Answering Idaho Questions Raised by State v. Zimmerman
The national media has again turned its critical eye on the Florida justice system.  Two years ago, it was State v. Anthony.  This time its focus is State v. Zimmerman.  I am not going to add my name to the countless people giving their take on the case and its aftermath.  Instead, I would like to discuss some legal realities that the Zimmerman trial has brought to the public’s attention.

 Does Idaho have the “stand your ground” law?
You may remember that in the immediate aftermath of the Trayvon Martin killing, there was a great deal of discussion regarding Florida’s “stand your ground” law.  Florida law states that every person “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

While the law may seem sensible to some, it is actually not the traditional law in America. Traditionally, we have required someone to retreat, if possible, before resorting to meeting “deadly force with deadly force.”  The Florida legislature changed the traditional rule because it believed that victims should not be precluded from claiming self-defense simply because they did not retreat under the attack of an aggressor.

Idaho has not adopted a stand your ground law.  Idaho law falls somewhere in between the traditional rule and the “stand your ground” laws.  In an old Idaho Supreme Court case, the Court explained that test in Idaho is whether the defendant acted “as a reasonably prudent person would act under similar circumstances and surroundings.”  The Supreme Court expressly held that there exists no requirement that you first tried to avoid the confrontation.

In 1972, the Idaho legislature listed scenarios when a killing would be considered “justifiable homicide” in the State.  The list included: When you are resisting someone’s attempt to murder or do great bodily injury to another person; and When you are defending your home against someone who clearly intends to enter your home by violence or surprise and commit a felony or hurt someone in the home;

In an Idaho self-defense case, the jury is likely to receive the following instruction:

In the exercise of the right of self‑defense, one need not retreat.  One may stand one’s ground and defend oneself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .  This law applies even though the person being attacked might more easily have gained safety by flight or by withdrawing from the scene.

The language of that instruction—at least by my reading—sounds like a stand your ground law.  So, what’s the practical difference?  In Idaho, a jury may consider whether you had the opportunity to retreat (even if you were not required to retreat).  In Florida, it appears that a jury may not even consider whether you had an opportunity to retreat.

What is Idaho law on initial aggressors?
As a few Zimmerman jurors have come forward to discuss their thoughts during deliberation, it appears that much of the jury’s time was spent considering whether Trayvon Martin or George Zimmerman was the “initial aggressor.”   If Trayvon Martin was the initial aggressor and continued to attack George Zimmerman, then the self-defense analysis is fairly straightforward.  But there are situations where the criminal defendant has killed an initial aggressor and is still not excused by self-defense.

In Idaho, an aggressor can withdraw from combat which he had initiated.  If the aggressor withdraws and makes clear that he has withdrawing, then not only was the self-defense excuse unavailable to the initial victim, but the aggressor could claim self-defense if the victim attacked.

Can an Idaho prosecutor “amend” the charges at the close of trial?
Those who followed the Zimmerman trial will remember that the prosecution was allowed to add jury instructions for manslaughter at the end of a trial that had focused on second-degree murder.  The criminal charges against Zimmerman only listed second-degree murder.  Over a year after filing the charges and at nearly the last minute before jury instructions, the prosecution asked that the judge instruct the jury on two additional charges: (a) manslaughter; and (b) third-degree felony murder.  The Court instructed on the charge of manslaughter but did not instruct on third-degree felony murder.

One of the reasons the Court allowed the instruction on manslaughter is that it is a “lesser included offense” of second-degree murder.  This means that in order to prove second-degree murder, the prosecution would necessarily have had to prove all the elements of manslaughter.  I had more than one person outside the profession ask me whether an Idaho prosecutor could do such a thing.  It seems unfair that you could pour all your focus and energy into defending against one charge only to have the prosecutor try to nail you for a lesser charge at the last minute.

Many of us in the legal profession were surprised by the tactic, but not the judge’s ruling.  It is unusual for the prosecution to ask for an instruction on manslaughter after spending the entire trial focusing on second-degree murder.  This signaled the end of any chance at a second-degree murder conviction (which was a long-shot from the start) and it smelled of desperation.  It is not unusual for a defense attorney to push for a lesser included offense instruction, when the attorney thinks the client will get convicted of something, but that the jury may not want to punish the criminal defendant to the extent sought by the prosecutor.

In Idaho, the court will grant a prosecutor’s request for a lesser included offense instruction when there “is a reasonable view of the evidence presented in the case that would support a finding that the defendant” committed the lesser included offense but not the greater offense.  The test does not turn on the notion of “fairness” mentioned above.  Finally, an Idaho jury must consider the greater offense before considering the lesser offense.

Some Concluding Thoughts.  I would like to say a few words in defense of the judicial system.  First, the system was designed to provide the same rights and protections to those whom the public loved and those whom the public hated.  When the court acts without consideration for public opinion, it is acting in one of its highest capacities.  If you disagree with that point, then we might as well return to lynch mobs.  Second, criminal juries do not return a verdict of “innocent”; only “guilty” or “not guilty.”  The jury is asked to answer a specific question:  Is this man guilty?  The answer to that question can be Yes only when the State has proven that the criminal defendant engaged in all the elements of a crime beyond all reasonable doubt.  A public attack on a jury verdict is not so much an attack on the judicial system as it is an attack on the 6-12 average citizens who were randomly selected for jury duty, and placed on the jury because each side thought them to be the most impartial.  When we are outraged at the verdict, we are outraged at ourselves.

– Sam Creason

If you would like to discuss these matters with Mr. Creason or another attorney at Creason Burris Kuznetsov, please contact our office to set up an appointment.

CBK is pleased to provide articles on its website as a service to its clients and visitors.  These articles are not intended as legal advice. Please be aware that the law differs depending on the circumstances of an individual case and changes over time.