decide what a reasonable person would do instead of the relevant subset you know we look at the subset of people in wheelchairs when we worry about ramps we don't worry about people who are perfectly able to walk it's very common that we look at subsets of people and you might say the subset of people who have been beaten every day for the last six months isn't going to look the same as people who are fortunate enough not to be in that situation you're not asking what any individual is thinking you're just saying they're differently situated and need to be assessed separately so what we're looking at is is and the key question is when we defin category we define a category with respect to the knowledge they've had about those previous experiences so they know about what this is a risk capable of you know what what their situation is in general or if you look at the psychological imprint that those asked experiences had on the person and the evaluating their response to this comes from us so insofar as it affects their perception of the realities in front of them perhaps but insofar as it the internal mental process the kind of evaluation internally that's situation and the person's response to you under the frankly the banner in between object of an subjective here seems very very slippery to me reason a person central is next to to capture what a reasonable person again with the available information with the circumstances and that's why you know every circuit you have considered does has drawn that distinction between psychological and objective external factors you know the nobody's saying nobody's really just to say that i'm just and i'm not sure how distinct has been under years but let me ask you if i could also about the case of united states against young  i understand it in that case the victim of abuse it behaved in ways that seemed your reaction she recanted her charges of abuse if you tried to exonerate the defendant and were the victim of abuse that victim of abuse was behaving in ways that may have seemed unreasonable to it your if in fact the government's case was was convincing the government was allowed to offer expert testimony own similar evidence to explain why this defendant might not have taken apparently rational steps like refusing to commit the robberies or aborting the robbery by asking or cold or use so i want to be very clear about this interacting with that witness might say oh we don't really believe that witness was abused because why didn't the witness wait and so one expert can come in and explain that often women who are abused stay in those relationships and so it's about a stat rehabilitating the credibility of the behavior that she's trying to say you know i was compelled to do this it wasn't my freewill doing it and i had no way of of i had lost the emotional or psychological wherewithal to to walk away and the jury might buy it or the jury might not just as and young the jury might say yeah you know buse victims off america frankly you know we we don't we're not persuaded this time it's the same pattern well one is a question of credibility which is a jury determination about whether the whether the witness is in fact telling the truth whereas the question then they want to is whether taken as true that rises to the legal determination of reasonable ness right over the reasonable person here rick a question imbedded in there that the expert testimony would have addressed which is you know whether this kind of paralysis is even possible you know i mean we've had we've had situations where this is been litigated one way or the other you know veterans coming back from the vietnam war allege that exposure to agent orange did certain things to their mental capacities and we didn't compare them to people who had never stepped foot in southeast asia we compare them to comparable that are ins and did scientific studies about agent orange the same involve raise it more generally i'm just trying to say you know is this a real thing you know if somebody said you know i you know if i yogurt for lunch and now i have you know gone into a brain fog somebody might say whitman you know yogurt doesn't cause brain fog this far as i know it doesn't but the expert testimony would say there is a syndrome there is a in objective thing out there whether this woman needs it is for the jury to decide but it's an objective fact it's a syndrome so i would direct them to the court's attention to the actual expert that helen submitted there's nothing in there saying that there's the proper legal question of whether there were no reasonable alternatives and whether right and whether there's reasonable regulations are going to get reasonable to you or me or reasonable to somebody who had been beaten every day by a domestic partner s brief they said a series of text messages which occurred days or weeks before the robberies and these text messages are between marjorie and stanley's mother and the text messages clearly talk about what is occurring here aaron is going crazy he's beating me up trying to kick me and be out of the house he shot his gun in the mattress and i'm scared i left the apartment when he went to the store thank you i think i should go to the police station and file restraining order against him etc and then she says i want my errand back so i'm so torn i'm just heartbroken what is the district judge to make of this particularly when it comes to the  battering we're going to allow expert testimony in to inform the jury as to the effects of battering and then the trial is going to become about that rather than the elements of proof that the government must meet beyond a reasonable bert doubt to get a conviction for armed robbery so i guess what i'm saying is if if the evidence came in in this case where the guy post before a district judge to exclude certain evidence or does it all just come in and arrest cases i guess including prison been necessary in this proffer to let it come in i'm not sure because you're saying some things that make me curious why it didn't just come in but because there was no seated there was no specific threat that was imminent the actual commission of the crime and they were reasonable alternatives when i would tell and walked into into the store to commit these robberies were two of them aaron stanley was nowhere in the vicinity for the for the st he was down the block in the car while she had the gun unable to do it that that would be the accepting all of the facts in her personal statement as true obviously there contestable but if we accept them is true you're saying that we should adopt a legal fiction that even though she can't do something that would be totally different that would be a very different case that wasn't the expert evidence that was submitted in this case i mean and you're essentially saying unless it's physical we don't care unless it's physical it's not real i'm not saying it's not real unless it's physical it can't be part of the reasonable person analysis that's what we're saying that under the under the under the so people don't have psychological conditions such as you know bipolar ism or they or tourette's syndrome or other kinds of is a is a is an abstract standard that's meant to capture specific observable facts about the circumstances and situation but that once you allow internal mental processing there's a long slippery slope here and i think the other thing we would say is that is that arrest is that the availability of this defense varies depending on the decade of the statute in which the particular criminal statute was passed so that for example a statute in as  two points very very quickly the government just referred to a joke which the case actually was a bench trial in which the district court considered duran's and rejected it just as we're asking this case to be presented to a