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.


Zimmerman: Standard Objections on Direct and Cross Examination at Trial

September 24, 2012

Time for a change of pace.

In today’s post, I am going to provide you with a description of direct and cross examination during the prosecutor’s case in chief together with a list of the standard objections that you are likely to hear during the trial. I will cover the defense case in tomorrow’s post.

After opening statements, the prosecution will present its case in chief and rest when it’s done. To survive a defense motion to dismiss after it rests, the prosecution must have presented legally sufficient evidence to support its case.

The legal test for legally sufficient, or substantial evidence as it is called, requires the trial court to assume for purposes of the motion that all of the evidence presented by the prosecution is true.

The trial court must then decide whether that evidence would disprove each element of self-defense and establish each element of M2.

If the answer is yes, the trial court will deny the motion to dismiss.

If the answer is no, it will grant it.

These motions are rarely ever granted. They are routinely made without argument in order to preserve the argument for an appeal. Therefore, do not be surprised by such a defense motion or expect it to be granted.

The prosecution will present its case through the testimony of its witnesses. After a witness is sworn, the prosecutor will question the witness until finished. This is called direct examination.

With rare exceptions, the prosecutor will not be permitted to ask a leading question. A leading question seeks a yes or no answer. For example, the prosecutor might ask, “You saw the defendant straddling Trayvon, didn’t you?

Notice that, in effect, the prosecutor is testifying and the witness is agreeing or disagreeing as the case may be.

If this happens, the defense attorney will object on the ground that the prosecutor is leading the witness. The judge should sustain or grant objections to leading questions on direct examination.

Notice that I qualified the rule when I said, “With rare exceptions, the prosecutor will not be permitted to ask a leading question.” The rare exceptions are set-up questions. For example,

“Mr. Slade, I direct your attention to Sunday evening, February 26th, 2012, between the hours of 7 and 8 pm. You were at home at RATL during that period, weren’t you?

After the witness says, “Yes,” the prosecutor asks another leading question to set the scene.

“Did there come a time when you heard loud voices outside your home?”

After the witness answers “Yes,” the prosecutor switches to a non-leading question like this,

“Please tell the ladies and gentlemen of the jury what you heard.”

The witness then begins narrating his answer.

You may hear the defense attorney object stating,

“I object to the narrative form of the testimony.”

The judge should sustain the objection and ask the prosecutor to pose specific questions

Direct examination usually elicits answers to questions like, who, what, where, and when.

The goal of direct examination is to set the table with leading questions to focus the attention of the witness on a subject, event or document and have them tell their story in their own words with an occasional nudge to keep the testimony focused and on track.

You may hear an occasional objection to the relevancy of a question. Relevance is determined by the matters at issue in a case. The big issue in the case is whether the prosecution can disprove the elements of self-defense and prove the elements of murder 2.

Evidence is relevant if it tends to prove or disprove an element or issue in the case.

Relevant evidence is admissible subject to certain exceptions such as uncharged misconduct, character evidence, prior criminal convictions, and hearsay. I have covered those subjects in previous articles.

When the prosecution completes the direct examination of the witness, the defense attorney has an opportunity to cross examine the witness.

The major difference between direct and cross examination is that leading questions are permissible. In fact, they are not only permissible, they are the preferred way to cross examine a witness.

The ideal cross examination limits the witness to yes or no answers. The defense lawyer knows exactly what information he or she wants to elicit from the witness and if the answer is contrary to the expected answer, the lawyer is ready to impeach the witness to get the expected answer.

The usual way this is accomplished is to confront the witness with a prior inconsistent statement. Here is an example.

Q: Mr. Slade, you testified on direct that the traffic light was red when my client entered the intersection, didn’t you?

A: Yes, I did.

Q: Do you recall when I took your deposition in the prosecutor’s office on June 16th of this year?

A: Yes.

Q: You were under oath, weren’t you?

A: Yes.

Q: The prosecutor was present right?

A: Yes.

Q: Do you recall me asking the following question and you giving the following answer?

Q: You did not actually notice what color the light was when my client entered the intersection, did you?

You answered my question, Yes, didn’t you?

A: Yes.

A skilled cross examiner never asks the witness to explain his answer. Instead, he moves on to the next subject or ends the cross.

A skilled cross examiner never asks a question, if he does not know the answer and he never permits a witness to lapse into a narrative or retell their story.

The scope of cross examination is determined by the subject matter covered on direct. If the defense attorney asks a question regarding subject matter not covered on direct, you will probably hear the prosecutor object that the question exceeds the scope. The judge will sustain those objections.

The prosecutor may question the witness on redirect after the defense attorney is done. You might expect the prosecutor to attempt to rehabilitate his witness in the example just provided. Should he attempt to do so, he will have to do it by asking non-leading questions.

The scope of redirect is determined by the subject matter covered on cross.

Redirect can lead to recross and so on until both parties are finished with the witness.

Tomorrow, we will take a look at the defense case.


%d bloggers like this: