WPIC 21.00 Reimbursement of Defense Costs—Introduction

This is a new Chapter in this edition. A few pattern instructions related to reimbursement for self-defense were previously located in WPIC Chapter 17 (Lawful Force-Charges Other than Homicide). Because the reimbursement statutes also apply to homicide, and because of significant 2019 changes to the law (discussed below), the relevant instructions from Chapter 17 have been revised and relocated to this new Chapter 21 of the 11 Washington Practice, Washington Pattern Jury Instructions: Criminal (5th ed.).

The general rule in Washington, commonly referred to as the “American rule,” is that each party in a court action will pay its own attorney fees and costs. See In re Chevrolet Truck, 148 Wn.2d 145, 160, 60 P.3d 53 (2002) (civil); State v. Pearl, 163 Wash. 268, 270, 1 P.2d 315 (1931) (criminal). This general rule can be modified by statute. In re Chevrolet Truck, 148 Wn.2d at 160; State v. Pearl, 163 Wash. at 270. Two statutes allow an acquitted person to recover his or her attorney's fees and other compensation in a narrow class of cases.

RCW 9A.16.110, relating to the defense of self-defense, was first adopted in 1977. This statute allows a defendant who was found not guilty by reason of self-defense to collect reasonable costs of legal fees in prosecutions brought by the State of Washington, so long as the defendant (1) was not engaged in criminal conduct substantially related to the events giving rise to the charges filed against the defendant, and (2) the acquitted defendant was “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 violent crime as defined in RCW 9.94A.030.” RCW 9A.16.110(1) and (3).

Effective February 4, 2019, the second statute, RCW 9A.16.046, authorizes reimbursement of reasonable costs and legal fees to peace officers who are charged with crimes for actions taken while on duty or otherwise within the scope of their authority as peace officers when the peace officer is acquitted by reason of self-defense or of justifiable homicide or use of deadly force under RCW 9A.16.040. Reimbursement of costs and legal fees is only available pursuant to this statute for offenses committed on or after February 4, 2019. Laws of 2019, Chapter 4, § 3 (effective February 4, 2019); Prior: Laws of 2019, Chapter 1, § 7 (Initiative Measure No. 940); Laws of 2018, Chapter 11, § 7 (Initiative Measure No. 940) repealed by Laws of 2019, Chapter 4, § 8; Laws of 2018, Chapter 10, § 3 repealed by Laws of 2019, Chapter 4, § 8.