WPIC 190.07 Special Verdict Form—Self-Defense Reimbursement
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 190.07 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions–Criminal
October 2016 Update
Washington State Supreme Court Committee on Jury Instructions
Part XV. Verdict Forms
WPIC CHAPTER 190. Special Verdict Forms
WPIC 190.07 Special Verdict Form—Self-Defense Reimbursement
(Insert case caption.)
We, the jury, return a special verdict by answering the following question:
QUESTION : Did the defendant(defendant’s name)prove by a preponderance of the evidence that the use of force was [justified] [lawful]?
ANSWER: (Write “yes” or “no”)
[(DIRECTION: If you answered “no” to Question 1, sign this verdict. If you answered “yes” to Question 1, answer Question 2.)]
[QUESTION 2: Was the defendant engaged in criminal conduct substantially related to the events giving rise to the crime with which the defendant was charged?]
[ANSWER: (Write “yes” or “no”)]
NOTE ON USE
This special verdict is to be used for cases in which the defendant is seeking self-defense reimbursement under RCW 9A.16.110. Use this special verdict with WPIC 17.06.01 (Self-Defense Reimbursement—Written Concluding Instruction).
Use the bracketed second question, along with the corresponding direction at the end of the first question, if supported by the evidence. Use other bracketed material as applicable.
The bracketed second question in the special verdict is taken directly from the statutory language, RCW 9A.16.110. The committee suggests that practitioners revise this question using the facts of the particular case in order to make it easier for jurors to understand. When using this second question, add an instruction defining for jurors the underlying criminal conduct at issue.
It may be necessary to hold a separate fact-finding hearing on the reimbursement issue following the return of verdict. See Comment below.
Procedures under the reimbursement statute. The statute authorizes defendants to seek to recover their reasonable defense costs if they are found not guilty of certain specified offenses by reason of self-defense. RCW 9A.16.110(1) and (2).
The statute calls upon the fact-finder to determine (1) whether the defendant has proved by a preponderance of the evidence that the use of force was justified, and (2) “whether the defendant was engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant.” RCW 9A.16.110(3). If the jury answers “yes” to the first question, then the judge determines the amount of the defendant’s award. RCW 9A.16.110(2), (3). In determining the amount of this award, the judge must consider the seriousness of the initial criminal conduct. RCW 9A.16.110(3). The judge also may reduce or deny the award if the jury answers “yes” to the second question. RCW 9A.16.110(3).
Modification of the statutory special verdict. The statute, RCW 9A.16.110(5), sets forth a special verdict form. The committee, however, has modified the statute’s special verdict form, concluding that the statute’s form is inadequate for several reasons. First, Question 1 of the Legislature’s special verdict uses the term “self-defense.” The trial instructions will generally state that it is a defense if the use of force was either “justified” or “lawful.” See WPIC Chapter 16 (Justifiable Homicide), and WPIC Chapter 17 (Lawful Force—Charges Other Than Homicide). Second, the Legislature’s special verdict fails to specify that the defendant is required to establish a claim by a preponderance of the evidence (see further discussion of the burden of proof below). Third, the questions set forth in Question 3 of the Legislature’s special verdict have no relevancy in determining whether the defendant has shown by a preponderance of the evidence that the use of force was either justified or lawful. It is the committee’s belief that the verdict form set forth in WPIC 190.07, when given with WPIC 17.06 and WPIC 17.06.01, meets the requirements of the statute, as well as the requirements of State v. Manuel, 94 Wn.2d 695, 619 P.2d 977 (1980), and State v. Watson, 55 Wn.App. 320, 777 P.2d 46 (1989), which are discussed below.
Case law requirements, including as to fact-finding. In State v. Manuel, 94 Wn.2d 695, 619 P.2d 977 (1980), the Washington Supreme Court held that a general verdict of not guilty in a criminal case is not sufficient to establish justification for purposes of former RCW 9.01.200 (recodified as RCW 9A.16.110). The court stated that special interrogatories should be submitted to the jury, after its verdict, inquiring whether the jury was convinced, upon a preponderance of the evidence, that the defendant was in fact in danger, that the defendant did not provoke or invite the danger, and that the means used to respond to the danger were reasonably necessary. Furthermore, the court found that the statute “contemplates” an objective determination that the person’s actions were justified and that the statute requires a “full determination of the facts,” which in a given case may include consideration of evidence that might be inadmissible in a criminal trial but admissible in a civil proceeding.
In State v. Watson, 55 Wn.App. 320, 777 P.2d 46 (1989), the Court of Appeals found that Manuel imposed the following requirements under the statute:
First, the jury must be instructed that the burden is upon the defendant to prove by a preponderance of the evidence that his acts were reasonably necessary to defend himself against an attack which he did not provoke or invite. Second, the statute requires an objective determination that the defendant’s actions were justified. Third, the statute requires a full determination of the facts by considering evidence which may have been inadmissible at trial. Therefore, by implication Manuel requires a separate or supplemental hearing before the jury.
Watson, 55 Wn.App. at 322, 323, 777 P.2d 46 (citations omitted).
The same jury that heard the criminal proceeding must hear the supplemental proceeding for self-defense reimbursement. State v. Park, 88 Wn.App. 910, 915–17, 946 P.2d 1231 (1997). If the original jury has been discharged, the defendant may no longer use RCW 9A.16.110 to obtain reimbursement. The defendant’s sole recourse would be the Legislature’s sundry claim process. State v. Park, 88 Wn.App. at 916–17, 946 P.2d 1231; RCW 9A.16.110(3).
Burden of proof. A claimant under RCW 9A.16.110 has the burden of proving the facts necessary to support his or her claim by a preponderance of the evidence. State v. Anderson, 72 Wn.App. 253, 863 P.2d 1370 (1993). In addition to proving self-defense, the defendant must also provide evidence of a “loss of time, legal fees, or other expenses.” State v. Anderson, 72 Wn.App. at 260.
Restrictions on reimbursement. Reimbursement cannot be sought in a separate civil action, nor can it be sought when mistrial is granted on defendant’s motion and consequently no verdict is ever entered. Rismon v. State, 75 Wn.App. 289, 877 P.2d 697 (1994). It is also unavailable when the charges are dismissed. State v. Joswick, 71 Wn.App. 311, 858 P.2d 280 (1993).
Municipal court actions. A municipal court does not have jurisdiction to order reimbursement in a prosecution for violation of a municipal ordinance, because the State, the only entity which would be obligated to pay under the statute, is not a party to such an action. City of Seattle v. Fontanilla, 128 Wn.2d 492, 909 P.2d 1294 (1996). Nonetheless, a municipal court, upon request, may still wish to instruct the jury using WPIC 17.06.01 (Self-Defense Reimbursement—Concluding Instruction) and use this special verdict form to establish the factual predicate required by RCW 4.92.040 (see Comment to WPIC 17.06.01.)
[Current as of December 2015.]