WPIC 21.03 Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instr...
11 WAPRAC WPIC 21.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 21.03 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 21. Reimbursement of Defense Costs
WPIC 21.03 Reimbursement of Defense Costs—Justified Force Reimbursement—Oral Introductory Instruction
Based on your verdict in this case, there is an additional issue that the law requires you to decide.
The defendant has alleged that the incident occurred while [he] [she] was [on duty] [or] [[otherwise] acting within the scope of [his] [her] [authority]] as a peace officer and that [his] [her] use of [deadly] force was [justified] [or] [in self-defense]. You will be asked to decide whether the defendant was [on duty] [or] [[otherwise] acting within the scope of [his] [her] [authority]] as a peace officer] when [he] [she] used [deadly] force and whether the use of such [deadly] force was [justified] [or] [in self-defense].
Under our state law, if the defendant was on was [on duty] [or] [[otherwise] acting within the scope of [his] [her] [authority]] as a peace officer and [his] [her] use of [deadly] force was [justified] [or] [in self-defense], the defendant has the right to be reimbursed by the state of Washington for the reasonable cost of legal fees and expenses involved in [his] [her] defense as well as for loss of time.
This next phase of the trial differs from the phase you have already completed. First, you will apply the preponderance of the evidence standard. When it is said that a claim must be proved by a preponderance of the evidence, it means you must be persuaded, considering all of the evidence in the case, that the claim is more probably true than not true. [The defendant has the burden of proving by a preponderance of the evidence that [his] [her] use of [deadly] force was [justified] [in self-defense] and that [she] [he] was acting as a peace officer.] Second, when you deliberate on these questions, only [ten] [five] of you will need to agree.
During your deliberations, you should consider the evidence presented to you in the first phase of this case. [[You will also hear and should consider additional evidence on this question in this next phase of the trial.] [You will not hear additional evidence on this question in this next phase of the trial.]]
Until you are in the jury room for deliberations, you must not discuss the case with the other jurors or with anyone else, or remain within hearing of anyone discussing it. It is your duty as a jury to decide the facts in this case based upon the evidence presented to you during the entire proceeding.
Until you are dismissed at the end of this trial, you must continue to avoid outside sources such as newspapers, magazines, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial.
NOTE ON USE
This oral instruction should only be used in cases in which a defendant is claiming justified force reimbursement under RCW 9A.16.046. This instruction may be used as the transition between the main phase of the trial and the reimbursement phase.
Do not use this instruction if the defendant is only seeking reimbursement pursuant to RCW 9A.16.110 for self-defense. Use WPIC 21.02 (Reimbursement of Defense Costs—Self Defense Reimbursement—Oral Introductory Instruction) for cases involving a defendant's claim for reimbursement under RCW 9A.16.110.
Use bracketed material as applicable.
Use WPIC 2.16 (Peace Officer—Definition) with this instruction.
Use WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction) and WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement) with this instruction.
COMMENT
RCW 9A.16.046. This is a new instruction for this edition based upon the justified force reimbursement statute, RCW 9A.16.046 (Laws of 2019, Chapter 4, § 7 (effective February 4, 2019)). This statute applies only to a crime arising after the effective date.
This instruction should only be used in cases in which a defendant is claiming reimbursement under RCW 9A.16.046, and should not be used for reimbursement or indemnification under RCW 9A.16.110. See WPIC 21.00 (Reimbursement of Defense Costs—Introduction) and Comment to WPIC 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction).
In limited circumstances, a peace officer may choose to seek reimbursement under both 9A.16.110 and 9A.16.046. (This might arise when there is an issue as to whether the officer was acting within the scope of his/her duties as a peace officer.) In such cases, the court would need to carefully integrate information from both WPIC 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction) and WPIC 190.07 (Special Verdict Form—Self-Defense Reimbursement) with this instruction, WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction), and 190.075 (Special Verdict Form—Justified Force Reimbursement).
This instruction is provided to explain to jurors that their work is not completed with the not guilty verdict and to explain how the reimbursement phase differs from the first phase of the trial. The entire instruction is designed for those cases in which the jurors will hear additional evidence before they receive the written instructions in the case. For these cases, jurors will need an oral instruction to give them a context for understanding the additional evidence.
For those cases in which no additional evidence will be offered, the judge may offer this instruction using the correct bracketed language in paragraph 5 of the instruction, or the court may proceed more directly to the written instruction (WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction)) and the special verdict form (WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement)).
Burden of Proof. The justified force reimbursement statute, RCW 9A.16.046, was enacted in 2019. The statute itself is silent regarding the burden of proof or the procedure to be followed in the reimbursement phase. Bracketed material in paragraph 4 of the instruction places the burden of proof upon the defendant. This language is consistent with State v. Anderson, 72 Wn.App. 253, 863 P.2d 1370 (1993). Anderson held that a person seeking reimbursement of self-defense expenses under RCW 9A.16.110 must prove lawful self-defense by a preponderance of the evidence. State v. Anderson, 72 Wn. App. at 260. The bracketed language regarding burden of proof is also consistent with RCW 9A.16.110. See also discussion in Comment to WPIC 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction).
For further discussion of issues relating to justified force reimbursement proceedings, see WPIC 21.00 (Reimbursement of Defense Costs—Introduction); see the Comments to WPIC 21.04 (Reimbursement of Defense Costs—Justified Force Reimbursement—Concluding Instruction) and WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement).
[Current as of February 2020.]
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