Contact Your Elected Legislators - Support SB 1004

Just published, Idaho SB 1004 would amend Idaho’s already pro-self defense law, to (i) make it harder for the State to prosecute a citizen for use (or threat) of force in self defense; and (ii) to allow for recovery of costs incurred for a successful defense against such a prosecution. At first read, I think SB 1004 is a thoughtful piece of legislation and would make Idaho’s already good self defense law even better.

Existing Idaho law 19-202A(4) provides:

“In any prosecution for the unlawful use of force, including deadly force, or the attempted or threatened use of force contrary to title 18, Idaho Code, the burden is on the prosecution to prove beyond a reasonable doubt that the use of force, attempted use of force or threat to use force was not justifiable.” (emphasis added).

So, under 19-202A(4) once a defendant accused of an offense involving the use of force claims self defense (as defined by law - see, for example, 18-4009), to convict, the prosecution must, prove - beyond a reasonable doubt - that the use of force was not justified. “Beyond a reasonable doubt” is the highest evidentiary standard. (Most people know it is the standard for criminal cases.) It means, essentially, the jury must be convinced that there is no other logical explanation.

But, what if the State tries and fails to meet that burden in a self defense case? The defendant is acquitted, but probably spent time in jail waiting for trial (missing work), suffered the stress of trial, and incurred huge legal bills (think of Kyle Rittenhouse). SB 1004 seeks to address these risks by (i) requiring an early pre-trial hearing at which the State must meet an intermediate standard in order to proceed with the prosecution; and (ii) allowing the defendant to recover defense costs if acquitted on grounds of self defense.

SB 1004 seeks to minimize the burden on the defendant (and perhaps also to minimize the State’s potential exposure to defense cost reimbursement), by requiring an immunity hearing early in the process. Once the defendant establishes a “prima facie claim of self defense” (i.e., a low standard that establishes the elements of justification that the prosecution would be required to disprove beyond a reasonable doubt as discussed above), in order to proceed with the prosecution, the burden is on the prosecution to overcome the self defense immunity provided by SB 1004 “by clear and convincing evidence.”

The “clear and convincing evidence” standard is an intermediate standard that requires a showing that there is a high probability that something is true, or that it is substantially more likely than not. So, to proceed with the prosecution, the State must show there is a high probability it will be able to prove, beyond a reasonable doubt, that the use of force was not justified.

If the State does proceed and the defendant is acquitted, SB 1004 provides for the defendant to recover defense costs provided that “the trier of fact [i.e., the jury] must find that the defendant's claim of self-defense was sustained by a preponderance of the evidence.”

“A preponderance of the evidence” is the lower standard generally applied in civil, not criminal, cases, and means basically that the jury believes something is more likely than not - maybe even just 51%. A civil law standard is appropriate here as recovery of costs is properly treated as a civil, not criminal, matter.

In my opinion, and particularly in light of the recent Rittenhouse (and McCloskey) cases that received national attention, I think SB 1004 is a good piece of legislation. Its application of different burden of proof standards for different parts of the legislation is thoughtful and appropriate.

Sadly, today we as citizens need to consider how we defend ourselves not only against violent criminals, but also against politically motivated prosecutors. SB 1004 recognizes this reality and offers us citizens some additional protections against over-zealous, or politically motivated, prosecutors.

I suggest you contact your elected legislators and ask them to support SB 1004.

https://legislature.idaho.gov/sessioninfo/2023/legislation/S1004/