WPIC 190.07 Special Verdict Form—Self-Defense Reimbursement

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 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction) and WPIC 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction).

Do not use this instruction if the defendant is only seeking indemnification or reimbursement pursuant to RCW 9A.16.046 for the justified use of force. Use WPIC 190.075 (Special Verdict Form—Justified Force Reimbursement) for cases involving a police officer's claim for indemnification or reimbursement under RCW 9A.16.046 for justified use of force.

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 WPI 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.

RCW 9A.16.110. This instruction has been revised for this edition to reflect legislative changes. Laws of 2019, Chapter 4, § 3 (effective February 4, 2019). In 2019, the Legislature amended RCW 9A.16.110 concerning self-defense reimbursement and enacted RCW 9A.16.046 concerning a request for reimbursement of defense costs based upon a finding of justified force. See WPIC 21.00 (Reimbursement of Defense Costs—Introduction); Comments to WPIC 21.01 (Reimbursement of Defense Costs—Self Defense Reimbursement—Oral Introductory Instruction), WPIC 21.03 (Reimbursement of Defense Costs—Justified Force— Oral Introductory Instruction), and WPIC 190.175 (Special Verdict—Justified Force Reimbursement).

Procedures under the reimbursement statute. The statute authorizes defendants to seek to recover their reasonable defense costs if they are found not guilty by reason of self-defense. RCW 9A.16.110(1) and (2).

The statute calls upon the original fact-finder (jury or the court if the trial was to the bench) to determine (1) whether the defendant has proved by a preponderance of the evidence that the use of force was objectively reasonable, 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). Typically these questions will be given to the same jury (or to the court if the trial was to the bench) after the original verdict has been rendered. See discussion below of Fact-Finding by Use of Special Verdict.

In determining the amount of an award for reimbursement of defense costs, 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). After an award is made, the defendant must act to collect the court's award pursuant to the process established by RCW 4.92.040.

Modification of the statutory special verdict. The statute, RCW 9A.16.110(5), sets forth a special verdict form that does not specify any burden of proof. The WPI Committee believes that the verdict form set forth in WPIC 190.07, when given with WPIC 21.01 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Oral Introductory Instruction) and WPIC 21.02 (Reimbursement of Costs—Self-Defense Reimbursement—Concluding Instruction), meets the intent 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), discussed below.

Fact-Finding by use of Special Verdict. 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) concerning attorney fee reimbursement. 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:

State v. Watson, 55 Wn.App. at 322–323 (citations omitted).

Procedurally, 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. Instead, the defendant's sole recourse would be the Legislature's sundry claim process. State v. Park, 88 Wn.App. at 916–17; RCW 9A.16.110(3).

Burden of proof. Generally, in Washington a claimant 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), and cases cited therein. Applying this general rule to RCW 9A.16.110, the self-defense reimbursement statute, the court in Anderson held that the defendant 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. at 260. 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); RCW 9A.16.110(2). 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 21.02 (Reimbursement of Defense Costs—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 21.02 (Reimbursement of Defense Costs—Self-Defense Reimbursement—Concluding Instruction)).