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In our December 2020 online journal internationally-known author and instructor Massad Ayoob gave an instructional interview about how making an affirmative defense in court to explain why one used force in self defense shifts the burden of proof.

Because courts and laws vary considerably from state to state, we started a more detailed exploration into this issue in our popular Attorney Question of the Month column in January by asking our affiliated attorneys–

 What is the process in your state for presenting an affirmative defense of use of force in self defense?

What are the potential impediments that may result in a judge denying a self-defense argument?

If denied the ability to argue self defense, what steps would you take to get the best outcome for your client?

Our affiliated attorneys provided such detail about what is involved in arguing self defense to the courts in their state that we broke the discussion into two installments. If you missed the first, we suggest you return to the January journal and read the commentary there, too.

John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534

In Georgia, a person charged with a crime for which the person wants to claim self defense has multiple options:

1. A person who lawfully uses self defense is immune from prosecution. He therefore has an opportunity to raise the issue when he is charged. If he does raise the issue, he is entitled to a hearing before he is tried (because immunity means you cannot even be tried). At an immunity hearing, the burden of proof is on the defendant, by a preponderance of the evidence, to prove that he lawfully used self defense. The hearing is before the judge only without a jury. He may present evidence in any admissible form. It usually consists of the testimony of an eyewitness or the defendant himself. The state also may introduce evidence. If the state fails to offer evidence, which is not unusual, if the defendant laid out a valid case for self defense, immunity should be granted.

2. If the defendant either chooses not to assert immunity, or does so but it is not granted, he still may raise self defense as an affirmative defense in his trial. This is the more traditional method. In order to assert self defense, the defendant has the burden to produce some “slight” evidence of self defense. This burden is quite low, because anything that even hints at self defense is sufficient. If the defendant carries his burden of production, the burden shifts to the state to prove there was no self defense beyond a reasonable doubt. Consider an example where the defendant makes a 911 call and says, “A man attacked me, and I shot him!” The state will probably want to introduce the 911 recording because it constitutes an admission by the defendant that the defendant was the shooter. But the 911 call also constitutes evidence that it was self defense. So, the defendant would not have to introduce any evidence at all. The 911 call is all that is needed to shift the burden to the state to prove beyond a reasonable doubt that there was no valid use of self defense. If the defendant meets the burden of production, he is entitled to a jury instruction on self defense, including an instruction that the state must disprove self defense beyond a reasonable doubt.

In some states, I understand that the defendant must admit to the underlying facts in order to claim self defense (i.e., “I admit that I shot him, but it was in self defense.”) Not so in Georgia. The Supreme Court of Georgia has ruled that a person may both maintain his innocence and claim self defense (i.e., “I didn’t shoot him, but if I did it was in self defense.”) One justice put it this way during oral argument on a case where this was an issue. “Let's say a bank surveillance video shows a woman at an ATM machine and a man comes up behind her wielding a crowbar. As the woman turns around, the man raises the crowbar in a menacing fashion. The woman fatally shoots the man. A woman is charged with murder. She can say, ‘That’s not me in the video, but even if it was, it was self defense.’”) The defendant does not have to admit to being the woman in the video, the shooter, in order to claim self defense.

Bruce Finlay
PO Box 3, Shelton, WA 98584

RCW 9A.16.110(1) states as follows:

No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnaping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030.

RCW 9A.16.020 states as follows:

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary ...

In State v. Smith, 111 Wn.2d 1, 759 P.2d 372 (1988), our state Supreme Court recognized that self-defense and lawful use of force is a valid and available defense to a charge other than assault; in that case the charge was harassment. “Consider, for example, the laws authorizing violent acts in self defense. We do not consider these laws to be unconstitutionally vague merely because someone who acts within their scope may be arrested, prosecuted and even convicted for his actions. Rather, we tolerate the burdens law enforcement places on the individual who has rightfully defended himself in order to ensure that he has not violated clear statutory prohibitions. Nor are we bothered by the element of indefiniteness the self-defense laws create in the offenses – harassment being one – to which these laws apply.” Smith, at 12.

A self-defense instruction to the jury only requires some evidence, from whatever source, that tends to prove the defendant acted in self defense. Although some evidence must be admitted, there is no need that there be the amount of evidence necessary to create a reasonable doubt in the minds of the jurors. The evidence must be viewed subjectively from the defendant’s point of view as conditions appeared to him at the time of the act. The defendant need not have been in actual danger of assault; he was entitled to act on appearances; and if he believed in good faith and on reasonable grounds that he was in actual danger of assault, even if later it developed that he was mistaken as to the extent of the danger, if he acted as a reasonably and ordinarily cautious and prudent man would have done under the circumstances as they appeared to him, he was justified in defending himself. State v. McCullum, 98 Wn.2d 484, 488-89, 656 P.2d 1064 (1983).

The State bears the burden of proving the absence of self-defense beyond a reasonable doubt. McCullum, at 494.

A self-defense claim is predicated upon the right of every citizen to reasonably defend himself against unwarranted attack. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495, 22 A.L.R. 5th 921 (1993).

The claim of self defense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. Jurors are to put themselves in the place of the defendant, get the point of view which he had at the time of the incident, and view the conduct of the other person with all its pertinent sidelights as the defendant was warranted in viewing it. In no other way could the jury safely say what a reasonably prudent person similarly situated would have done. By evaluating the evidence from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees, the approach to reasonableness incorporates both subjective and objective characteristics. It is subjective in that the jury is entitled to stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act. Also, the jury is to consider the defendant’s actions in light of all the facts and circumstances known to the defendant, even those substantially predating the incident. It is objective in that the jury is to use this information in determining what a reasonably prudent person similarly situated would have done. By learning of the defendant’s perceptions and the circumstances surrounding the act, the jury is able to make the critical determination of the degree of force which a reasonable person in the same situation seeing what he sees and knowing what he knows would believe to be necessary. Stated differently, the jury is to inquire whether the defendant acted reasonably, given the defendant’s experience. Janes, at 238-39.

There is no duty to retreat before using force, as long as the defendant is in a place where he has a right to be. State v. Hiatt, 187 Wash. 226, 237, 60 P.2d 71, 75 (1936).


A big thank you to the Affiliated Attorneys who participated in this discussion. Please come back next month when we have a new topic of discussion with the generous men and women who serve as Network Affiliated Attorneys.

To read more of this month's journal, please click here.