What should “Stand-Your-Ground” immunity hearings look like?

In a previous post, I discussed the legal authority showing a right to a pre-trial, evidentiary Stand-Your-Ground  immunity hearing.

In such cases, the Defendant should bear the burden to prove his or her entitlement to a judicial declaration of immunity and order of dismissal on the basis of statutory immunity. Every appellate court addressing this issue has determined that the accused has a right to a pre-trial evidentiary on their claims of statutory immunity pursuant to the respective “Stand-your-Ground”-type laws.

Similarly, each court has placed the burden of proof on the accused to prove their entitlement to such immunity at the pre-trial hearing. See Peterson, Guenther, Duncan, and Dennis v. State, 51 So. 3d 456 (Fla. 2010)

For instance, the Supreme Court of Colorado held that “[s]ince [the “Stand-your-Ground” statute] contemplates that an accused should be permitted to claim an entitlement to immunity at the pretrial stage of a criminal prosecution, we believe it reasonable to require the accused to prove his entitlement to an order of dismissal on the basis of statutory immunity.”  People v. Guenther, 740 P. 2d 971, 980 (Colo. 1987)

I see no rationale nor cause for Alabama to deviate from the persuasive authority on this issue from the other jurisdictions. Accordingly, in Alabama, the appropriate burden of proof at pre-trial, evidentiary immunity hearings pursuant Section 13A-3-23(d) should fall upon the person seeking to invoke such immunity.

But what is the standard of proof at such hearing? In my opinion, following the authority of other jurisdictions, “preponderance of the evidence” should be the proper standard for the trial court to use in determining such immunity. Each foreign appellate court has also determined that “preponderance of the evidence” is appropriate standard of proof for those invoking such statutory immunity at pre-trial hearings.

In Guenther, at  980, the Supreme Court of Colorado held:

While we conclude that the burden of proof should be placed on the defendant, we decline to require that the defendant prove his entitlement to immunity beyond a reasonable doubt. We believe that the “preponderance of the evidence” is the appropriate standard of proof applicable to a defendant’s pretrial motion to dismiss pursuant to [the “Stand-your-Ground” law] . . . The preponderance of evidence standard, in our view, is more consistent with that expressed legislative intent than is the more rigorous reasonable doubt standard of proof.

Similarly, the Florida Appellate Court held:

we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

Peterson v. State, 983 So. 2d 27, 29 (Fla.Dist.Ct.App. 2008)  See also Duncan and Dennis.

It is important to note that these courts have constantly found on these issues that the “Stand-your-Ground” immunity provisions establish greater rights than provided for other crimes.  These type of hearings cannot be determined by a summary judgment-type standard. “[A] motion to dismiss based on “Stand-your-Ground” immunity cannot be denied because of the existence of disputed issues of material fact. Hair v. State, 17 So. 3d 804, 806 (Fla.Dist.Ct.App. 2009)  A Florida intermediate court stated that “[w]e reject any suggestion that the procedure . . . should control so as to require denial of a motion whenever a material issue of fact appears.” Peterson v. State, 983 So. 2d 27, 29-30 (Fla.Dist.Ct.App. 2008)

A “probable-cause” analysis does not control either. [“Stand your Ground”]-type immunity provisions “must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule.” State v. Duncan, 392 S.C. 404, 410-11, 709 S.E. 2d 662, 665 (2011), reh’g denied (June 8, 2011)

In Dennis, the Supreme Court of Florida held:

We also reject the State’s contention that the pretrial hearing on immunity in a criminal case should test merely whether the State has probable cause to believe the defendant’s use of force was not legally justified.

Instead as expressed by an intermediate appellate division in Florida:

The legislature’s enactment of [the “Stand-your-Ground” statute] placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders. In this case, that burden required the trial judge to make order out of the chaos. . .

State v. Gallo, 76 So. 3d 407, 409 (Fla.Dist.Ct.App. 2011)

Accordingly, the trial court must weigh the evidence presented at the pre-trial evidentiary hearing, and if a preponderance of the evidence suggests the accused acted in self-defense as defined by Section 13A-3-23, the Court must, as a matter of law, declare the accused immune from further criminal prosecution and dismiss the indictment or criminal complaint.