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The Defenses of – Self-Defense & the Defense of Others
Overview of Self-Defense Laws in Washington State
The anger, fear and frustration of having to deal with criminal charges when you were only acting in self-defense can be overwhelming. Being accused of a crime when your use of force was called for and lawful can feel dehumanizing and unfair. Washington State has excellent ‘Stand Your Ground’ laws that allow for self-defense as a valid defense against certain charges..
If you’ve been charged with a serious crime such as felony assault or any other violent crime, you will need to retain a defense attorney as soon as possible. For assistance in Washington, consider DV Assault Attorney Phillip L. Weinberg to protect your rights and aggressively defend you. If you’ve been charged with assault you could face serious penalties that might include jail time, fines and more. The penalties will depend on the level of your charges, as well as the details of your case. Thus, it’s important to review the different types of assault charges with your attorney and go over possible defenses applicable to your case.
This topic is nicely summarized and explained in Prosecutors’ Domestic Violence Handbook (2014), prepared by the Washington Association of Prosecuting Attorneys and the King County Prosecuting Attorney’s Domestic Violence Unit found online: HERE. It also shows how the government with its overwhelming powers – the state – views you and your case when you are charged with assaulting someone.
Use of Force Laws
In Washington, you are allowed to use force against someone in certain circumstances, including in self-defense. The laws, detailed in RCW 9A.16.020, say you can use force in the following situations.
- When someone is getting ready to injure you – or when you believe they are
- To prevent a malicious trespass or “other malicious interference with real or personal property”
- To detain someone who wrongfully came on your property
- To protect a mentally handicapped person from hurting others
Self-Defense & Stand Your Ground Laws
The crux of Washington’s self-defense legislation is found in RCW 9A.16.110(1). The statutes read: “No person in the state shall be placed in legal jeopardy of any kind whatsoever for 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.” Washington’s Stand Your Ground laws provide solid protection against harm and liability for law-abiding citizens. If you are being attacked or think you’re about to be attacked, you have the legal authority to protect yourself. Also, while some states require that you retreat if you think you’re about to be harmed, Washington doesn’t mandate retreat. If someone maliciously approaches you or your home, you do not have to try to escape first. You can stand your ground and defend yourself, your family and your home. If you injure or kill the attacker and are arrested, you can use self-defense as your defense.
To be entitled to use self-defense as justification for your actions, the force you used must not have been more than necessary. The force must be reasonable. Also, you must not have been committing a crime when you were attacked, and the incident must have occurred on premises where you were legally entitled to be.
Successful Self-Defense Cases
When you are charged with a crime, it’s the State of Washington that’s prosecuting you, e.g., State of Washington (or some subdivision thereof, a county or City, etc.) vs. YOU. As such, if you and your attorney present a solid case, and the court finds you not guilty because you acted in self-defense, your case will be dismissed and the state will reimburse you for all reasonable costs, including your loss of time, legal fees and other expenses involved in your defense, as provided by RCW 9A.16.110(2). That would, however, require a trial. Occasionally, the prosecutor will dismiss the case before trial on his own initiative (PA’s motion) due to evidentiary problems with the prosecution’s case or simply because it is clearly fair to do so.
What is a “Smith Affidavit”?
“SMITH AFFIDAVITS” IN DV ASSAULT CASES
The Signed Statement/Smith Affidavit
As excellently outlined in the Prosecutors’ Domestic Violence Handbook (2014), prepared by the Washington Association of Prosecuting Attorneys and the King County Prosecuting Attorney’s Domestic Violence Unit (Authors: Carrie Hobbs, Pam Loginsky, and David Martin), In many cases, there are no independent witnesses to a domestic violence incident. In other instances, independent witnesses may see or hear only parts of an incident. Law enforcement officers may see only the aftermath of an incident. Neighbors may only hear screams or shouting without seeing what is happening. Often the only witness to the violence is the victim.
For many reasons, a victim of domestic violence may not wish to proceed with the prosecution of a perpetrator. In the weeks or months between an incident and a trial, the perpetrator may have overtly threatened the victim. The passage of time may have allowed the perpetrator to exercise a number or tactics of power and control to dissuade the victim from going forward. The victim may be in hiding or simply afraid to confront the perpetrator in court as an accuser. By the time of trial, a victim might minimize the initial report of violence, vary from the initial report, or recant altogether.
Despite these difficulties, it may be possible to present a victim’s initial account of a domestic violence incident at trial, if the responding officer has obtained a signed statement from the victim. If the victim is able, the officer should consider letting the victim write the statement. Any victim authored statement should be reviewed to determine whether all necessary details are included or whether additions need to be made. The written statement can be used to refresh the victim’s recollection if she claims not to remember the incident. Also, it can be used to impeach the victim if she testifies adversely to the State’s case. The victim cannot say the officer “misinterpreted” if she wrote the statement herself. See ER 803(a) (5); ER 607.
Ideally, the written statement should take the form of a “Smith affidavit”. A Smith affidavit, named after the case in which its admissibility was recognized State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982), is a sworn victim statement taken for the purpose of determining the existence of probable cause. Such a statement is not substitute for a full and complete investigation of a domestic violence incident and may not be used in lieu of live testimony from a victim, but it may be used to fill substantive evidentiary gaps at trial.
The evidentiary gaps may arise when a victim recants a report of domestic violence. The recantation may take many forms. A victim may simply ask that charges be dismissed, a victim may recant in a subsequent statement or at trial, or recantation may be made in a letter to the court, prosecutor, or defense attorney. Recantation should place advocates, law enforcement, and prosecutors on notice that issues relating to a victim may not yet have been adequately addressed.
Speaking to a Criminal Defense Attorney in Washington
Self-defense is a viable affirmative defense against numerous charges including assault, disorderly conduct, harassment and murder. I am fully versed in all aspects of the Washington criminal justice system and know how to craft a sound defense based upon self-defense if the facts and history of your case support this defense in good faith. If you acted in self-defense it must be affirmatively pled and relied upon to try to exonerate you. Get experienced King County, Snohomish County and Seattle Assault / DV defense now. Do not delay. I can help. I care about your legal rights.
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