#TheodoreWafer: How much evidence should the prosecution introduce before resting

Friday, July 25, 2014

Good evening:

I write this evening to discuss litigation strategies in criminal trials.

The prosecution goes first and last, since it has the burden of proof.

To survive a halftime defense motion to dismiss one or more charges against the defendant, the prosecution must present substantial evidence to support every element of each charge.

“Substantial evidence” is a legal term. Basically, the judge has to consider all of the evidence introduced by the prosecution during its case in chief and assume, for the purpose of ruling on the motion, that all of it is true, together with all reasonable assumptions that flow from that evidence, and decide whether the evidence would establish every element of each crime charged.

For example, Wafer is charged with second-degree murder. The elements of a second degree murder charge are committing an act with intent to cause the death of another person that results in the death of that person. The prosecution has introduced Wafer’s 911 call and his statements about the shooting. If we assume those statements are true together with all reasonable assumptions that flow from that evidence, we can conclude that the prosecution has introduced “substantial” or legally sufficient evidence to establish every element of the crime of second degree murder, except causation.

The prosecution will fill in that gap next week when the medical examiner testifies that the gunshot wound to her face caused Renisha McBride’s death.

That is the bare bones minimum amount of evidence that the prosecution has to introduce to survive a halftime defense motion to dismiss the murder charge.

The rules of evidence do not preclude the prosecution from introducing additional evidence, so long as it is relevant to an issue in the case. For example, evidence that Wafer was not in imminent danger of being killed or suffering serious bodily injury would be relevant and admissible to prove he did not fire his shotgun in self-defense. Evidence has been introduced that the peep hole in the front door was functioning and both the front door and the screen door were closed and locked until he unlocked and opened the inner door and fired the shotgun through the screen door. Also Wafer’s two contradictory statements about why he fired the shotgun constitute substantial evidence that he did not believe he was in imminent danger of death or serious bodily injury when he pulled the trigger.

Note that a judge is not required to determine witness credibility or weigh evidence to decide a motion challenging the sufficiency of the evidence. The judge assumes the evidence introduced by the non-moving party was true and based on that assumption she will decide whether to grant or deny the motion to dismiss.

If she denies the motion, then the murder charge will go to the jury after both sides rest.

Roderick and Fauxmccoy have been arguing in the comments about whether the prosecution made a bad tactical decision when it introduced evidence that McBride was impaired by alcohol and marijuana when she drove her vehicle into a parked car four hours before the shooting. For example, the prosecution presented the testimony of Renisha’s friend, Amber Jenkins, that Renisha had consumed both drugs and the blood toxicology reports will state how much was in her blood.

I believe the prosecution wisely decided to introduce that evidence to avoid the appearance of withholding it. They knew the defense was going to introduce it, so they seized the opportunity to introduce it themselves. I would have done the same thing.

The prosecution screwed up in the Zimmerman trial by introducing all of Zimmerman’s contradictory self-serving statements without aggressively attacking the credibility of any of them.

Attacks on credibility are usually presented during closing arguments and I am anticipating that the prosecution in the Wafer case will do that at the proper time.

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38 Responses to #TheodoreWafer: How much evidence should the prosecution introduce before resting

  1. Malisha says:

    I believe the prosecution should present every bit of evidence that is really probative of the crime. Then it should rebut every bit of evidence the defense uses during ITS turn. A prosecution that, like BDLR/creepy in the Fogen trial, foregoes rebuttal is a prosecution that is collusive in the crime itself; it commits “accessory after the fact.”

    • MKX says:

      And they were “afraid” to aggressively impeach any of those “good people” who testified on behalf of George or to vigorously that asshole { I refuse to use his name } mock Trayvon’s female friend for hours.

      My mother was deaf and talked “funny” due to that and repair of a cleft palate.

      Mocking a person with a handicap will set off my temper.

  2. Annie Cabani says:

    Professor, I’m wondering if it might be helpful to expound a bit on this:

    The prosecution goes first and last, since it has the burden of proof.

    To survive a halftime defense motion to dismiss one or more charges against the defendant, the prosecution must present substantial evidence to support every element of each charge.

    There’s nothing wrong about these statements. But I recall some confusion during the Zimmerthug trial – specifically, about what evidence the prosecution can introduce after it rests its case-in-chief and after the defense rests its case.

    Some readers seemed to think that the prosecution could “save” some of its damning evidence for use after the defense rested. But it’s my understanding that even though the prosecution may “go last,” after the defense rests, it can’t introduce just any-old new evidence that it “saved” for that stage. Rather, the prosecution at that point can only introduce new evidence to “rebut” the defense’s case. Also, the defense could rest without putting on any case at all and, in that event, the prosecution doesn’t get to “pile on” any additional evidence, does it?

    So, while the prosecution needs to present enough evidence to survive “halftime” dismissal motions, don’t they also – as a practical matter – have to present ALL their convincing evidence in their “first go” (a/k/a case-in-chief)?

    • Dave says:

      The prosecution not only has to present enough evidence in their case-in -chief to survive dismissal motions, they have to present enough evidence to prove guilt beyond a reasonable doubt to the jury. Failing that, the defense can refrain from presenting any evidence at all and the trial moves on to closing statements.

    • crustyolemothman says:

      bettykath, While Mr. Curry makes some interesting observations and quite a lot of praise for Ralph Nader, he neglects to point out that Obama has not had the support of either party, as most presidents before him have had at least one party totally supporting their agenda. While I think some things he has done could have been done better, considering the lack of support that he has received, even I have to rate his over all performance as better than what we had prior to his taking office. But that is simply my opinion… Serious discussions of politics is best left to the blogs that specialize in that type of discussion due to the hard feeling it seems to generate… Personally IMO the place to start with change should not take place on the national scene, but instead on the local and state level. That is where the individual does/will have the most voice in their government. Reform will flow uphill from there, if that is truly what the people want…

      • bettykath says:

        There have been other political discussions here.

        I posted this article b/c it has ideas on how we, all of us from various political persuasions, can work together to make change.

        Nader points out several areas where we can work together. He is a great advocate of working with our neighbors to make change locally.

  3. crustyolemothman says:

    O/T but you need to read this! The GOP/TP/NRA finally has grounds to impeach the POTUS!


  4. Dave says:

    IIRC Wafer said something like “I didn’t know there was a round in there.” I believe that he meant that he didn’t realize that there was a round in the chamber and the gun was ready to fire. Maybe there was a shell in the chamber when he picked it up. Maybe he chambered a round after he picked it up and forgot about it. (Easy to forget in a state of panic.) And–yes–maybe he lied.

    I don’t believe that the gun went off by accident. Wafer may have misspoken. I think it far more likely that he had his finger on or near the trigger and jerked it reflexively in response to something he saw or heard or thought he saw or thought he heard. What? I don’t know. I want to hear his testimony before I make up my mind.

  5. crustyolemothman says:

    Does anyone else think the statement from TW’s attorney that he didn’t think/know the shot gun was loaded is simply not realistic? I might point out the they also said he opened the door a little ways and saw a figure outside, and the weapon went off. One problem that really stands out in that scenario is if he thought the weapon was not loaded why did he raise the weapon and pull the trigger? If you thought a gun was not loaded why would you pull the trigger and allow the possible intruder know your weapon was not loaded? The more I think about the defense attorney’s opening statements the more I wonder about the quality of defense this man is receiving.

    • MKX says:

      That statement along with the “gun went off by accident” remark he made to the police is an admission of manslaughter – which is an intentional act that led to the death of another. If accepted, he could avoid M2, because he is trying to claim that his intentional act was not of a depraved mind with a total disregard to human life because he did not know a round was in the chamber.

      However, his defense is trying to go for a full exoneration by making up a scenario wherein there were these virtual group of thugs who caused him to be in such a panic that he just picked up the gun and fired.

      I am on record as not liking liars.

      So this change in story that is already clear from evidence would lead me to conclude that he did know there was a round in the chamber and the first story was made up to reduce his guilt and the second is just more lies.

      So M2, it is, if I was a juror.

      I would bargain down to manslaughter to avoid a hung jury, if the Wafer believers offered it.

      If they wanted full exoneration, then they can go to Hell.

      • Annie Cabani says:

        MKX, I’m not sure that a “depraved mind” or “total disregard of human life” are necessarily factors in this case, like they were in Florida. But you got me curious enough to do some Googling!

        Michigan’s penal code doesn’t actually define Murder 2 – it basically just says that all kinds of murder other than Murder 1 are Murder 2. (NC’s statute is like that, too.) I’ll send a link to the penal code in a separate comment, because I want to include a link here to the state’s Model Criminal Jury Instructions, which are more informative as to the elements of various homicides:

        Click on “Instructions” button to open the PDF, then scroll the bookmarks for Chapter 16.

        I’ve selected a few to post here — but I’ve edited them (for simplicity) and I don’t include any footnotes, citations, etc. Also, I haven’t followed the case, so I don’t know what the exact charges are or what specific issues might be involved. So you should look at the model jury instructions yourselves to evaluate what’s pertinent and what’s not.

        As another caveat: I don’t know if Michigan courts actually use their model instructions, or not. For example, I noticed that the court pretty much ignored and/or befuddled Florida’s standard jury instructions in the Zimmerthug case, and maybe that will happen again in this case.

        But, anyway, I hope this is helpful information (and I apologize if you all have already found and discussed it).

        M Crim JI 16.5 Second-degree Murder

        To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
        (1) The defendant caused the death of [deceased], that is, [deceased] died as a result of [the alleged act causing death].
        (2) The defendant had one of these three states of mind: he intended to kill, or he intended to do great bodily harm to [deceased], or he knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his actions.
        (3) The killing was not justified, excused, or done under circumstances that reduce it to a lesser crime.

        M Crim JI 16.8 Voluntary Manslaughter [Sounds a lot like Murder 2. Also, compare the “lesser offense” instruction, 16.9.]

        To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
        (1) The defendant caused the death of [deceased], that is, [deceased] died as a result of [the alleged act causing death].
        (2) The defendant had one of these three states of mind: he intended to kill, or he intended to do great bodily harm to [deceased], or he knowingly created a very high risk of death or great bodily harm knowing that death or such harm would be the likely result of his actions.
        (3) The defendant caused the death without lawful excuse or justification.

        M Crim JI 16.9 Voluntary Manslaughter as a Lesser Included Offense of Murder

        The crime of murder may be reduced to voluntary manslaughter if the defendant acted out of passion or anger brought about by adequate cause and before the defendant had a reasonable time to calm down. For manslaughter, the following two things must be present:
        (1) When the defendant acted, his thinking must be disturbed by emotional excitement to the point that a reasonable person might have acted on impulse, without thinking twice, from passion instead of judgment. This emotional excitement must have been the result of something that would cause a reasonable person to act rashly or on impulse. The law does not say what things are enough to do this. That is for you to decide.
        (2) The killing itself must result from this emotional excitement. The defendant must have acted before a reasonable time had passed to calm down and return to reason. The law does not say how much time is needed. That is for you to decide. The test is whether a reasonable time passed under the circumstances of this case.

        M Crim JI 16.11 Involuntary Manslaughter — Firearm Intentionally Aimed

        To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
        (1) The defendant caused the death of [deceased], that is, [deceased] died as a result of [the alleged act causing death].
        (2) Death resulted from the discharge of a firearm.
        (3) At the time the firearm went off, the defendant was pointing it at [deceased].
        (4) At that time, the defendant intended to point the firearm at [deceased].
        (5) The defendant caused the death without lawful excuse or justification.

        • MKX says:

          Thanks, that is very informative, and, IMO, those statutes are written better than what Florida uses.

          Mu cursory review indicates that Wafer is, at least, guilty of voluntary manslaughter, based on the choices listed.

          Taking into account my personal biases about how a responsible fire arm owner should act, I would find guilty for second degree murder because I was raised, old school, and you never pointed a fire arm, unless you intended to use it. And I feel that is common sense. Let us look at the act of pointing from the perspective of the victim. If I see a gun pointed at me, I can only assume that I am faced with a lethal threat because I have no way of knowing that this gun is loaded or not, so I would have every right to try to kill the pointer in self-defense.

          • Annie Cabani says:

            Glad you found it infomative. (And, just for clarity, those are model jury instructions, not statutes.)

      • Annie Cabani says:

        Here’s the homicide penal code link:

        Michigan Penal Code – Chapter XLV – HOMICIDE

    • bettykath says:

      I thought I read that he kept his shot gun in one place and his ammo in another. If this is true, his statement that he thought the gun wasn’t loaded is a load of ….. Another possibility is that he keeps the gun loaded when he puts it away. So why keep the ammo elsewhere?

      • crustyolemothman says:

        bettykath, When I first heard of this case the story was that he went to the bedroom and got the shotgun, then went to the closet and loaded it. But that story as the rest of his “story” keeps evolving. Before the case is over the three thugs that he allegedly saw/heard will have over powered him and shot the victim and then forced the shotgun back into his hands leaving him as a victim of those big mean thugs as well….

    • fauxmccoy says:

      beyond that — what kind of idiot drags out an unloaded gun to scare off a perceived threat?

      i do not buy it for a minute and think you make a good point about his representation. she has been personally responsible for telling 2 of the 3 versions of his defense, now on record and further, boxed herself in a real corner with her opening statement.

      i do believe that every defendant is entitled to the best possible defense, although that can be woefully lacking depending on one’s finances. i do not think she is incompetent, necessarily, but some of her words/actions to cause me to pause for a moment.

      • I don’t believe she is ready for prime time. The mistakes she made in her opening statement were rookie mistakes. She has not learned to avoid creating opportunities for her opponent to take advantage of. That requires strategic thinking. Lots of if I say this, they will do that.

        Good trial lawyers, who know the evidence and the rules governing its admission, can comfortably see the moves and countermoves out to 10 moves at any given time.

        She’s not there yet, which raises questions about why she is lead counsel.

        Most lawyers, myself included, have gargantuan egos. We are more likely to believe we are ready to try the big case before we really are.

        On the other hand, she has a really tough case to win.

        Everyone should keep in mind that any mistakes she makes can become the basis for an ineffective assistance of counsel claim in a post-conviction habeas petition, assuming he is found guilty.

        • fauxmccoy says:

          i cannot argue with your characterization of cheryl carpenter. i have to believe that she brought her father into this for a reason. presumably he has significantly more experience. her opening statements were dreadful in light of what is/was to come.

          now, if her dad is seriously experienced, does that not change the ineffective counsel argument? just curious.

        • Malisha says:

          I think she’s been made lead counsel because it “looks” good to the jury. Plain & Simple. She’s not the sharpest tool but how do we know what “shed” she’s in?

  6. MKX says:

    Crustyolemothman, you are very sharp, indeed.


    • fauxmccoy says:

      it’s probably very thick, sharp crust. but yes, you are right. at 50, i am still anxious to know when i should be expecting the crust.

      i said this a few threads ago, but will do so again directly. your comments about this case, in light of your many years of experience in the area, are very insightful. i appreciate them very much.

      • crustyolemothman says:

        fauxmccoy, As you said, the input of “MKX” has been extremely valuable in establishing the possible state of mind of residents in the greater Detroit area, and for that he is to be commended…
        Now about the crust, my kids always said that I was older than dirt, and as a matter of fact I was so old that I was the construction foreman when God made the earth. Trust me on one thing, a single father raising four kids on his own will soon have a crust… Thank goodness those years are long since passed!

        • fauxmccoy says:

          four kids on your own? you sir, are a legend in your own time. i freely admit i couldn’t do that on my own. there is not a day that goes by that i am not grateful for the love, trust and honesty i have shared with my boyfriend now spouse for 19 years. i’m sure i’ll develop crust in due time, unless i head straight into crotchety old fart territory.

          • crustyolemothman says:

            fauxmccoy, I would suggest you are too modest, you could and would do the same if you had the need to do so.

          • fauxmccoy says:

            @mothman — you are too kind. i will admit there was a time when i was newly disabled (extremely limited mobility), my children were 5 and 7 and my husband was gone 12-15 hours a day for his job. we lived in san jose and i did somehow manage to keep the kids moving in the right direction. it was not easy and i was completely cut off from family support (other than limited financial while i was waiting for SSDI) because of location.

            yeah, you may be right. the kids have turned out great so far at 14 and 16. i could not be more proud of them. still, i thank whatever is holy that my husband could put in those kind of hours and manage to support us all. without him, i would have had to move in with one of my folks, just to survive. point well taken, sir. we all do what we have to for the sake of our children’s well being.

    • crustyolemothman says:

      MKX, I don’t consider myself particularly sharp, but one thing that drives my curiosity is some thing I heard many years ago. “There are two truths, one is the truth that you expect people to accept and the second is the real truth!” Often times we hear what we want/wish to hear and do not hear the real truth screaming out in the background. While TW’s story sounds good if you only give it a cursory listen, but when you start to actually listen to it in depth, too many small inconsistencies start to show up. But the troubling part about this whole process is for many of us who followed the Zimmerman trial, is that while the evidence was there to convict the desire on the part of the state to ensure the conviction was not… I’m seeing hints of that in this trial as well, I truly hope that I am wrong. IMO to compare this man (TW) to Zimmerman as individuals would be wrong, the one IMO is a cold blooded killer who is destined to kill again, and the other killed during a moment of raging anger. The end results however remain the same, there are two young people who had their lives cut short by men armed with a gun… But think for a moment how many have been killed in the past and even in the future because we are a society that no longer values the lives of our fellow man? It’s now time to get off the soap box and be quiet…

      • Well said sir. I concur. Carry On.

      • Malisha says:

        because we are a society that no longer values the lives of our fellow man?

        I don’t think we have yet become a society that values the lives of our fellow man. We have valued the lives of our fellow non-military un-poor white men. We have valued the lives of our celebrities. But “our fellow man” — let them eat cake.

        • crustyolemothman says:

          Malisha, Your words remind me of the glass half full/half empty argument. The way we view our surroundings is often based on our own perceptions and is possibly done with blinders on. There are still many good and kind people in this nation that give of themselves on a daily basis, yet we don’t see them, why, simply because we are standing in the middle of the proverbial group of trees, and failing to see the forest around us… We live in a difficult time of transition and it is to us to steer the nation! Which way will we turn?

    • MKX says:

      Thanks all.

      I try to give a perspective of a group that is not given much play in the media – whites who did not flee the cities during the 1960s, 1970s and 1980s.

      If I may make a gross generalization, I feel that those who live in urban environments tend to follow the “believe non of what you read and half of what you see rule”

      I contrast that with the “good people” as evidenced by B37 who believe everything they are told by “an authority” and none of what is in plain view.

      You would not believe how many heated arguments I got in with suburban people about Detroit wherein their entire fact base was what they read in a paper or saw on TV. Seriously, they were experts on a land that they never stepped foot in.

      Or I remember another argument with a Republican, in the DC area, wherein he stated ” you know who Willy Horton is, don’t you?”

      To which, I replied: “Yes, he is a former Detroit Tiger who owns a bar by Livernois, who my father visits from time to time”.

      The Republican got mad, turned beet red, and left.

      The Willy Horton of Detroit is truly a great man who did a lot for people.

  7. crustyolemothman says:

    One more small point that could be made that might cause problems for the defense. It has been implied that TW opened the door only a slight amount to see who was out there and then out of fear fired his weapon hitting the victim. I think that we can effectively rule that this is not possible, the door swings from left to right (the inside door) the hole in the screen is to the far left (from the inside) as shown in the photo’s, the victim fell back and to the left (as seen from the inside of the house) after having been shot. Now If you will consider the length of the weapon and the length of TW’s fore arm, you will realize that regardless of whether he is right or left handed, the door would need to be open virtually all the way. I wish that it were possible for me to somehow provide you with a diagram of what was necessary to make the shot, but I simply don’t have the means, especially with my slow I-net connect speed. Hopefully my words will make a little sense, if not, tell me and I will attempt to explain it better….

    • fauxmccoy says:

      i don’t think i need a diagram (even though i am a woman so we all know i am spacially challenged 😉 ). if i understand what you are saying, the gun shot blast was closer to the hinges of the main door than the door opening; thus implying that the main door was wide open. the better to observe the ‘mystery goons’ awaiting wafer with the gun he did not think was loaded (notice my disbelief). i hope this comes out — maybe they will reconstruct the door and screen door as physical evidence as they did with pistorius. it would certainly aid the jury in visualizing the scenario.

      yet another keen observation. you don’t miss much for a crusty old guy. (i am curious about how many years i have before the crusty sets in, i plan to fight it all the way.)

      • crustyolemothman says:

        fauxmccoy, Good morning, hope all is well on your end…
        So far in relation to the defense attorneys opening statements where she outlined their primary defense argument, we have seen at least three of here points made null and void. The screen was not destroyed or torn from its hinges as shown in the photo’s taken the morning of the murder, the peep hole was not shattered at the time of the murder, as was noted by the officer on the scene who actually took the time to look thru it. What I have noted here also contradicts the opening statement that he simply peeped out the door, and also calls into question the “I did not know it was loaded” statement, because what person who was as fearful as claimed would swing a door wide open to expose their full body to the alleged thugs trying to break in to his house with an empty gun? I honestly think he swung the door open during a moment of anger, saw the girl there and shot the gun. IMO this was murder one and not murder two, I honestly think he saw her and shot intending to kill her because she was disturbing his peace… This is another one of those cases, if there had not been a public outcry, that would have simply been swept under the rug never to reach the point that charges would have been filed. That is why the PD did such a poor job at the scene of the crime, they did not intend to investigate the death, simply because it was just another one of the minority deaths in the world, and we all know that they don’t count, right?

        • fauxmccoy says:

          having been a victim of an attempted home invasion, i can relate to the enormous fear of being in that position. in my case, it was a very large man busting down my none too sturdy door. i remember the almost overwhelming desire to open the door and just make the bad thing stop. i know i’ve told this story before, but i was 6 months pregnant and had a 2 year old at the time who i locked in a closet for her own protection when i decided to load my .38. that ‘fight or flight’ instinct is powerful and as a very pregnant woman with a small child, flight was not a viable option.

          there are real differences though. i called 911, they provided excellent advice about not opening the door and they kept repeating it. clearly, they know this is a strange instinct that overcomes people in such situations, and i remained as calm and cool headed as possible and waited an agonizing 10 minutes or so for the sheriff to arrive.

          California, despite all thoughts to the contrary across the nation, is still a very western state with almost the same castle doctrine and SYG self defense laws. the difference, however, between a murder charge and a justifiable homicide depends enormously on whether or not the home security has been breached. basically, i was smarter than wafer, but i would guess that most folks are.

          it is not hard for me to imagine he was reacting out of fear — but said fear was not rational or reasonable under the circumstances. all signs point to wafer acting like an unreasonable, murderous asshole who now has three different versions of what happened. all he had to do was say ‘look, i’ve got a loaded gun and i’m calling the cops’, stay safely behind his solid door and drunk person would be removed from his doorstep, just as i experienced.

  8. crustyolemothman says:

    While I don’t think this case will end the way many of us would like due to outside influences, I think so far the state has done a pretty fair job of presenting the case to the jury. I can’t help but to think that some how the defense had a hand in getting the life feed removed from the court room. The state has presented some evidence that has already damaged the case that was outlined in the rambling opening statement of the defense attorney, but the one thing they will need to overcome is the theory that there was more than one person outside TW’s house that morning. He did mention, in an around about way, during his earlier interviews that the sound was not concentrated at just the front door. I would suspect that this is where the defense has come up with the reasoning that more than one person would make a good excuse for the murder. The other day I asked if TW was right or left handed is actually a pretty important question if one were to think about it for just a moment. After again looking at the photo’s of the door it does open from the left (if inside the house). The weapon that TW used is pretty nose heavy and for a person that is not relatively strong would need two hands to effectively aim and shoot it (but some contend that one hand is enough), to see what I mean take a stick about two foot long,and tie a weight of about three pounds on the end of it and see how easy it is to control the end with the weight on it if you hold it at the opposite end. Now lets assume you are right handed, place the mock weapon in your right hand and go to a door that opens to your left and see what is necessary to open the door and fire. Try that and you will understand what I am saying…

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