To prove premeditation, a prosecutor must prove beyond a reasonable doubt that the defendant intended to kill the victim and, upon reflecting on the decision to kill, decided to go ahead and kill the victim. This process can occur quickly and only requires more than a moment in time to take place. Therefore, time is not particularly important to proving premeditation.
A prosecutor must rely on circumstantial evidence to prove premeditation, unless the defendant has admitted that he or she premeditated the murder. The most powerful circumstantial evidence of the defendant’s intent is the defendant’s conduct. The greater the length of time between formation of intent to kill and the act that causes death, the more likely the defendant reflected on the decision to kill and decided to complete the act.
Many of us, including me, have speculated that GZ premeditated the death of Trayvon Martin. However, a prosecutor must restrict himself to charging what he believes he can prove beyond a reasonable doubt. This is why GZ is charged with second degree murder. It is a conservative charging decision based on the uncertainty of convincing all of the jurors beyond a reasonable doubt that GZ reflected on a decision to kill Trayvon Martin and decided to go ahead and do it.
Now consider the Jodi Arias case. Seems to me that there is overwhelming evidence of careful planning before the murder, and the use of two weapons (knife and gun) to carry it out, including a coup de grâce, eliminates any doubt in my mind that she had opportunities to reflect on her decision to kill and decided to complete the act.
Jodi Arias just finished addressing the jury (her right to allocution) and the Court is now instructing the jury.
What did you all think about her allocution and what do you think the sentence will be?
Keep in mind during the jury deliberation that any mental illness qualifies as a potential mitigating factor. Insanity is a legal definition that requires proof that, due to a mental illness, a defendant could not distinguish between right and wrong at the time of the act. Any effort to conceal the commission of the crime and/or the person’s role in committing the crime normally defeats the insanity defense. Arias is not claiming insanity.
Closing arguments will begin at 1:30 pm PDT.
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Why haven’t we seen any reciprocal discovery? I’d like to see what the defense has turned over to the State. Do we not get to see reciprocal discovery?
The Defense has expert witness’ that they would like to call via video conferencing at the next hearing, and filed a motion for approval. Does the Judge approve or deny this motion before the next hearing date or wait and tell them during the hearing when she gets to that motion? I haven’t even seen a motion in reply from the State yet, so maybe they have no objections to this. I don’t see how they don’t considering the defense did not name these experts, unless they did through emails or something.
Let’s not place the cart before the horse. Judge Nelson first has to decide whether to grant the defense motion for a Frye hearing. She will decide that motion at the hearing on May 28th.
I do not believe she will grant the motion because O’Mara has not made a proper showing. He needs affidavits from experts asserting that the technology/methodology used by the prosecution’s experts is not generally accepted in the relevant scientific community (i.e., audiologists). He hasn’t done that.
If she were to grant the motion, however, I do not believe she would conduct it via video conferencing. Cross examining someone on a video screen is not the same as cross examining them in person when the witness is not on his own turf with support at the ready off camera. I do not believe Bernie de la Rionda would agree to O’Mara’s request. I certainly would object if I were the prosecutor. I do not believe Judge Nelson would grant O’Mara’s request over de la Rionda’s objection.
O’Mara appears to be caught up in a money trap caused by frivolous expenditures of internet contributions and now he cannot afford experts.
Too bad, so sad.
The answer, as I have been suggesting for several months, is to attempt to get the defendant declared indigent so that the court will pay for the experts, but O’Mara and his client do not want to go there.
I suspect the reason is they do not want the internet fund shut down and turned over to the Court for reimbursement.
Greed and stupidity are quite the double whammy.
They have only themselves to blame.
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I doubt that the defense has retained an expert who will testify that the defendant uttered the shriek that ended with the gunshot for the simple reason that everyone in their profession in the world would thereafter know they had committed perjury.
The defense has had one year to find and endorse an expert witness. Yet they have not done so.
Mark O’Mara claims that he has an expert who disagrees with Dr. Reich, but he has not identified the expert or produced a copy of the expert’s report.
I think he is bluffing and I am calling his bluff.
Who is your expert, Mr. O’Mara?
Let’s see his Curriculum Vitae and written report.
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I have reviewed the State’s 9 motions in limine and listed them below for easy reference. They are consistent with existing law and contain nothing surprising or controversial. I expect Judge Nelson will grant all of them.
On multiple occasions during the past year, I have mentioned the issues raised by each motion, identified the correct legal rule to apply to resolve each motion, and predicted the outcome. Using this case as context, let’s briefly review each of the 9 motions to see how well we understand why and how lawyers use them to solve problems and gain a tactical advantage.
1. STATE’S MOTION REQUESTING COURT TO ORDER DEFENDANT TO COMPLY WITH THEIR DISCOVERY OBLIGATIONS.
(This motion alerts the Court that the defense has not been complying with its reciprocal discovery obligations in timely fashion and asks for an order directing the defense to correct that situation as soon as possible).
2. STATE’S MOTION IN LIMINE REGARDING TRAYVON MARTIN
(This motion seeks an order prohibiting the defense from mentioning any oral or written statements or conduct by Trayvon Martin regarding school suspensions, use of marijuana or fighting. The State also asks Judge Nelson to prohibit the defense from referring to Trayvon wearing a set of false gold teeth, his school and performance records, his use of social media, and his use of text messages that he sent or received before the murder. The State argues that none of this evidence is admissible.
3. STATE’S MOTION IN LIMINE REGARDING SELF-SERVING HEARSAY STATEMENTS OF DEFENDANT
(This motion refers to the important distinction between the admission-by-a-party-opponent rule, which permits the prosecution to introduce some or all of the defendant’s statements, but prohibits the defense from using them because they are hearsay)
4. STATE’S RESPONSE TO DEFENDANT’S MOTION FOR EVIDENTIARY HEARING
(This is the defendant’s motion for a Frye Hearing regarding the admissibility of expert testimony about the methods used to clean-up the sound quality of the 911 call)
5. STATE’S MOTION TO LIMIT/EXCLUDE IMPROPER OPINION EVIDENCE
(This motion seeks to exclude improper opinion evidence regarding the defendant’s guilt or innocence elicited from SPD officials who investigated Trayvon Marin’s death.)
6. STATE’S MOTION IN LIMINE REGARDING PRIOR CRIMINAL HISTORY
(This motion seeks to prevent the State defense from informing the jury that the defendant did not have a prior record because it’s irrelevant)
7. STATE’S MOTION IN LIMINE REGARDING OPINION AS TO APPROPRIATE PENALTY OR DISREGARD OF LAW
(This motion seeks to prohibit the defense from telling the jury about the possible length of sentence and arguing for jury nullification)
8. STATE’S MOTION IN LIMINE REGARDING CALLING OF WITNESSES
(This motion seeks to prevent the defense from arguing to the jury that, if the State fails to call a witness on its list, the jury should assume the witness’s testimony would have been different.)
9. STATE’S MOTION FOR PROTECTIVE ORDER/MOTION IN LIMINE REGARDING TOXICOLOGY
(This motion seeks to prohibit the defense from mentioning that a trace of marijuana was detected in Trayvon’s blood. The evidence would be irrelevant because the trace amount was too low to impair functioning)
I am featuring two excellent comments today by Towerflower regarding the validity of the defendant’s CCW license. I thought it wasn’t, but Toweflower has presented a strong argument that it was valid.
Towerflower ought to know since he or she is licensed to teach the course on firearm safety.
I am working on a post about the State’s motions in limine and should have it up in a couple of hours.
Fred
Comment 1
Jun, I have read it and gone through the process. His charges were downgraded to resisting arrest without violence. It is a misdemeanor, only a charge of violence would have prevented him. It was dismissed after his diversion program and it would have not prevented him. Only a felony conviction would have. 4 years passed from the time of the arrest to his CCW.
His restraining order did have a expiration date, 1 year, and it was never renewed by either party. This was also in 2005 and 4 yrs passed.
This is the “short” printed list from the State of Florida for disqualifiers:
*The physical inability to handle a firearm safely.
*A FELONY conviction (unless civil and firearm rights have been restored by the convicting authority).
*Having adjudication withheld or sentence suspended on a felony or misdemeanor crime of violence unless 3 years have elapsed since probation or other conditions set by the court have been fulfilled.
*A conviction for a violent crime in the last 3 years, either misdemeanor or felony.
*A conviction for violation of controlled substance laws or multiple arrests for such offenses.
*A record of drug or alcohol abuse.
*2 or more DUI convictions within the previous 3 yrs.
*Being committed to a mental institution or adjudged incompetent or mentally defective.
*Failing to provide proof of proficiency with a firearm.
*Having been issued a domestic violence injunction or an injunction against repeat violence that is CURRENTLY IN FORCE.
*Renunciation of US citizenship.
*A dishonorable discharge from the armed forces.
*Being a fugitive from justice.
I can teach the training class. Taking the class is not a guarantee that the state will pass you. They do not issue the CCW, they only provide a certificate of safety training which is part of the application process given to the state. The certificate of training is a 8 1/2 x 11″ certificate that one could frame and in no way can be confused for a CCW. A safety class would never refund their time or cost of materials if someone didn’t pass the State’s process. Classes SHOULD include a shooting session so that the Instructor can verify that the person can safely handle and shoot a gun, the only thing I can think of is that they didn’t charge him for ammo and refunded that portion. The cost of the written material is about $11 and he paid $90 for the course, with the Instructor pocketing the rest.
More importantly the State would never, never, never, issue someone the CCW and then investigate the file. I said in the previous comments I had an issue come up in mine where they said I was lacking in the file. When I called they wanted the NRA Instructor number of my lead trainer which they said should be on the certificate of training. My training was not in the run of the mill safety class that most take. I took the Instructor training in which I now have the credentials to teach the CCW safety classes. Those certificates did not have a place for the instructor to put his License # where the safety classes do. In the end all I needed to do was send them a copy of my Instructor credentials, that had my Instructor # on it, and they THEN issued my CCW.
There is nothing in his file saying they sent him any notifications at a later date. His file also contains inquiries from the Sanford PD and the Florida Dept. of Civil Rights that happened after the shooting of Trayvon and the State’s response to them. This can be found in the previous thread where I say how to find the FDLE inquiry and what was in his file. There is no mention that he received a refund from the State or that his CCW was suspended or revoked.
Don’t get me wrong, I don’t like Fogen any more than the rest of you do but I researched this early on and there was nothing that we know about him that would have prevented him from obtaining the license.
Comment 2
Xena, One of the things told to me when I took the training for the Instructor credentials was to make sure that I kept all information on the people that I train. One Instructor said he scanned the information to reduce paperwork space. They explained that LE always comes back to the Instructor of the class to see what they can find out or remember about the student, there is no time limit on when they will go back. This is a common practice when the shooter is a CCW holder, once again their investigation into it isn’t unusual and I was told this a couple of years before the TM shooting. If an Instructor gave a certificate to a student they felt was not ready it will cost the Instructor their credentials.
On the statement of the Instructor he said he purges his records every 2 years and didn’t have fogen’s information anymore. Since he took the class in 2009 it sounds like the paper shredders were working overtime.
Also that pdf I referenced people to look at is his CCW file. In it they also place inquiries about a holder. There have been 3, first was by the Sanford PD, then Florida’s Civil Rights Division, and the last one was from the FDLE. All of them were after the shooting of Trayvon, not one was a federal agency….unless it was after the FDLE request.
To Frye or not to Frye,
that is the question.
Whether ’tis nobler in the mind
to suffer the slings and arrows
of outrageous fortune
or to take arms against
a sea of troubles
and by opposing end them.
Hamlet, Act III, by William Shakespeare
Good morning:
I write today to explain the Frye Rule and Mark O’Mara’s latest strategic mistake. Let’s begin with the mistake.
If Judge Nelson grants his motion, there will not be any testimony by an expert witness regarding the identity of the person who uttered the terrified shriek. That will not help the defense because that intense, high-pitched, and prolonged nightmarish shriek of sheer terror ends abruptly with the fatal gunshot to the heart.
Just as it does not take a weatherman to tell which direction the wind blows, no juror is going to have any difficulty figuring out that the person who uttered that inhuman shriek is the victim of that gunshot. No juror is going to believe that the person armed with the gun; who pulled it out of a holster; who extended his arm; who aimed the gun taking care to make sure his left hand was out of the way; and who pulled the trigger at point-blank range is the person who screamed.
I am certain the prosecutor will not forget to remind the jury that the defendant told the police that he kept screaming for help after the shot because he thought he missed Trayvon Martin.
Apparently, Mark O’Mara has not listened to that agonizing shriek because, if he had listened to it, he never would have filed this ridiculous motion that can only hurt his client, if Judge Nelson grants it, since the absence of expert testimony would simplify identifying Trayvon as the source of the shriek while also disproving the defendant’s claim that Trayvon was beating him to death and attempting to smother him when he fired the fatal shot.
Breath. Taking. Stupidity.
Now, let’s take a look at the Frye-hearing request.
Every once in awhile someone develops a new theory or a new way of performing some task (i.e., a new methodology). A lawyer finds out about it and decides he wants to apply that new theory or methodology to win a case. Opposing counsel says, “Not so fast, pal. Not without a Frye hearing.”
A Frye hearing is a pretrial hearing to determine if evidence obtained pursuant to a new theory or methodology should be admitted or excluded during the trial. Think of it as a judicial screening device to exclude potentially inaccurate and unreliable evidence based on a new untested theory or methodology.
A single assignment of error is presented for our consideration. In the course of the trial counsel for defendant offered an expert witness to testify to the result of a deception test made upon defendant. The test is described as the systolic blood pressure deception test. It is asserted that blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject’s mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.
In other words, the theory seems to be that truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.
Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.
Judge Van Orsdell then proceeded to define the new rule:
The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence.
Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.
(Emphasis supplied)
The issue Judge Nelson would have to decide, assuming she decides to hold a Frye hearing, is whether the methodologies used by the state’s experts are generally accepted by audiologists as capable of producing accurate and reliable results.
The Frye test has been described as a counting-heads test because it does not require the judge to understand the theory or methodology at issue. The judge need only count the heads of the experts in the particular field and decide whether they generally accept the methodology.
As I recall, two experts used different methodologies to compare the shriek to a voice exemplar provided by the defendant. One methodology has been used for many years and the other one, which was developed recently, involves the use of a software program.
Both experts have excluded the defendant as the source of the scream.
Since the first method has been used for many years, it probably has survived a Frye challenge in Florida.
The second method may be too new to have been challenged at a Frye hearing.
The glaring, and I believe fatal, omission in O’Mara’s motion for a Frye hearing is the absence of any supporting affidavits from experts in audiology that one or both of the methodologies used are not generally accepted by audiologists as capable of producing accurate and reliable results.
Nobody gives a damn about what the non-expert lawyer thinks. He is not qualified to express an opinion about general acceptance of these methodologies.
Therefore, I would deny his motion for a Frye hearing.
Notice that regardless whether Judge Nelson grants or denies O’Mara’s motion, the State will still be required to lay a proper foundation for each of its expert audiologists at trial pursuant to Evidence Rule 702 that the witness is a duly qualified expert in the field and the result obtained using the particular methodology in question will assist the jury to decide who is screaming.
In conclusion, if I were the prosecutor, I would be inclined to try the case without putting on any audiologists during my case-in-chief for the simple reason that I do not believe they are necessary. This is another illustration of the KISS rule.
BTW, all that sparring about whether Tracy Martin could identify Trayvon as the source of the shriek does not matter.
Hardly anyone ever shrieks like that and lives to tell about it, so it stands to reason that no one, including his father, ever heard Trayvon utter a shriek like that. This may explain why it may not be possible for any expert to positively identify the source of the shriek without considering the circumstances or context that produced it.
That’s why it sounds inhuman.
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Defense attorney Mark O’Mara said Tuesday that a 911 call could be the key piece of evidence in the case against George Zimmerman. In the background of the audio recording, you can hear someone screaming for help.
If it’s Zimmerman, O’Mara said it shows that the night watchman was the one under attack “and documents his story completely — it also documents his injuries.” If, however, it’s 17-year-old Trayvon Martin’s voice on the recording, then it could show Zimmerman was “acting in a very aggressive way toward him,” O’Mara said.
So which one is it?
O’Mara told In Session correspondent Jean Casarez that witnesses for the prosecution and the defense can’t seem to agree. So, he wants to have a hearing to decide if anyone should be able to testify about the voice at all.
Should jurors be able to decide for themselves whom they hear on the call?
Translation of O’Mara-speak into ordinary English: O’Mara knows that Trayvon uttered the 40-second terrified shriek.
Quite an admission by the man who has been so certain in the past that his client uttered the shriek.
Most of us are not surprised because we figured it out last summer.
We have been wondering when everybody else would finally figure it out.
So, what does O’Mara want to do?
He wants to exclude the tape, so the jury will not even hear it.
There is absolutely no chance Judge Nelson will grant that motion.
The legal rule is that arguments regarding the identity of the person who uttered the terrified shriek go to the weight that the jury should assign to the opinion of each witness and not to the admissibility of the testimony itself.
Notice the disappearing defense.
No immunity hearing and now this damning admission.
Say good-bye, George.
Justice for Trayvon
(H/T to Elcymoo for providing the link to the HLN article)
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The defendant’s friend, Frank Taaffe, described the defendant’s state of mind the night that he stalked and killed Trayvon Martin.
He was mad as hell and he wasn’t going to take it anymore.
Given that Taaffe uttered this statement after he found out about the shooting, I believe we can reasonably assume that he believed the defendant pursued and confronted Trayvon with murder in mind.
Why did he believe that?
Why was the defendant so angry?
What was it that the defendant was not going to take anymore?
I have puzzled over Taaffe’s statement ever since I heard him say it.
Despite a lack of objective evidence that would support a belief that the gated neighborhood was besieged by burglars and thieves, the defendant appears to have believed that was actually happening, or he pushed that false narrative in hopes of creating a justification for the Homeowner’s Association to hire him to provide security.
He also appears to have believed that the burglars and thieves were Black and they always got away.
Frank Taaffe told us that the defendant was mad as hell about that and he was going to put an end to it.
The defendant said during the NEN call, “fucking coons,” and “these assholes, they always get away.”
This explains why he got out of his vehicle and hunted for Trayvon, ignoring the dispatcher’s request not to follow him.
Indeed, we can see by his actions that he was “mad as hell.” Acting as police officer, prosecutor, jury, judge and executioner the defendant decided that Trayvon was one “fucking coon,” one “asshole” who wasn’t going to get away.
A little over two minutes after the defendant ended the NEN call, after telling the dispatcher to have the officer call his cell phone when he arrived in the neighborhood, he hunted Trayvon down and shot him to death as Trayvon was telling Dee Dee about the creepy man who stalked and frightened him.
Trayvon never found out who he was or why he stalked and attacked him.
He died in the dark and cold rain begging for his life and shrieking in terror and disbelief.
Although Trayvon was a good kid, it would not have mattered if he were the Devil incarnate.
He was unarmed and he did nothing except try to escape from a creepy man who stalked him, first in a vehicle and then on foot.
The defense effort to demonize him and his family disgusts and infuriates me.
Demonizing Trayvon, even if successful, is not a defense and evidence of bad acts or character, assuming such evidence exists, is not admissible.
Defense counsel deserve harsh criticism and universal condemnation for pursuing this incredibly depraved and unnecessary course of action.
By attempting to exploit racial stereotypes and race-driven fear of Black males in a high publicity case, Mark O’Mara, Don West and everyone who supports what they do give us all a bad name.
Let there be thunder across this land that makes the mountains tremble,
Justice for Trayvon
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Searching Mind posted a comment in which he asked me to explain what might happen when the defense moves for a judgment of acquittal after the prosecution rests upon completing the presentation of its case-in-chief.
The defense in any criminal case can and should move for a judgment of acquittal, sometimes called a directed verdict of not-guilty, after the prosecution completes its case-in-chief.
Pursuant to Jackson v. Virginia, 443 US 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), the rule the judge must apply requires her to assume for the purpose of ruling on the motion that all of the prosecution’s evidence, together with all of the reasonable inferences to be drawn from it, are true. Given that assumption, she must decide whether a rational trier of fact could find beyond a reasonable doubt that the defendant was guilty. In the context of this case, she would have to apply that test to whether the prosecution proved beyond a reasonable doubt each element of the crime of murder in the second degree and proved beyond a reasonable doubt that the defendant did not kill Trayvon Martin in self-defense.
With regard to the murder charge, I think the likely area of dispute will be the sufficiency of the evidence that the defendant’s act of shooting Trayvon evinced extreme indifference to human life (i.e., depraved mind). The answer to that question will depend on whether he shot Trayvon in self-defense.
With regard to self-defense, I believe the dispute will concern whether the defendant reasonably believed himself to be in imminent danger of death or serious injury when he shot and killed Trayvon.
I believe the judge will conclude the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that the defendant evinced a depraved mind when he shot and killed Trayvon, since I am expecting she will find that the evidence shows that he was not justified in using deadly force because, regardless of the defendant’s claim that Trayvon initiated the confrontation, the defendant’s injuries did not reasonably place him in imminent fear of death or serious injury when he pulled the trigger.
I am not anticipating that the prosecution will have any difficulty satisfying that test. I do not believe that any rational person will dispute that the person who uttered the 40-second terrified shriek for help that ended so precisely with the gunshot that it appeared to have been silenced by it, was not the person who had the gun. If it had been the person with the gun, he would have continued screaming for help after the shot since, according to the defendant, he thought the shot missed. No, I do not believe there is any chance that a rational trier of fact would conclude that the person armed with a gun uttered that shriek or was in any danger whatsoever from that unarmed person when he pulled the trigger.
After Judge Nelson denies the defense motion, the defense will have the option of putting on a case or resting and submitting the case to the jury.
I would not be surprised if the defense rests without calling the defendant or any other witnesses because the prosecution’s case is strong and the defendant so hopelessly compromised himself with a blizzard of conflicting and inconsistent statements such that no jury would believe anything he said.
Notice that I did not mention Dee Dee (W8). I intentionally did not mention her because I have never believed she was a necessary witness, much less the prosecution’s star witness, as the defense and the media have described her.
Her testimony will be cummulative rather than critical. In other words, it will be mere icing on the cake.
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The immunity hearing should not be combined with the trial for the following reasons:
A defendant has a 5th Amendment right to remain silent throughout the trial. If the Court were to combine the trial with an immunity hearing, that would put pressure on the defendant to testify during the defense case.
Depending on how well the prosecution’s case-in-chief might have gone, the defense might be tempted after the prosecution rests to rest and not put on a defense. However, because the burden of proof in the immunity hearing is on the defense, the defendant would have to testify. This is a classic example of compelling a defendant to testify and possibly incriminate himself by doing so. The 5th Amendment expressly prohibits compelling a defendant to incriminate himself.
That would not be the case if the immunity hearing were held before trial. The defendant could testify in the immunity hearing without waiving his right to remain silent at the trial.
Another reason not to combine the two is that the order of presentation differs. The State goes first at trial, but the defense goes first in an immunity hearing. Strategy can change dramatically depending on whether a party has the burden of proof. Whether a party goes first or second will affect the evidence it will present, its choice of witnesses, and the order in which the witnesses will be called.
Finally, the purpose of an immunity hearing is to identify strong self-defense cases early on and to immunize those defendants from criminal and civil liability so that they do not have to endure the psychological and emotional wear and tear of living a life in limbo while possibly in custody for a year or more before trial. Saves the expense too for all concerned. Combining the immunity hearing with the trial cancels out all those advantages.
Finally, just because a defendant has a fundamental right to an immunity hearing does not mean that he cannot waive that right as the defendant did today.
500 people are going to be summoned to court for jury service in this case and it makes no sense to go to the time, trouble and expense to do that just because the defendant wants to wait and see how jury selection and the prosecution’s presentation of its case is going before he decides whether to seek immunity.
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Posted by masonblue 
