In this column, we turn to our affiliated attorneys for commentary on legal concerns. Because our affiliated attorneys are located in states all across the nation, their input is valuable and always interesting because laws and practices vary from state to state. This month, our Network President Marty Hayes presented a question about pretrial immunity hearings and an immunity hearing’s effect, if any, on claiming self defense at trial, if the presiding judge at the hearing denies immunity. We asked our affiliated attorneys the following questions:
Does the legal process in your state regarding self-defense defenses allow for a pretrial hearing, such as Florida’s Stand Your Ground law, to argue for dismissal? If so, please explain how the hearing process works in your state.
If a judge denies the request for dismissal of the charges at a pretrial hearing, does this stop the defense from arguing self defense at trial?
Our affiliated attorneys’ responses follow.
Vincent Rivera
Rivera Law, LLC
100 E. Park St, Suite 8, Olathe, KS 66061
913-210-0844
https://riveralawoffice.com/our-attorneys/vincent-rivera/
Kansas is a self defense friendly state. Among the protections under Kansas law is the ability to have a “self-defense immunity hearing.”
The immunity hearing is held sometime before trial. At the hearing a judge will decide whether you’re immune from prosecution because you acted in lawful self defense.
The burden of proof is on the prosecutor to prove that you were not justified in using self defense. To prevail against an immunity claim, the state must prove that an ordinarily prudent and cautious person could believe that (1) a reasonable person would not believe such force was necessary under the circumstances or (2) the defendant did not believe such force was necessary to protect themselves.
If the court denies the motion, we can still argue self defense at trial.
The only disadvantage to this hearing is that, if it fails, the prosecutor has essentially seen our entire case, and had an opportunity to cross-examine witnesses. Thus, they’re able to prepare for trial, and further investigate the matter, knowing exactly what our defense will be.
Craig Rosenstein
Rosenstein Law Group, PLLC
8010 E McDowell Rd Ste 111, Scottsdale, AZ 85257
480-248-7666
https://www.az-defenders.com/attorneys/craig-rosenstein/
In Arizona, there exists no similar mechanism to allow a court to rule in advance of trial on a justification defense. Courts regularly rule in advance of trial on issues surrounding admissibility and suppression. A court could rule that probable cause didn’t exist, but part of raising an affirmative defense is admitting to the act, and thus the probable cause for arrest and continued prosecution is established.
At trial, at the close of the state’s case, a Rule 20 directed verdict motion could be made that no reasonable jury could conclude that justification wasn’t established and the court could dismiss the case at that point, but from a practical perspective the case would almost always be decided by the trier of fact.
Donald O. Chesworth
Tully Rinckey PLLC
400 Linden Oaks Suite 110, Rochester, NY 14625
585-899-1423
https://tullylegal.com
In New York, the first place to challenge the issue would be in the grand jury, then a motion to dismiss after indictment in the trial court.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
678-362-7650
http://johnmonroelaw.com
In Georgia, a person who validly uses self defense is immune from prosecution. So, if he claims immunity, he is entitled to a hearing before trial to determine if he is immune (much like Florida).
The burden is on the defendant to prove by a preponderance of the evidence that he validly used self defense. If immunity is denied, he can still claim self defense at trial, where the burden is on the state to disprove beyond a reasonable doubt that he validly used self defense.
Steven F. Fairlie, Esq.
Fairlie & Lippy, P.C.
1501 Lower State Road, Ste 304, North Wales, PA 19454
215-997-1000
https://fairlielaw.com
Pennsylvania law provides for a preliminary hearing. It is a standard hearing in all Pennsylvania state criminal cases that did not commence by indictment – there is nothing about it that is unique to a self-defense case. In fact, practically, the defense almost never presents testimony at a preliminary hearing and it is nearly impossible to establish self defense at a preliminary hearing, so most such cases have to go to trial.
Steven Howard, Esq.
209 N. Walnut, Upper Level, Lansing, MI 48933
517-374-9000
http://www.stevenhowardesq.com/
In Michigan, once the claim of self defense is made, the burden shifts to the prosecutor to prove that it is not self defense, and that it is not justified.
We do have a preliminary exam where you can argue self defense. The standard for binding the case over for trial is very low, this is the probable cause or more-likely-than-not standard. Some judges follow the law. Others would bind-over a ham sandwich if the prosecutor asked him to.
If the judge fails to throw out the case for self defense, you can still assert it at trial, and the burden is still on the prosecutor to prove it is not justified or self defense.
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.
Educating His Fellow Lawyers
The name of our final commentator on this month’s question, Steven Howard, caught my attention as I was skimming the The Champion, the monthly journal of the National Association of Criminal Defense Lawyers. Imagine my surprise when I turned the page to find illustrative photographs and diagrams of 12 gauge shotgun wads and shot cups. In an article entitled Shotgun Wads: What They Are, What They Do, How Far They Fly, and What They Can Reveal About What Happened, Attorney Howard described re-investigating a scene where a law enforcement officer was killed when struck in the head by 00 buckshot. His expert analysis of the location of shotgun wads found at the scene showed that the suspect was firing into the air, not toward the officers. The facts, Howard observes, indicate that the officer was killed by a fellow officer.
A study of ejected shell casings established where the suspect was standing; shot cups at the scene supported the Howard’s belief that the suspect had fired Remington #8 birdshot into the air, as did the location of the shot shell wads. To support his conclusions, Howard writes, he went to the range and test-fired a large number of 12-ga. shotgun shells to evaluate how far the wad can travel. He used several shotguns to account for different barrel lengths and other variables, but found that barrel length had little influence on where the wad lost momentum and fell to the ground. He found that wads could travel as far as several hundred feet after leaving the barrel. “In the suspect’s case,” he writes, “all the wads were found within less than 10 yards, and one was within 10 feet, of the spot where the police admitted the suspect had been standing.”
Howard relates that the police and prosecutor initially refused to accept that a fellow police officer fired the 00 Buckshot that resulted in the death, but investigators “ultimately realized it was the truth.” He closes with the axiom that “People lie. Evidence doesn’t.”
The full article, for our affiliated attorneys who are NACDL members, is at https://www.nacdl.org/Article/Aug2023-ShotgunWads and for members and attorneys alike, Mr. Howard’s website is http://gunsandammoexpert.com/index.html .
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Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.