HB 169 NOTE 3: PAGES 2-3

At pages 2-3 the staff report says [footnotes omitted]:

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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