Immunity from Prosecution
Have you used a weapon to protect yourself from an attack? Have you done so to protect a family member, or even a total stranger? The law in Georgia allows you to use force (such as pushing, striking, or kicking another person), and in fact deadly force (any force “intended to or likely to cause death or great bodily harm”) to protect yourself and others from harm, and in doing so, protects you from criminal responsibility and civil liability. This is the idea behind immunity from prosecution.
Force As Self-Defense
Immunity from prosecution refers to a legal doctrine where an individual may be protected from being held liable for acts that would – under normal circumstances – be considered a crime. This is usually applicable in cases where that individual has exercised force as self-defense in a manner the law recognizes as reasonable and “justified.”
Immunity From Prosecution in Georgia
In Georgia, specific statutes grant immunity from prosecution those who have used deadly force to defend themselves or others from attack. O.C.G.A. §16-3-24.2 provides that an individual “who uses threats or force in accordance with Code Section 16-3-21 [defense of self of others]; 16-3-23 [defense of habitation]; 16-3-23.1 [“stand your ground”; no duty to retreat]; or 16-3-24 [defense of property] shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person. . . .”
Avoid Criminal Responsibility
To prevail in a claim of immunity and avoid criminal responsibility for an injury to another, a defendant (a person accused of a crime, meaning the criminal process has formally begun) bears a burden of showing he or she is entitled to immunity under O.C.G.A. §16-3-24.2 (the state statute mentioned above that sets the rule for immunity from prosecution) by a legal standard known as “preponderance of the evidence.” See Bunn v. State, 284 Ga. 410 (2008). A preponderance of the evidence is a level of proof much less than beyond reasonable doubt (what is required in a criminal case to return a conviction) but more than probable cause, which is the level of evidence required to determine whether a crime may have been committed, thereby authorizing an arrest. Nevertheless, it is a burden the defendant must meet, which is normally not the case in a criminal proceeding, as the defendant has no burden of proof; the burden of proof always rests with the prosecution to prove the elements of the offense.
The trial court must determine prior to trial whether a person is immune from prosecution. See Bunn at 412-413. If the judge determines there is no immunity in the defendant’s actions during the pre-trial phase (and this decision will be by the judge, not a jury, since juries determine guilt or innocence), the defendant may still pursue a justification defense during trial with the jury by using the same evidence, even though these affirmative defenses may be based on the same statutory provisions underlying a prior pre-trial immunity motion. When a defendant raises an affirmative defense and offers evidence in support thereof, the State still has the burden of disproving that defense beyond a reasonable doubt. Id. at 413.