Self Defense and Recoupment of Costs and Attorney’s Fees


By Stephen Hayne

WSTLA Criminal Law Section Chair

Of all the cases I try, my favorites are assaults: from the simple shove to the good-old-fashioned-knock-down-drag-out donney brooks. They almost always involve self defense issues and the challenge is usually convincing the jury that the other guy had it coming. Since it takes two to tango (or tangle for that matter), the question usually comes down to which of the combatants is the bigger SOB. Persuade the jury that the defendant was merely exercising his God-given right to protect himself, his family or his property and a “not guilty” verdict usually follows. After all, this is America and the ghost of John Wayne still haunts our collective conscience. While the facts (with a reasonable degree of lawyerly assistance) will still determine the outcome, the law of self defense is a last bastion of refuge for the accused in this State.

The law of “self defense” (or others or property) in Washington is very specific and, if accepted by the jury, not only exonerates the defendant from criminal liability (RCW 9A.16.020), but also provides opportunity for recoupment of all attorney’s fees, costs and other expenses caused by prosecution of the case (RCW 9A.16.110).

RCW 9A.16.020 and WPIC 17.02 define the circumstances under which force may be lawfully used. WPIC 17.02 (as revised in 1986) provides (in pertinent part):

It is a defense to the charge of [assault] that the force used was lawful as defined in this instruction. The use, attempt, or offer to use force upon or toward the person of another is lawful when used by a person who reasonably believes that he [or another] is about to be injured in preventing or attempting to prevent an offense against his person [or his property] and when the force is not more than is necessary.

The person using the force may employ such force and means that a reasonably prudent person would use under the same or similar circumstances as they appeared to the person, taking into consideration all the facts and circumstances known to the person at the time of the incident. The State has the burden of proving beyond a reasonable doubt that the force used by the defendant was not lawful.

“Necessary” is defined in WPIC 17.05 as follows:

Necessary means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended, under the circumstances as they reasonably appeared to the actor at the time. (Emphasis added).

The Washington Supreme Court revised the definition in 1986 to make it clear to the jury that the standard to be applied in deciding what degree of force was

”necessary” under the circumstances was according to the subjective perspective of the defendant. In other words, even if the objective intentions of the alleged victim appeared innocuous to third persons, the judge and jury must apply the standard according to the circumstances as they appeared subjectively to the defendant, based on the knowledge and information he had at the time of the incident. See State v. Bradley, 20 Wn.App 152 (1978), WPIC 17.05, (1986 Supplement).

In addition, WPIC 17.04 defines the lawful use of force even when the defendant is mistaken over the intentions of the alleged victim:

If a person acting as a reasonable prudent person mistakenly believes himself to be in danger of injury or of an offense being committed against him, he has the right to defend himself by the use of lawful force against that apparent injury or offense even if he is not actually in such danger. (Emphasis added).

See State v. Penn, 89 Wn.2d 63 (1977), State v. Miller, 141 Wn. 104 (1926) and State v. Dunning, 8 Wn.App 340 (1973).

In other words, if the “victim” of the assault had previously attacked the defendant the jury must consider the defendant’s knowledge of that fact. However, evidence that the victim had a history of violence unknown to the defendant would not be admissible since it would have no bearing on the defendant’s subjective view of the circumstances at the time of the assault.

The defendant is entitled to consideration of his claim of self-defense whenever the evidence supports it, no matter how tenuous:

. . . only where no plausible evidence appears in the record upon which a claim of self defense might be based is an instruction on the issue not necessary. State v. Adams, 31 Wn.App 393, at p. 396, (1982).

Self-defense instructions are therefore necessary whenever there is any evidence tending to establish self-defense.

It is also well-settled law in the State of Washington that whenever a claim of self-defense has been raised by the evidence at trial, the State assumes the burden of proving beyond a reasonable doubt the absence of self-defense.

In State v. McCullum, 98 Wn. 2d 484 (1983) the Court held:

As stated previously, there need only be some evidence, admitted in the case from whatever source to raise the issue of self-defense . . . the jury then should be instructed that the State bears the burden of proving the absence of self-defense beyond a reasonable doubt. (at p. 500)

See also, State v. Acosta, 101 Wn.2d 612 (1984) and paragraph 4 of WPIC 17.02.

Remember, the lawful use of force also applies to persons coming to the aid of another about to be injured or in preventing a “malicious interference” or trespass with property lawfully in the defendant’s possession. See WPIC 17.02 and RCW 98.16.020 (3).

In addition, WPIC 17.05 exonerates the defendant from any duty to retreat when the alleged “victim” advances on him:

“It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat.”

See also State v. Allery, 101 Wn.2d 591 (1984).

Reimbursement upon acquittal.

Should the jury acquit the defendant, he is then entitled to a hearing on the issue of reimbursement of his expenses and actual attorney’s fees pursuant to RCW 9A.16.110. That statute provides as follows:

(1) 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, kidnapping, arson, burglary, rape, murder, or any other heinous crime.

(2) When a substantial question of self defense in such a case shall exist which needs legal investigation or court action for the full determination of the facts, and the defendant’s actions are subsequently found justified under the intent of this section, the state of Washington shall indemnify or reimburse such defendant for all loss of time, legal fees, or other expenses involved in his or her defense. This indemnification or reimbursement is an award of reasonable costs which include loss of time, legal fees, or other expenses and is not an independent cause of action. The determination of an award shall be by the judge or jury at the discretion of the judge in the criminal proceeding. To award these reasonable costs the trier of fact must find that the defendant’s claim of self-defense was sustained by a preponderance of the evidence: Provided, however, That nothing shall preclude the legislature form granting a higher award through the sundry claims process.

(3) Whenever the issue of self defense under this section is decided by a judge or whenever a judge exercises the discretion authorized under subsection (2) of this section in determining an award, the judge shall consider the same questions as must be answered in the special verdict under subsection (4) of this section.

(4) Whenever the issue of self defense under this section has been submitted to a jury, and the jury has found the defendant not guilty, and the judge has submitted an award determination to the jury, the court shall instruct the jury to return a special verdict in substantially the following form:

  1. Was the finding of not guilty based upon self defense?
  2. If your answer to question 1 is no, do not answer the remaining question.
  3. If your answer to question 1 is yes, was the defendant:
    1. Protecting himself or herself?
    2. Protecting his or her family:
    3. Protecting his or her property?
    4. Coming to the aid of another who was in imminent danger of a heinous crime?
    5. Coming to the aid of another who was the victim of a heinous crime?

A separate evidentiary hearing must be convened to allow the jury to hear any relevant suppressed evidence. The jury is then instructed to determine whether, by a preponderance of the evidence, the defendant acted in self defense or defense of another. State v. Watson, 55 Wn.App 320 (1989). If the answer is affirmative, the defendant is entitled to reimbursement from the State of all attorneys fees, expenses and loss of time from work.

Thus, the law presents a unique opportunity for criminal defense counsel and a potentially perilous journey for prosecutors when ever the issue of “self-defense” is presented to a jury. The legislature has made its wishes crystal clear – no one who is defending himself, others, or his property may be made to suffer at the hand of an overzealous prosecutor. We defenders of liberty, justice and the American Way can only hope similar laws protecting other wrongfully accused persons will be passed in the future. What a marvelous idea!

Steve limits his practice to criminal defense and is currently Chair of the Criminal Law Section of WSTLA, Past-Chair of the WSBA Criminal Law Section, Vice President of the WACDL, and co-author of Defending DWIs in Washington.