Sunday, January 27, 2013
I write today to explain why I would not request an immunity hearing, if I were representing the defendant in the Trayvon Martin murder case.
The party with the burden of proof always has to go first and present its case before the opposing party has to introduce any evidence. Since the prosecution has the burden of proving guilt beyond a reasonable doubt in all criminal trials, it always presents its case first. In an immunity hearing, however, the defense has the burden of proving self-defense by a preponderance of the evidence. This means that it must go first and present its case before the prosecution has to present any evidence.
As a practical matter, the defendant will have to testify at the immunity hearing and claim self-defense because all of his pretrial statements are inadmissible hearsay. In other words, the defense cannot claim self-defense unless the defendant claims it and he cannot claim it unless he testifies that he killed Trayvon in self-defense.
Given the number of inconsistent and conflicting statements that he has uttered, no matter what he says during the hearing will be in conflict with something he previously stated, as well as the physical and forensic evidence.
He cannot testify unless he submits to cross examination. Therefore, he will be subject to cross examination. The prosecution will be able to confront him with all of the conflicts and inconsistencies in his pretrial statements during cross examination because they are admissions by a party opponent. He will be crucified in a harsh spotlight before a world audience and his lawyers will be helpless to stop the carnage.
And after the defense rests, the prosecution will be able to inflict further damage by introducing physical and forensic evidence to prove each and every lie he told.
After Judge Nelson denies the defense motion for an order immunizing him from criminal and civil liability, the nation and the world will know that the defendant is guilty and the trial will seem like an afterthought with a guilty verdict never in doubt.