Witness 8′s (Dee Dee) alleged lies do not matter

March 7, 2013

Thursday, March 7, 2013

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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615 Comments | Bernie de la Rionda, Crime, Dee Dee, Elements of a Crime, Evidence, Exceptions, Excited Utterance, fogen, George Zimmerman, Hearsay Rule, Judge Deborah Nelson, Murder 2, Perjury, Present Sense Impression, Reputation for Veracity, Self-defense, Trayvon Martin | Tagged: , , , | Permalink
Posted by masonblue

Featuring: Lonnie Starr Explains Why Dee Dee is Credible and I Explain Witness Tampering

February 7, 2013

Thursday, February 7, 2013

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.

Intimidating a witness to a murder in Florida is first degree witness tampering punishable by a sentence of imprisonment of up to life in prison.

I sincerely hope that anyone who attempts to intimidate Dee Dee is prosecuted, convicted and sentenced to a lengthy prison term.

They deserve it.

493 Comments | Crime, Dee Dee, Evidence, Excited Utterance, Featuring, George Zimmerman, Hearsay Rule, Lonnie Starr, Present Sense Impression, Witness Tampering | Permalink
Posted by masonblue

The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

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.

92 Comments | Admissions by a Party Opponent, Bernie de la Rionda, Evidence, Fifth Amendment Right to Remain Silent, George Zimmerman, Hearsay Rule, Sixth Amendment Right to Counsel | Permalink
Posted by masonblue

Zimmerman: Dee Dee, Show Don’t Tell and The Importance of Listening

October 21, 2012

Whonoze asked the following question that I believe warrants a lengthy response, as it touches on a number of important issues about this case and lawyers in general.

He said,

Prof. L.:

If you were Zimmerman’s attorney, how would you handle the segment of DeeDee’s interview with BdlR in which, as I put it, “she offers to perjure herself.” Please review that segment of the recording. At ~15:51 into the interview, BdlR asks DeeDee if Trayvon said the man was coming to hit him just before the confrontation.

DeeDee: [very quietly] Yeah. You could say that.
SA d l R: I don’t want you to guess. Did he ever say that?
DeeDee: [after long pause, still quietly] How he said it, he just…
SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…
DeeDee: The man, he got problems. Like he crazy.
SA d l R: Trayvon told you that?
DeeDee: Yeah the man lookin crazy. Looking at him crazy.
SA d l R: When did Trayvon tell you that?
DeeDee: …He was walkin, before he say he was gonna run….
SA d l R: He said the guy looks what?
DeeDee: Crazy. And creepy.

Thus, despite BdlR’s admonition, DeeDee never says anything amounting to “No, Trayvon did did not say that,” but instead goes back to an earlier point in the conversation to bolster her assertion that Trayvon was afraid of Zimmerman.

Now, I do not care how anywhere here interprets this passage, or how they think it speaks to DeeDee’s overall veracity. I know that (and I mostly agree). But we are not going to be sitting on a jury in Seminole County FL, and we are not defense attorneys with an ethical obligation to present a zealous defense of George Zimmerman.

So, first, I would like an experienced defense attorney to role-play, evaluate this part of DeeDee’s statement to BdlR from a defense point of view, and imagine how you might use it at trial (if at all.)

Second, role playing a prosecutor, how would you prep DeeDee in anticipation of any strategies you think the defense might take?

My Answer:

I honestly do not believe Dee Dee offered to perjure herself in that exchange.

This appears to be a classic example of a witness having formed an opinion of what was happening in those final moments before the phone went dead. She’s struggling with attempting to differentiate between her opinion and what she actually heard Trayvon say or not say.

Thus, when “BDLR asks her if Trayvon said the man was coming to hit him just before the confrontation,” she answers

DeeDee: [very quietly] Yeah. You could say that.

BDLR picks up on her apparent uncertainty and says,

“I don’t want you to guess. Did he ever say that?”

She resists being pinned down to a “yes” or “no” answer because her opinion is based on more than what Trayvon said or did not say in those final moments.

For example, she knows Trayvon is a non-violent person who would never pick a fight with anyone and he had been expressing fear and describing strange, creepy and aggressive behavior to explain why he felt that way. She’s reviewing all of that preparing to tell him why she believes all of it can be summarized and expressed as a “Yes” answer to his question. In other words, she wants to supply context because context, rather than what he actually said or did not say in that final moment before the line went dead, answers the question everyone is asking.

She says,

“DeeDee: [after long pause, still quietly] How he said it, he just…

BDLR, who is not warm and fuzzy and lacks patience and an ability to listen, doesn’t “hear” what she is telling him. He interrupts.

“SA d l R: [interrupting] No, no. Do you understand? Did he say that or not? If he didn’t, that’s alright…”

Now, she realizes he doesn’t get it, so she tries to summarize it all by saying the man was crazy. She says,

“DeeDee: The man, he got problems. Like he crazy.”

BDLR is basically a bull in a china shop and he needs to develop some people skills.

Lawyers have an expression for context. We call it “totality of the circumstances.”

Story tellers have a rule for telling stories that they call “Show, don’t tell.”

Someone with some patience and listening skills needs to spend some time with her and tease out all of the specifics that she was attempting to identify and sort out before BDLR started pressuring her for a “yes” or “no” answer.

When she testifies, he needs to ask her to relate those specifics to the jury and leave out her opinion. What the hell does he expect her to say, when she wasn’t actually there and can only rely on what Trayvon told her and who she knew him to be?

Most of what Trayvon said to her, is admissible hearsay pursuant to the excited-utterance and present-sense-impression exceptions to the hearsay rule The rest is admissible non-hearsay because it will be offered to show his mental state, as opposed to being offered to prove the truth of the matter asserted in the statement.

BDLR needs to let her show, not tell.

When the defense inevitably attempts to pin her down on cross with the “yes” or “no” answer that BDLR asked, the jury will already have figured out what happened from the context that she supplied by showing rather than telling.

Her denial that Trayvon told her Zimmerman attacked him immediately before the line went dead becomes irrelevant because the jury, everyone else in the courtroom, and the world watching on TV will know that Trayvon did not have an opportunity to say anything when Zimmerman attacked him.

I used to spend a lot of time listening before I decided to do anything. It’s a good practice to develop and I do not believe very many lawyers have developed that skill.

BDLR seriously needs to spend some time working on it because he can be a hot mess without it.

191 Comments | cross examination, Dee Dee, Direct Examination, Don't Tell, Evidence, Exceptions, Excited Utterance, George Zimmerman, Hearsay Rule, Importance of Listening, Present Sense Impression, Trayvon Martin | Tagged: , , , , | Permalink
Posted by masonblue

Zimmerman: Lawyers Lawyers Everywhere — Important Hearing Today at 1:30 pm EDT

October 19, 2012

Lawyers for prosecution, defense and various news media organizations will be in court this afternoon before Seminole County Circuit Court Judge Debra Nelson to argue about various discovery related issues in the Zimmerman case. This should be interesting, so you may want to pay attention.

The always reliable and accurate Frances Robles of the Miami Herald has the breakdown:

Assistant State Attorney Bernie de la Rionda filed papers Thursday in Seminole County Circuit Court asking a judge to muzzle defense attorney Mark O’Mara, whom the prosecutor accuses of taking to the Internet to try his case in the media.

“Unless defense counsel stops talking to the media about the case, in person or by use of defendant’s website, it will (be) more difficult to find jurors who have not been influenced by the media accounts of the case,” de la Rionda said. ” … An impartial jury could never be seated.”

De la Rionda asked Circuit Judge Debra Nelson to issue a gag order, which would silence the defense, prosecutors, law enforcement and any of the lawyers’ employees. If the judge agrees, lawyers and investigators would not be allowed to make any statements outside the courtroom about the case, evidence, credibility of witnesses or possible sentences. If the judge allows it, they would even be kept from opining about Zimmerman’s guilt or innocence.

I am not surprised by the State’s motion. The defense has been trying its case in the Court of Public Opinion for months now and the prosecution has at long last run out of patience.

Of course, the prosecution has benefited more than the defense from this strategy. After all, who can forget George Zimmerman’s appearance on the Sean Hannity Show. His smirks, denial of regret, and shifting of responsibility for Trayvon Martin’s death onto God Almighty Himself has to be one of the greatest moments in network television history for this still young second decade.

Although there may still be more gold to be mined in the proverbial “them thar hills,” I think the prosecution comprehends the notion of diminishing returns and wants to cash-in its winnings and move on to other pleasantries of a somewhat more formal nature.

The defense and media lawyers will be objecting to the motion and I do not expect Judge Nelson will seriously consider granting it. Florida’s Sunshine Law is an impressive barrier to a gag order. I predict she will deliver a sternly worded rebuke to defense counsel and we shall see what we shall see.

Judge Nelson also will be hearing argument concerning the defense request to subpoena Trayvon Martin’s middle school and high school records. The State objects to the request on the grounds that the information in the records, whether good or bad, is protected from disclosure by privacy statutes and it would be irrelevant and inadmissible at trial. Prosecutor Bernie de la Rionda called it a “fishing expedition.”

As I have said before, I believe the rules of evidence permit the defense to introduce evidence of a pertinent character trait in support of Zimmerman’s claim that Martin was the aggressor. For example, if Trayvon Martin was known to be an aggressive bully who started fights, the defense would be permitted to bring that out at trial. Specific acts of misconduct would not be admissible, however. The defense would be limited to introducing the evidence as a character trait. Assuming such evidence exists, which I doubt, it might be in the school records. Therefore, I believe the defense has a legitimate reason to want to review the records.

The problem is that the defense may post Martin’s records on its website, regardless whether they contain any reference to misconduct of any kind, whether admissible or not. The State already did that with George Zimmerman’s school records and has apologized for doing so, claiming it was a clerical mistake. Now it seeks to prevent the defense from administering a dose of what’s good for the goose is good for the gander.

There is a solution to this sort of problem and I have previously recommended it. It’s called in camera review. No, it does not involve a camera. In camera review is a legal term that means in chambers. That is, the school records would be filed under seal and Judge Nelson would review them in her chambers and decide whether they contain evidence the defense has a right to review. She discloses it to both sides, if they do. Presumably, she also would order both sides not to publicize the records and might even threaten to hold them in contempt of court, if they were to violate the order.

As I said, I doubt the records contain the information that the defense has a legitimate reason to seek, so this dispute will likely be more like a proverbial tempest in a teapot. If there is any substance to it, there is a solution to deal with the records and protect privacy that has worked in the past.

The State also wants Judge Nelson to order the defense to file its requests for subpoenas in the future under seal so that it cannot publicize them on its website before submitting them for the court’s approval. This argument is part of the prosecution’s strategy to stop the defense from trying its case in the Court of Public Opinion.

This is another issue that Judge Nelson can handle with a stern warning and threat to use her contempt powers. I predict she will do so rather than establishing a special rule for O’Mara, as opposed to all other defense counsel, when seeking court approval for subpoenas.

The prosecution also is seeking George Zimmerman’s medical records at the clinic where he sought a permission-to-return-to-work authorization the day after the shooting. The defense objects on privacy grounds. I think the defense likely waived doctor-patient privilege and privacy concerns when it released a portion of his records and has intimated that his ADHD condition might explain some of his inconsistencies.

Finally, there is an interesting issue about the discoverability of Trayvon Martin’s social media accounts (Facebook and Twitter). A lawyer representing Facebook has refused to comply with the subpoena.

Once again, here’s Frances Robles,

On Monday, Facebook lawyers sent a letter to O’Mara vowing to fight the subpoena. Martin’s social-media account, Facebook attorney Furqan Mohammed said, is not only irrelevant to the case, but by law cannot be released. Mohammed said federal law protects the account information, and added that arguing the issue would have to be done in a California court.

“We think the attorneys for Facebook are essentially saying the same thing we have been saying all along: Trayvon’s Facebook and social media are completely irrelevant,” said Benjamin Crump, an attorney for Martin’s family. “All of these issues are distractions that take the focus off George Zimmerman.”

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558 Comments | Blaming the Victim as a Defense Strategy, Character, Character Assassination, Defense Strategy, Discovery, Exceptions, Gag Orders, George Zimmerman, Hearsay Rule, In Camera Review, Statement for Purposes of Medical Diagnosis or Treatment, Trayvon Martin | Tagged: , , , , , , , , , , | Permalink
Posted by masonblue

Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.

798 Comments | Admissions by a Party Opponent, Closing Argument, Evidence, Exceptions, Excited Utterance, George Zimmerman, Hearsay Rule, Jury Instructions, Opening Statement, Present Sense Impression, Self-Defense (SYG) FL, Statement for Purposes of Medical Diagnosis or Treatment | Tagged: , , , , , , , , , | Permalink
Posted by masonblue

Zimmerman: Dee Dee’s Testimony Regarding Trayvon Martin’s Fear of Zimmerman is Admissible

September 12, 2012

Dennis recently asked the following question in a comment to my post recommending the appointment of a special master to screen discovery.

You asked:

“I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.”

My Answer:

“Most of the relevant things Trayvon said to DeeDee should be admissible under the present sense impression and excited utterance exceptions to the hearsay rule because he was describing an emotionally distressing event to her while under the influence of the event. The rest should come in as non-hearsay since it will not be offered to prove the truth of the matter asserted in the statement. Instead, it will be offered to show his state of mind or some other factor. Should not be too difficult for a good trial lawyer to navigate through the hearsay rule in that situation.”

Dee Dee is a potentially devastating witness for the prosecution because she was listening to Trayvon’s narrative description of Zimmerman’s menacing behavior and his own fearful reaction to it. She also puts the lie to Zimmerman’s skipping psycho-gangsta who materializes out of the darkness and attempts to kill Zimmerman with his bare hands while uttering dated B-movie dialog.

I do not believe her testimony is necessary to prove Zimmerman’s guilt because the forensics and his own conflicting and inconsistent stories should be sufficient to accomplish that. Nevertheless, she adds something important. She humanizes him and she serves as his voice from beyond the grave. Because of this, Zimmerman’s mad dog supporters have assassinated her character with extraordinary relish.

I am sure most of you have read some of their accusations, if not all of them, and shaken your heads in disgust at their tactics. I did and ever since they attempted to drown my voice in a tsunami of lies, I have assumed everything they say about everyone who is not a Zimmerman supporter is a lie. I have been ignoring them and will continue to ignore them because they are a cancer on this case. Therefore, as with the Zimmerman principle, I assume everything they said about Dee Dee is or anyone else in this case is a lie, unless it is corroborated by independent credible evidence.

At first glance, the hearsay rule would appear to exclude everything Trayvon said to Dee Dee. However, there are three reasons why it does not.

(1) A statement by Trayvon to Dee Dee is not hearsay unless it is offered to prove the truth of the matter asserted in the statement.

For example, if Trayvon said, I ran away from the creepy man following me. the statement would be hearsay, if offered to prove that he ran away from the creepy man following him, but it would not be hearsay, if it were offered to prove Trayvon was afraid of Zimmerman. See Rule 801(c).

(2) Even if a statement is offered to prove the truth of the matter asserted in the statement, for example that he ran away from the creepy man following him, it’s admissible pursuant to the present-sense-impression exception to the hearsay rule since it’s “a statement describing or explaining an event or condition while the declarant [Trayvon] was perceiving the event or condition, or immediately thereafter.” See Rule 803(1).

(3) That statement and others like it also would be admissible to prove the truth of the matter asserted in the statement pursuant to the excited utterance exception to the hearsay rule since it’s “a statement relating to a startling event or condition made while the declarant [Trayvon] was under the stress of excitement caused by the event or condition.” See Rule Rule 803(2).

FYI: Trayvon’s statements to Dee Dee would not be admissible pursuant to Rule 804(2) as statements made under belief of impending death unless he believed his “death was imminent.” I do not doubt he believed that at some point but probably not until after he dropped the phone.

The usual manner lawyers and trial courts follow in deciding whether reasonably foreseeable and important statements will be admissible at trial, such as Dee Dee’s testimony regarding what Trayvon said to her during their phone conversations, is to bring them up via a defense motion in limine (i.e., at the beginning) before trial to exclude them. Both sides would brief the issue and argue it at a hearing outside the presence of the jury and the judge would decide whether to grant or deny the motion.

For the reasons I have stated, I believe the judge will permit the prosecution to present Trayvon’s statements to Dee Dee describing Zimmerman stalking him. Those statements will be admissible at the immunity hearing and the jury trial in support of the prosecution’s claim that Zimmerman was the aggressor.

In Mixon v. State 59 So.2d 38 (Fla. 1952), for example, as our own Boar_d_Laze mentioned, the Florida Supreme Court affirmed the defendant’s conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

“The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant’s blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)”

I expect the prosecution will argue that it does not matter who threw the first punch because Zimmerman provoked the confrontation by pursuing Martin in a menacing manner after dark in the rain in a vehicle and then on foot without ever identifying himself. Martin had a right to defend himself against that aggression and, if he ever hit Zimmerman, he did so lawfully. Zimmerman, of course, was not justified in using deadly force.

As I have said many times, I believe George Zimmerman will be found guilty of murder in the second degree.

193 Comments | Character Assassination, Crime, Defense Strategy, Evidence, Exceptions, Excited Utterance, George Zimmerman, Hearsay Rule, Murder 2, Present Sense Impression, Self-defense, Stand Your Ground, Trayvon Martin | Permalink
Posted by masonblue

Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.

479 Comments | Admissions by a Party Opponent, Crime, cross examination, Defense Strategy, Evidence, Fifth Amendment Right to Remain Silent, George Zimmerman, Hearsay Rule, Impeachment by Prior Inconsistent Statement, Murder 1, Self-defense, Stand Your Ground, Trayvon Martin | Permalink
Posted by masonblue

Zimmerman: A Spectacular Fail!

July 19, 2012

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)

142 Comments | Admissions by a Party Opponent, Crime, George Zimmerman, Hearsay Rule, Ineffective Assistance of Counsel, Murder 2, Playing the Race Card as a Defense Strategy, Representing the Difficult Client, Sixth Amendment Right to Counsel, Trayvon Martin | Tagged: , , , , , | Permalink
Posted by masonblue

The Court Should Deny George Zimmerman’s Motion for Bail

July 4, 2012

CherokeeNative posted a comment asking me whether Zimmerman’s statements to police and others will be admissible during the trial.

CherokeeNative said the prosecutor mentioned in court recently that the defense will not be permitted at trial to introduce any of Zimmerman’s statements to police and others. Instead, Zimmerman will have to take the stand and testify, if he wants to present his defense.

I did not watch the hearing, but I imagine the prosecutor was expressing some understandable frustration that O’Mara has been trying his case during a bail hearing, instead of specifically explaining why Zimmerman should be permitted to secure his release by posting another bond after conspiring with his wife to materially deceive the court by claiming indigency when they knew he had received approximately $150,000 donated to his PayPal account at his internet site. The prosecutor wants to cross examine Zimmerman about about all of his coded machinations to, in essence, play a shell game with the court to hide the money. No doubt he’s also tired of O’Mara’s constant repetition of Zimmerman’s statements to police and his claims that Zimmerman’s injuries establish the truth of those statements.

He no doubt knows more than we know and we know that Zimmerman lied. Therefore, I can understand his frustration. Nevertheless, he will get his chance, so he will have to be patient.

Okay, put on your waders because we are about to trek through a muddy swamp called the hearsay rule.

First, every oral or written assertion, including non-verbal conduct, if intended as an assertion, that George Zimmerman made outside the courtroom regarding what happened in this case is hearsay, if offered by the defense at a hearing or during the trial to prove that whatever he asserted is true.

Why? Because hearsay is defined in evidence rule 801 as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Second, hearsay is not admissible, unless pursuant to another evidentiary rule or exception.

The effect of these rules means that a defendant in a criminal case cannot introduce at a hearing or at trial a prior statement that he made, if he offers the statement to prove what he asserted in the statement.

Example: A detective is testifying in a bank robbery trial and the defense attorney asks, “My client told you that he was at work that day and did not rob the bank, didn’t he?”

The question is improper because it’s being offered by the defense to prove that the defendant did not rob the bank.

What happens, however, if the prosecutor seeks to offer the statement because it can prove the defendant was not at work as he claimed?

Answer: The defendant’s statement is admissible because it’s an admission by the party opponent, who is the defendant in this hypothetical. See evidence rule 801(d)(2).

The purpose of the admission-by-a-party-opponent rule is to permit a party to introduce statements by the opposing party. To simplify that process, rule 801(d)(2) exempts such statements from the hearsay rule.

Bottom Line: None of Zimmerman’s statements to the police will be admissible at his trial, unless the prosecution offers them. Do not expect the prosecution to do that, unless it is offering them into evidence to prove that he lied.

Note that Zimmerman also made statements to various medical people.

Question: Are those statements admissible?

Answer: Yes, under evidence rule 803(4), provided his statements were made “for purposes of a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment.”

Note that we are likely to see issues arise regarding the admissibility of any statement Zimmerman made to a medical person, if the statement contains an assertion about what happened during the confrontation and struggle (i.e., who did what to whom). That portion of his statement will fall outside the boundary of the medical-diagnosis exception to the hearsay rule, if it is not “reasonably pertinent to diagnosis or treatment.”

The purpose of this exception to the hearsay rule is to admit statements that are elicited in response to questions asked by medical personnel to diagnose and treat an injury or illness. The patient/defendant might make any number of statements about any number of things that are not “reasonably pertinent to diagnosis or treatment.” Such statements do not fall within the exception and would be excluded as inadmissible hearsay, if offered to prove the truth of the matter asserted in the statement.

I have no reason to believe that Judge Lester does not know the hearsay rule. Judges have considerable latitude to admit evidence at pretrial hearings, such as a bail hearing, that would not be admissible at a jury trial. Judges are presumed to know the rules of evidence and not base their decisions on evidence that they would not permit a jury to hear.

I believe Judge Lester is giving the defense wide latitude to present whatever evidence it wants to present because most judges I know routinely do that at pretrial hearings. The prosecutor is complaining because that is what prosecutors do to periodically remind a judge that the defense is wandering far afield instead of addressing issues specific to the hearing.

The specific issues I would ask the defense to explain, if I were the judge are:

1. Why did George Zimmerman misrepresent to the court that he was indigent and conspire with his wife, Shellie Zimmerman, to conceal from the court that he had received $155,000 from donors to his internet account?

2. Why should the court not conclude that he is a flight risk and cannot be trusted, given hisirresponsible judgment and egregious behavior in misrepresenting that he was indigent when he knew he was not indigent, and his decision to involve his wife and sister in a scheme to use their bank accounts to hide the $155,000 and to deny any knowledge about that money, if asked under oath, in order to conceal it from the court?

3. Doesn’t George Zimmerman’s irresponsible judgment and egregious behavior in involving members of his family in a scheme to falsely claim indigency, conceal $155,000 in assets, and lie about it, if necessary establish that he is a danger to others, if released.

I would deny the defense motion.

13 Comments | Admissions by a Party Opponent, Bail Hearing, George Zimmerman, Hearsay Rule, Motion To Set Bail, Shellie Zimmerman, Trayvon Martin | Tagged: , , , | Permalink
Posted by masonblue

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