Today’s topic will be the husband-wife marital privilege. What is it? What does it cover? How does it apply to Shellie and George Zimmerman?
The husband-wife marital privilege is an evidentiary rule that protects confidential communications between spouses from disclosure to third parties. The purpose of the rule is to encourage open communication between spouses without fear that one spouse may be forced under penalty of law to disclose what the other said.
The privilege does not apply to all communications; it only applies to communications that were intended to be kept confidential.
Not all confidential communications are protected. For example, in Florida there is no privilege:
(a) In a proceeding brought by or on behalf of one spouse against the other spouse.
(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.
(c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.
Open communications between spouses in the presence of other people are not confidential. For example, anything the defendant may have stated to his wife in the presence of another person, such as Mark or Sondra Osterman or Frank Taaffe, regarding his encounter with Trayvon Martin before or after the shooting would not be privileged.
Communications between spouses during recorded jailhouse telephone calls are not privileged when the parties are warned at the beginning of the call that it will be recorded.
I believe an interesting argument can be made, pursuant to FL Stat. 90.504(3)(c), that Shellie Zimmerman can testify about disclosures by her husband regarding the alleged murder since she is a “defendant-spouse.” Even though she is a defendant in a different case, the two are related matters.
Certainly the argument is more powerful regarding the admissibility of any statements that her husband may have made to her about her alleged perjury because it occurred at the defendant’s bond hearing in an effort to conceal substantial assets exceeding $100,000 from the court, including a second passport that the defendant may have been planning to use to flee the jurisdiction to avoid prosecution.
Flight to avoid prosecution is admissible to show consciousness of guilt and, as Judge Lester noted in his order setting bail, the evidence supported an inference that only the fortuitous attachment of an ankle bracelet with a GPS device prior to the defendant’s release from jail may have prevented him from fleeing the United States with a valid passport and more than $100,000 of other people’s money.
Should the fortuitous circumstance that related criminal cases are pending against a husband and a wife under different cause numbers, instead of a single cause number, exclude application of section (3)(c)?
What do you think?
(H/T to Searching Mind for spotlighting this issue in comments this morning)
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I write today to remind everyone that DD is not a critical prosecution witness because they can win this case without her testimony and her alleged lies about her age and whether she went to a hospital, instead of the funeral, probably are not admissible.
She is not a critical prosecution witness because the physical evidence, forensics, location of Trayvon’s body and the spent shell casing, and the defendant’s conflicting and inconsistent statements bury him beneath a mountain of evidence.
Although we will not know until trial, I am anticipating that the defendant’s interlocking phone calls with others before and after he killed Trayvon will eliminate any lingering doubt that anyone might have about his guilt. Even if it does not, I do not believe the prosecution’s case will be in any jeopardy.
BDLR will likely wait to call DD until late in his case after he has put in all of the evidence that he believes he needs to introduce in order to convict the defendant. With everything else in place, her testimony will merely confirm what everyone on the jury already knows. The jury likely will believe her because her testimony will be self-authenticating. That is, even though she had never been to the RTL, everything that she says Trayvon told her will be confirmed by the interlocking phone records of the calls she had with Trayvon, the physical layout of the place and the weather.
Because most of Trayvon’s statements to her are inadmissible hearsay, unless he was relating a present sense impression or excited utterance, which are two exceptions to the hearsay rule, I expect her testimony will be limited to he told her that,
(1) he was afraid of the creepy guy following him in the car;
(2) he ran to get away from him; the creepy guy suddenly showed up on foot; and
(3) he asked someone why he was following him;
Then she heard an older male voice respond, “What are you doing here?”
Then she heard what sounded like physical contact followed by Trayvon shouting, “Get off me,” and the phone went dead. She attempted to call him, but he did not answer.
That’s it. She does not know anything else.
The defendant’s supporters with considerable support from the lame-stream U.S. media and various lawyer-pundits who should know better have been saying things like, “The prosecution’s case is crumbling,” because Witness 8 (DD) lied or committed perjury,
(1) about her age; and
(2) when she claimed that she did not attend Trayvon’s wake or funeral because she was not feeling well and went to a hospital.
The prosecution’s case is not crumbling.
First, even assuming she lied, and I do not believe that she did, she most certainly did not commit perjury because neither of her statements are about matters that are material or important to the outcome of this case. Since materiality is an element that must be proven beyond a reasonable doubt to convict someone of perjury, there is no basis to charge her with that offense.
Second, the two alleged lies do not make it more or less likely that she is an untruthful person since a truthful person may lie about their age or when providing an excuse for not attending a funeral.
The rules of evidence permit Judge Nelson to exercise her discretion in deciding whether to permit the defense to cross examine DD about these two alleged lies.
The relevant rules of evidence are 608(b) and 403.
Evidence Rule 608(b) prohibits evidence of specific instances of the misconduct of a witness for the purpose of attacking her credibility, unless those specific instances of misconduct concern her character for truthfulness or untruthfulness.
(Emphasis supplied)
Evidence Rule 403 provides that even relevant evidence may be excluded if the judge finds that its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
(Emphasis supplied)
I can see Judge Nelson deciding that the slight probative value of the two alleged lies that she is an untruthful person is overwhelmed by their potential prejudice, since the alleged lies have nothing to do with any issues in the case, and her testimony is self-authenticating.
The admissibility of evidence about these two alleged lies probably will be the subject of a motion in limine by the prosecution for an order to prohibit the defense from mentioning them in front of the jury or cross examining her about them.
Even if Judge Nelson denies that motion, the prosecution can minimize the potential damage of that evidence by bringing it out on direct and asking her to tell the jury why she did not tell the truth about those two matters.
The defense would have to be careful cross examining her because the jury might not like it, if they do not treat her in a respectful manner.
When all is said and done by the witnesses and the lawyers, and the jury retires to deliberate on a verdict, I doubt that DD’s credibility will be a matter of any concern or discussion regarding whether the defendant killed Trayvon in self-defense.
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I write today about effectively cross examining expert witnesses, which was one of my specialties.
I could write a book about the subject, and maybe someday I will, but today I am going to focus on unraveling the expert’s hypothetical question.
Briefly, Rule 702 of the rules of evidence defines an expert witness as someone who is qualified by education, training or experience to express an opinion regarding a disputed matter in a legal proceeding.
When a jury needs the assistance of an expert witness to decide a disputed matter, either side may present the testimony of a duly qualified expert witness who may express an opinion regarding the disputed matter, including the answer to the ultimate question in the lawsuit.
The party that calls the expert begins by qualifying her as an expert. This normally involves having her tell the jury about her education, training or experience and publications in professional peer reviewed journals. Most experts have a curriculum vitae or CV, that lists their educational credentials and an up-to-date list of their publications. The CV is admitted into evidence.
The expert then tells the jury what evidence she has examined in the case.
Next comes a hypothetical question in which the expert is asked to assume a set of specific facts and asked if she can form an opinion to a reasonable medical or scientific certainty about the significance of those facts.
The witness will answer, “Yes.”
Next question: “What is your opinion?”
Next comes the rat-a-tat-tat of a nail gun.
One of the most effective ways to cross examine an expert is to attack the validity of the assumptions in the hypothetical question.
Undermine one and the expert’s opinion usually falls apart.
Since assumptions typically consist of assuming that disputed facts are undisputed, in a manner that benefits the party that called the expert, the opposing party cross examining the expert simply asks the expert to assume the contrary view.
Another way to challenge an expert opinion is to introduce an additional assumption into the hypothetical that undermines the conclusion.
Let us take, for example, the issue regarding whether Trayvon or the defendant was on top when the defendant fired the fatal shot.
The undisputed facts are the trajectory of the shot, which was direct from front to back, the intermediate range from which the shot was fired, the nonalignment of the two aligned holes in the sweatshirts with the entry wound and the muzzle of the gun was in contact with the outer sweatshirt when the fatal shot was fired.
The disputed fact is whether Trayvon or the defendant was in the superior position straddling the other.
The defense probably could find an expert who, given those undisputed facts, could testify to a reasonable scientific certainty that the defendant was on the bottom when he fired the fatal shot.
The problem with the hypothetical, however, is that it does not account for the presence of the gun in the defendant’s hand.
According to the defendant’s statement, he pulled the gun out of the holster that he carried inside the waistband of his jeans behind his right hip.
The expert’s opinion falls apart when you add this undisputed fact to the hypothetical because the defendant could not draw the gun and get it into the necessary position to fire the fatal shot.
Note BTW, that one also could conclude to a reasonable scientific certainty from the original set of undisputed facts that the defendant was in the superior position straddling Trayvon.
This is how you shoot down credentialed experts in just a few words.
Lonnie Starr is starring in today’s Featuring feature. Day in and day out, he skins the onion with solid comments that systematically peel back layer after layer of the defendant’s lies destroying his claim of self-defense.
I follow with an explanation of the excited utterance and present sense exceptions to the hearsay rule and a short explanation why the use of doxing and character assassination of Dee Dee constitutes first degree witness tampering, punishable by up to life in prison.
At 8:12 am he wrote the following comment explaining why Dee Dee’s statements are self-authenticating and the defense efforts to access her social media accounts are irrelevant:
The social media accounts of DD are not probative, because she was not physically present in RATL when these events took place, she is only an “ear witness” to what would be hearsay if not for the exceptions to those rules.
As such, I would not allow them to go after her social media material, because it’s only utility is as impeachment material. No amount of impeachment material, that is external to her statements about what she witnessed by ear, can have any fair application. If this witness is to be impeached in any way, shape or form, that impeachment must come from a demonstration that what she is testifying to is either not what occurred or could not have occurred.
This is because, obviously, without having been present and without any knowledge of the paths, roads, houses, their locations and the distances between them, she could not possibly fashion false testimony that could fit the conditions that night, with any precision at all.
MOM needs to climb back into his cave, he’s trying to cover up his own gross stupidity with even more wasteful gross stupidity.
Even if he were to get his hands on her social media materials, and managed to find some kind of impeachment material in them, it would not be allowed in court, because it would not be either relevant or probative. In short, you cannot impeach an account that cannot be falsely fashioned.
Although I think the information in Dee Dee’s social media accounts is discoverable, assuming she has any accounts, I agree with Lonnie’s conclusion that the information is irrelevant and inadmissible.
The defendant, his defense team and his rabidly confused supporters do not seem to understand that information in Dee Dee’s social media accounts, assuming she has any accounts, is unlikely to be admissible at trial.
The rules of evidence do not permit lawyers to attack the credibility of witnesses by throwing mud in their faces to see how much of it sticks. Assuming for the sake of argument that she is everything they claim she is and worse, none of that bad act and bad character evidence will be admissible. It does not matter, for example, if she lied about going to the hospital instead of Trayvon’s funeral. She could have partied naked in a crack house all night long having sex with animals and the defense would not be permitted to mention it.
Whether she was his girlfriend, boyfriend, friend, 5 years old, 100 years old or somewhere in between, is irrelevant.
She could have been a telemarketer trying to sell him a bushel of used rubbers packaged by the Koch brothers and Trayvon nothing more to her than a voice on the phone and she still would be able to testify about the conversation.
How can this be?
Simple.
The relevancy rule and excited-utterance and present-sense-impression exceptions to the hearsay rule permit her to tell the jury what Trayvon told her about his encounter with the creepy man and what he did to get away from him as well as what Trayvon and the creepy man said to each other and what she heard when the phone went dead.
The reason his statements are admissible is that he was describing an exciting event as it was happening and influencing him. Contemporaneous descriptions of exciting events by witnesses involved in and experiencing those events have long been admissible to prove those events happened as described. Indeed, this is well-settled law. If the defense objects, it will get nothing but a stern and withering glance from Judge Nelson as she says, “Objection overruled.”
The jury will assess Trayvon’s credibility regarding his encounter with the creepy man just as it will assess the credibility of the creepy man’s numerous conflicting and inconsistent statements about that encounter. The jury will look at the rest of the evidence, particularly the physical and forensic evidence as well as the testimonies of the various witnesses to the encounter and the shooting.
It doesn’t take a weatherman to tell which way the wind blows.
As Lonnie points out, Dee Dee was not present during the encounter and did not know anything about the neighborhood. She can only tell the jury what Trayvon told her. She would not have known what to lie about because she was not there. If anything, her statement is frustratingly vague and that ironically enhances her credibility in a manner that a more detailed statement tailored to establish each element of the crime charged would not.
The defense is not likely to persuade the jury that Benjamin Crump told her what to say. Matt Gutman’s (ABC News) recording will no doubt verify that. He would not have been invited to be present and record the conversation, if Crump had any funny business in mind. That recording created a great insurance policy.
As a former criminal defense lawyer and officer of the court, I am extremely offended by the efforts to dox, demonize and intimidate Dee Dee. Pure and simple it’s criminal behavior because it is motivated by a desire to keep her from testifying or to destroy her credibility if she does testify.
Witness intimidation via character assassination by false statement and innuendo is not protected speech under the First Amendment.
Since Dee Dee is a prosecution witness in a second degree murder case, those who seek to assassinate her character with false statements and innuendo are committing the crime of first degree witness intimidation.
I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.
The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).
The defendant gave multiple statements to police investigators. Each statement was videotaped.
Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.
There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.
Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.
These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.
The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.
Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.
For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).
Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.
I write today regarding a game within the game. I am specifically referring to trial by ambush despite discovery rules that require the prosecution to basically turn over everything it has to the defense long before trial.
My inspiration to write about this subject comes from a series of questions asked by Diaryofasuccessfulloser, who wanted to know where to find evidence that Trayvon was a peaceful and non-violent person in the discovery that has been released.
You can look but you will not find much.
The discovery rules require the prosecution to identify the witnesses it intends to call and to provide copies of their statements to the defense and to the public.
Those statements do not necessarily include all of the information obtained from those witnesses. Defense counsel have a duty to investigate their cases and that includes tasking an investigator to interview the witnesses or to be present and take notes when the lawyer interviews them. Florida permits the use of depositions under oath in criminal cases.
Interviews and depositions provide an opportunity to obtain information not included in the statements and reports.
The best source of information about Trayvon’s non-violent and peaceful nature is his family and friends like Dee Dee. She described him that way to Benjamin Crump and to Bernie de la Rionda. So did the librarian where he used to study after school. His parents have described him that way publicly.
Note that the defense, which has been trying its case in the court of public opinion, has not produced any evidence at all to support its claim that he was an aggressive martial arts enthusiast who picked fights and bullied others. Obviously his school records contained no information to support that claim or the defense would have shouted it from the tree house.
According to the complaint filed by the security/investigation firm, the investigators did not find out anything useful to the defense about Trayvon. We do not know what they were tasked to do, but given the importance of such evidence to support the defendant’s claim, I suspect they looked for such evidence, but did not find it.
The absence of evidence to support the defense claim might reasonably be considered evidence that he was not an aggressive martial arts enthusiast who picked fights and bullied others.
That absence of evidence is consistent with what we have heard from his family and Dee Dee.
There are other witnesses too. I vaguely recall his former football coach describing him that way, for example.
In other words, you have to read between the lines sometimes because the prosecution is not required to document all of its evidence.
Remember that most witness statements and reports will never be admitted into evidence because most of them are hearsay. The evidence in court will consist of the exhibits admitted into evidence and the testimony of the witnesses under oath
Witness statements and reports rarely contain the whole story. They are like movie trailers and serve as a starting point to find out what the witness knows. Only a fool would assume that they contain all of the relevant information that a witness knows.
The prosecution has no obligation to reduce all of that information to writing and share it with the defense. The prosecution is only obligated to disclose exculpatory evidence to the defense and this evidence is not exculpatory. Evidence that Trayvon was peaceful and non-violent hurts the defense. Therefore, the prosecution has no duty to reveal it to the defense, unless it is in a statement.
I suspect the prosecution has a lot of evidence that has not been recorded or written down anywhere in a report.
Part of the game is to conceal as well as reveal only that which you are required to reveal.
The only way the defense can discover the information not included in the reports is to use an investigator to find it or acquire it during a deposition.
Unfortunately, the defense does not appear to have any investigators or experts to assist the lawyers.
This is one reason why I have been so critical of the defense effort. With the exception of the one report we know about, which they did not pay for, the defense appears to have sacrificed the use of investigators in favor of maintaining and paying for the defendant’s comfort and unnecessary security. In a case where the forensics likely will determine the outcome, the defense also appears to have sacrificed the use of experts for the same two reasons.
With O’Mara potentially indebted to the security/investigation firm for $27,000 and not having been paid a cent for the work he has performed, I can only shake my head in amazement that the priorities in this case are so upside down.
This is what can happen when a lawyer lets a selfish and clueless client run the show.
I wrote Short and Sweet to follow-up on my article yesterday titled, Keep It Simple, Stupid.
The defense in the Trayvon Martin murder case apparently does not have any credible evidence that he was a martial-arts trained aggressive bully who assaulted people. I say “apparently” because I am certain we would have heard about it, given the defense effort to try its case in the court of public where defense counsel can testify with impunity, rumor and innuendo are admissible, and the prosecution cannot cross examine or introduce any evidence. Since evidence that Trayvon was a martial-arts trained aggressive bully who assaulted people would not be difficult to find, if it existed, I believe we can reasonably conclude that such evidence does not exist.
The one thing we do know from reviewing the complaint filed by the security/investigation company against the defendant, his wife and the defendant’s attorney is that its investigators found nothing useful for the defense and could not even confirm a rumor that a client’s daughter could have purchased marijuana from Trayvon.
Instead, the prosecution apparently has a mountain of evidence that Trayvon was peaceful and non-violent.
This evidence is not admissible unless the defense opens the door by claiming that Trayvon was the aggressor and initiated the confrontation by sucker-punching the defendant in the nose, knocking him to the ground.
Difficult to imagine the defense will not make this claim during its opening statement, since this is an important and necessary part of the defendant’s self-defense claim that he provided to the police and to a national audience during the Hannity interview. Therefore, I think we can reasonably assume that the defense will open the door during its opening statement and the prosecution will be introducing evidence of Trayvon’s non-violent and peaceful disposition during its case-in-chief.
On the other side of the coin, the defendant has shown that he has a violent temper and a willingness to assault others when he loses his temper. That uncharged-misconduct evidence is not admissible under rule 404(b), unless the defense opens the door by claiming he is a non-violent and peaceful person or a person with good character.
The defense will make a bad mistake, if it opens this door, but I think they will do it.
Why?
Because the defendant still appears to be driving the bus and he is as clueless as clueless gets.
Keep it simple, stupid or KISS is a fundamental rule of trial practice. It is so important that I am seriously considering adding it as a new Fourteenth Commandment to the Thirteen Commandments that I wrote about on September 25, 2012.
I credit Sheila Dunn for inspiring me to write about this rule today. She shocked me yesterday when she criticized Piranha Mom’s recent article as pro-Zimmerman. She shocked me again when she said the blog was turning pro-Zimmerman. Quite a few of you were similarly shocked and most of the responses, including my own, fell into the are-you-nuts category.
I reconsidered and decided that probably she was warning us that we are violating the KISS rule by entertaining theories that unnecessarily complicate and weaken the prosecution’s case. I responded a second time stating that the prosecution is not likely to attempt to prove something that it cannot prove. That is, we are not the prosecution team and we are not subject to the KISS rule. Specifically, Piranha Mom was not asserting that her theory was true. She was discussing the theory and the evidence that supports it.
It may be true and it may not be true. We may find out that it’s true or we may not. Right or wrong the exercise is useful because it forces us to sharpen our critical thinking skills by examining the evidence again from another perspective.
When we engage in a theoretical exercise, we also have to consider the rules of evidence. We need to consider what evidence is admissible and what evidence is inadmissible. In this situation, we need to consider whether and to what extent is uncharged misconduct admissible in a criminal trial.
Author’s note: I refer to the Federal Rules of Evidence for the sake of convenience because most states have adopted them verbatim, or with only slight changes. They have even retained the same numbering system for ease of reference.
In criminal trials, prosecutors often seek to introduce evidence that a defendant has committed misconduct other than that charged in the information or indictment.
Why?
Answer: Since prosecutors are required to overcome the presumption of innocence by proof beyond a reasonable doubt, they fear they will not be able to convict a defendant without relying on uncharged misconduct evidence, especially in weak cases.
Rule 401 of the Federal Rules of Evidence (FRE 401) provides:
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
FRE 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
No one disputes that, under some circumstances, such evidence is relevant, for example, to show a defendant’s state of mind where his state of mind is an issue in a case.
Let us say that a 31-year-old defendant is charged with statutory rape in a hypothetical jurisdiction where the crime prohibits a person over the age of 25 having sex with a person under the age of 16. He claims that he did not know and had no reason to know that she was underage because she told him she was 19 and she appeared to be that old. Thus, the issue is whether the defendant knew she was under the age of 16 .
Let us further say that the prosecutor can prove that the alleged victim met the defendant when she approached him in a parking lot outside a convenience store and asked him to buy her a pack of cigarettes because she was not old enough to buy them. He agreed, and after he gave her the cigarettes, they spent some time together that ended several hours later when her father discovered them in flagrante delicto while parked outside the family house. A person must be 16 in this jurisdiction to buy cigarettes legally and it is a misdemeanor to purchase cigarettes for a person under the age of 16.
Should the prosecutor be permitted to introduce evidence about the cigarette purchase?
Answer: Yes, the incident is relevant under FRE 402 because it establishes that he knew she was under the age of 16, and relevant evidence is admissible under FRE 401.
What about other instances of uncharged misconduct? Are there other rules that apply?
Answer: Yes, FRE 403 and 404.
FRE 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Would the cigarette purchase evidence be inadmissible under FRE 403?
Answer: No, because the probative value of the evidence to prove that he knew she was under the age of 16 is high and the danger of unfair prejudice is low. There is little danger that the evidence will confuse the issues, mislead the jury, or waste time.
Note that any analysis under FRE 403 requires a weighing of probative value versus prejudicial effect.
FRE 404 provides:
(a.) Character evidence generally.
Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1.) Character of accused – In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.
(2.) Character of alleged victim – In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
(3.) Character of witness – Evidence of the character of a witness, as provided in rules 607, 608, and 609.
(b.) Other crimes, wrongs, or acts.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
(emphasis supplied)
FRE 404(a) states the general rule, which prohibits the use of character evidence (e.g., the defendant is a liar) to prove that the defendant lied on a particular occasion relevant to the case. I believe this rule makes sense because no one lies all the time with the possible exception of the obamanable one, of course. Such evidence would invite the jury to basically presume the defendant lied at the time in question, rather than basing its decision on the evidence, and that would violate the presumption of innocence.
FRE 404(b) begins with a general prohibition against the use of uncharged misconduct. The second sentence sets forth the exceptions.
Uncharged misconduct is admissible to prove:
1. motive,
2. opportunity,
3. intent,
4. preparation,
5. plan
6. knowledge,
7. identity, or
8. absence of mistake or accident.
In our hypothetical, the defendant’s uncharged misconduct (i.e., purchasing cigarettes for the underage girl) would be admissible to show knowledge (i.e., that he knew she was less than 16-years-old) and absence of mistake (i.e., that he did not mistake her to be 16-years-old, or older).
As before, the judge would have to balance the probative value of the evidence against its potential prejudicial effect pursuant to FRE 403, but we all know how that will turn out.
Whether any one or more of these factors will be present in any given case depends on what the prosecution must prove to convict a defendant and whether the prosecutor knows about and can prove prior uncharged misconduct.
Note: FRE 404 applies when a prosecutor seeks to introduce uncharged misconduct evidence during its case-in-chief (i.e., when the prosecution is presenting its case). FRE 609, which governs the admissibility of a defendant’s prior conviction, applies during the defense case after the prosecution rests, if the defendant testifies (i.e., if the defendant testifies, the prosecution gets to introduce the prior conviction to impeach or undermine the defendant’s credibility. The prosecution cannot introduce the prior conviction, if the defendant does not testify). Prior felony convictions are admissible, if less than 10-years-old, subject to the judge weighing the probative value versus the potential prejudice to the defendant, unless the crime involves dishonesty or false statement. Even misdemeanors that involve dishonesty or false statement are admissible under this rule.
Some examples:
1. Prior drug use should be excluded in a drug case since it merely shows propensity to use drugs, which has low probative value and high prejudicial value and it does not fall into any of the 8 exceptions listed in FRE 404(b).
2. A prior felony drug conviction should not be admissible as impeachment, if the defendant testifies, because its potential prejudicial value outweigh its probative value, However, some jurisdictions permit it on the ground that a drug conviction involves dishonesty or false statement.
3. So-called signature crimes are admissible under FRE 404(b) to prove identity of the perpetrator.
Conclusion: The admissibility of uncharged misconduct evidence is one of the most complicated and litigious issues in criminal law. This essay is a brief overview of the subject to explain what it is about in laymen’s terms. Should you or someone you know be involved in a case in which this issue comes up, educate yourself with this article and use it to intelligently discuss the issue with your lawyer. As always, rely on your lawyer. If you do not trust your lawyer, hire another one.
After reviewing and considering the remarks by Zhickel, Grbsb, Jun and Whonoze (AKA: Treeslaw), I am going to put on my judge’s robe and issue the following ruling:
I find that neither photograph was altered and, therefore, both photographs are authentic and admissible at trial.
This is not a bad result for the State, as you will soon see.
In effect and by design, because I set it up this way, we have had our own internet version of a battle-of-experts pretrial hearing regarding the admissibility of the two digital photographs taken at the scene of the homicide by Officer Wagner (face) and the neighbor named Jon (back of the head).
The legal issue was whether the photos were authentic (i.e., originals or authentic reproductions) or fraudulent reproductions (i.e., altered).
Zhickle (nice to see your fonts again) and Grbsb in effect testified as experts for the defense while Jun and Whonoze testified as experts for the State.
There has to be a winner and on balance I decided for the defense because giving them what they want on this issue does not hurt the State’s case and I did not want to give them an appellate issue that might result in reversing the defendant’s conviction.
In other words, I am thinking strategically, or big picture, rather than focusing on the relative merits of each argument.
I predict Judge Nelson will reach the same conclusion for the same reason.
Just as I would do, I predict she will permit the prosecution to use their experts to acknowledge the distortions in the photos and explain why they are present, just as our four experts did. Such factors will go to the weight, or value of the evidence, rather than its admissibility.
The jury will decide how much weight to give to those photos. The greater the distortion, the less weight they are likely to be given.
The photos taken at the station house also will be admitted. Those photos together with expert testimony from one or more trauma surgeons should establish to a reasonable medical certainty that the defendant’s injuries, including his claimed but unverified “broken nose” were minor and inconsistent with the defendant’s narrative claiming how he got them.
The absence of any detectable trace of blood on the cuffs and lower sleeves of Trayvon Martin’s two sweatshirts and the absence of the defendant’s DNA in Trayvon Martin’s fingernail clippings also do not support the defendant’s narrative, as one would expect detectable amounts of the defendant’s blood and DNA in both areas. That is, despite the rain, detectable amounts of blood and DNA would have been present, if the defendant’s narrative were true.
In addition, the pattern of blood flow as depicted in the photo taken at the scene, before an EMT cleaned his head, shows blood flowing in a downward direction toward and curling around the lower end of his ears, which does not support the defendant’s claim that he was lying on his back. Instead, it shows that his head was upright and leaning forward, which is consistent with the defendant straddling Trayvon Martin, as several witnesses described him doing (Selma and the teacher).
These photos do not help the defense case. Considered together with the physical evidence, they appear to not only rule out the possibility that the defendant was reasonably in fear of imminent death or serious bodily injury, they also appear to rule out Trayvon Martin as the person who caused those wounds.
Given some minor scratches to his face, it appears more likely that the defendant ran into a tree branch in the dark bumping his nose and fell down bumping his head on some object, possibly a sprinkler head or cover, or possibly the edge of the cement sidewalk or a sign. Whatever caused them, it was not likely to have been Trayvon because there is no evidence that Trayvon Martin hit the defendant.
Even if he did hit him, I think the jury will find that he was legally justified to do so in self-defense because the defendant followed him first in his vehicle and then on foot into a dark area where he confronted and attempted to detain him without ever identifying himself, contrary to the police dispatcher’s admonition and the Neighborhood Watch rules.
I hope this exercise was helpful to a better understanding of hearings on motions in limine, battles between experts and the strategic considerations that inform judicial thinking.
Thanks to all of you for participating and please give me some feedback regarding whether this worked for you as a learning experience.
We have reason to believe that the digital color photo of the defendant’s face, publicized by the defense last week and exhibited below, was altered to create the appearance of an injury to his nose. We also know from the discovery provided by the State of Florida that SPD Officer Wagner, the man who took the photograph of the defendant sitting sideways in the back seat of an SPD cruiser with the back door open and his feet on the ground, deleted his original photograph from his iPhone after he downloaded a copy to his laptop. He claims to have forgotten that he had the photograph for about three weeks before he finally remembered it and gave the copy to SPD Investigator Serino. We saw this photo in the first evidence dump last May when the State released a black and white version produced by a copy machine.
We also have reason to believe that the digital color photo exhibited below of the back of the defendant’s head taken by a neighbor moments before the first officer arrived at the scene of the shooting also has been altered to add fake blood trails to increase the significance of two minor capillary-type injuries to the back of his head.
The defense claims that these photographs prove that Trayvon Martin attacked the defendant at the T intersection without provocation as he was walking back to his truck, broke his nose stunning and knocking him to the ground, straddled him and rained down vicious punch after vicious punch to his face MMA-style, and then grabbed the sides of his head and savagely bashed the back of it against a concrete sidewalk until he thought his head would explode. Claiming that the defendant was at death’s door, the defense argues that he was reasonably in imminent fear of death or serious bodily injury when he killed Trayvon Martin.
I do not agree.
Compare these photographs to the high definition close-up photographs taken at the police station a few hours after the shooting and draw your own conclusions.
Despite legitimate doubts regarding their provenance defense attorney, Mark O’Mara, flashed the two photographs in front of television cameras as he casually strolled to the podium to address the court at a motions hearing on Tuesday, December 11, 2012. Since he claims they establish the defendant’s innocence, I believe we can reasonably conclude that the defense will attempt to introduce those two photographs at the trial.
QUESTION: Are these photographs admissible at trial?
ANSWER: No, not if they have been altered.
ANALYSIS:
The defense wants the photographs admitted to support the defendant’s claim that he killed Trayvon Martin in self-defense. Specifically, that they accurately depict physical injuries inflicted by Trayvon Martin that caused the defendant to reasonably fear imminent death or serious bodily injury, such that he was legally justified in using deadly force against Martin to defend himself.
Assuming each photograph accurately depicts the defendant’s physical injuries when the photographs were taken, I believe Judge Nelson will admit them as relevant and probative evidence of the nature and extent of his physical injuries and whether he reasonably feared imminent death or serious bodily injury when he used deadly force.
Note the big assumption at the beginning of that sentence, however, and therein lies the rub.
Let us begin our analysis by taking a look at the best evidence rule. The purpose of this rule is to assure that only authentic documents and photographs are admitted into evidence.
This rule provides that an original photograph is generally required when proving the contents of a photograph, unless it is unavailable through no fault of the party offering a copy of the original. If that condition is satisfied, a copy of the original may be admitted in its place if the copy is an authentic and accurate reproduction of the original. See Evidence Rule 1003.
The original photograph of the defendant’s face is not available because Officer Wagner deleted it from his iPhone. Since he was not part of the defense team, the copy is admissible, provided it is an authentic and accurate reproduction. I imagine that the prosecution will argue that it is not because it can prove that the photograph was altered from its original state.
Look for the State to move in limine to exclude the photograph from evidence on the ground that it is not an accurate and authentic copy of the lost original and that, in any event, it has been altered and would mislead the jury, if admitted.
The original photograph of the back of the defendant’s head may be available, but like the photograph of his face, it appears to have been altered. Therefore, I expect the State will also move in limine to exclude this photograph from evidence.
The outcome of the motions will depend on whether the State’s experts can persuade Judge Nelson that the photographs have been altered and do not accurately depict the defendant’s appearance when they were taken.
If she grants the prosecution motion regarding both photographs, which is what I expect her to do, then the defense will be prohibited from mentioning the photos and the jury will never see them.
Posted by masonblue 
