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).