1. Playground Rules

The law surrounding self-defense in Washington has its roots in the culture of the elementary school playground.

If a bigger bully picks a fight with you, you have the right to fight back and defend yourself.

If you pick a fight with a bigger bully and lose, you shouldn't expect any sympathy.

The law, of course, provides a more sophisticated definition: a defendant cannot be found guilty of assault if a jury finds that the defendant had the right to use self-defense against the alleged victim.

Put another way: To prove a defendant guilty when the defendant claims self-defense, the State has to prove beyond a reasonable doubt that the defendant did nothave the legal right to use self-defense.

And if the defendant startsthe fight, the defendant is considered the first aggressor under Washington law. In this case, a defendant cannot legally invoke self-defense as a defense at trial.

Put another way: If the State proves beyond a reasonable doubt that the defendant was the first aggressor, andthat the defendant's acts and conduct provoked the fight, then the defendant cannot claim self-defense as a defense to the assault charge.

These rules, essentially, are the legally sophisticated playground rules that govern criminal assaults in Washington.

2. Words and Punches

Now we turn to State v. Kee, an assault case decided in the Court of Appeals last December.

As with most fights, the story of what happened depends on who you ask. But in a nutshell, this is what happened: the victim swore at Kee. Then Kee swore at the victim. Then the parties started throwing punches. In the end, Kee broke the victim's nose.

The State charged with second degree assault. After the parties finished the evidence portion of the trial (but before jury deliberations, Kee and the State argued over whether the jury should be instructed on the “first aggressor” legal theory.

This was not surprising. In general, prosecutors always want a first aggressor jury instruction, because then jurors have to think about whether the defendant started the fight, which of course makes a guilty verdict more likely. Defense attorneys never want this instruction, because the first aggressor instruction can undermine a self-defense argument, which of course makes a guilty verdict more likely

The trial court gave the instruction. The jury found Kee guilty. Kee appealed.

The Court of Appeals overturned her conviction.  The Court didn't have a problem with the trial judge giving a first aggressor jury instruction because—based on the evidence—a jury could have concluded that Kee started the fight.

But under the law of self-defense in Washington, words alone don't make the defendant a first aggressor. In other words, a defendant can still claim self-defense even if she verbally starts the fight.

Now maybe a jury would still have found Kee guilty (the State argued that Kee did more than just launch insults), but the jury needs to know that words are not enough.