A number of other states have Stand Your Ground or similar
self-defense statutes in place, and some of these states provide an individual
with immunity from criminal prosecution when the individual lawfully uses force
pursuant to an applicable self-defense statute. These states vary somewhat in
the procedural processes that are used to determine when a case is entitled to
immunity under a self-defense statute. For example, Colorado, Georgia, and
South Carolina all require that a defendant asserting a right to immunity make
a motion to the trial court and prove the necessary facts by a preponderance of
the evidence at an evidentiary pretrial hearing. The courts in these three
states all agreed that immunity is a more powerful right than any affirmative
defense, and in order to be entitled to such a right, the defendant must bear
the evidentiary burden at the pretrial hearing.
Litigation in Kansas and Kentucky has resulted
in procedures that differ from those used in Colorado, Georgia, and South
Carolina. The Kentucky high court determined that the defendant is entitled to
a pretrial evidentiary hearing when asserting a right to immunity; however, the
prosecution is only required to establish probable cause that the defendant was
not entitled to immunity at such evidentiary hearing. Should the prosecution
meet the probable cause standard, immunity is denied and the defendant is
forced to stand trial. Unlike Kentucky, Kansas declined to address a defendant’s
entitlement to a pretrial hearing, but concluded that the prosecutor needed
only to meet the probable cause standard already in use in Kentucky.
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