#Ferguson: Darren Wilson’s prearrest silence may be admissible

August 23, 2014

Saturday, August 23, 2014

Good afternoon:

BettyKath asked the following question in the comments to yesterday’s post, Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses.

Didn’t the Supreme Court rule that maintaining silence before the Miranda warning, i.e. before being arrested, can be interpreted as a sign of guilt?

This is an excellent question regarding the admissibility of prearrest silence and my answer is the subject of today’s blog.

Yes, prearrest silence can be interpreted as evidence of guilt unless the suspect/defendant specifically invokes his fifth amendment right to remain silent. In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant did not report the killing to the police until he turned himself in to police two weeks later. He told them that he stabbed the victim to death in self-defense. At trial, the prosecutor cross examined him regarding his failure to report the killing and to claim self-defense when it happened. He also commented on his silence in closing argument claiming that it was evidence of guilt.

The Supreme Court of the United States (SCOTUS) affirmed his conviction rejecting his argument that the comments on his prearrest silence violated his fifth amendment right to remain silent. The Court held that his silence was admissible because a defendant must expressly claim his right to remain silent for it to apply.

See also Salinas v. Texas, 133 S. Ct. 2174 (2013).

Pursuant to Jenkins and Salinas, Wilson’s failure to fill out the incident report (i.e., his silence) will be admissible against him at trial unless he expressly refused to do so citing his fifth amendment right to remain silent.

Apparently, he did not do that because the cover sheet is filled out, but the section where his narrative report should be is blank.

If he orally invoked his right to remain silent when he turned in his blank incident report, his prearrest silence will not be admissible.

In any event, the prosecutor doesn’t have to comment on Wilson’s silence to get an indictment because, as I stated yesterday, he can obtain it by merely calling the eyewitnesses and presenting the autopsy report.

Although Wilson’s prearrest silence will not be admissible at trial, assuming he expressly invoked his right to remain silent, we also have to consider whether his oral statements to others that he shot in self-defense will be admissible.

No, they are not admissible because they constitute inadmissible self-serving hearsay.

That leaves Darren Wilson between a rock and a hard place.

He must testify in order to get his ‘bum-rush’ defense into evidence and a self-defense instruction. However, if he testifies, none of the eyewitnesses saw a ‘bum rush’ and if he tells a different story, he can be confronted with his ‘bum rush’ story.

Not an enviable situation to be in even with $225,000 in donations for his defense.

If you appreciate what we do, please make a donation.

Thank you,

Fred


Liveblogging Michael Dunn trial defense case

February 11, 2014

Tuesday, February 11, 2014

Good morning:

We will be live blogging the Michael Dunn trial today and watching the proceedings via live stream link at First Coast News.

I recommend opening two browser pages, one for the blog and the other for the live stream. Size each one half-size so that you can view them side by side.

Court resumes at 8 am.

We are in the defense case.

Defense has possibly 2 more witnesses to call:

Doctor John Abuso, who is supposedly an expert regarding reactions by juveniles to extremely stressful situations, and possibly the defendant.

Here’s my take on Dr. Abus, who would presumably testify that fleeing from a shooting scene and ordering a pizza after attempting to kill four teenagers in an SUV is a normal human reaction (H/T to Lurker for the snarky remark):

Many thanks to Blushed Brown for providing a link to John Abuso’s website.

He has a D.Min after his name that I assume to be a Doctor of Divinity. He also claims to be an ordained minister.

Where he went to school to obtain his degree is not listed.

He lists no articles published in professional peer reviewed journals.

He claims to be:

Lic. Marriage & Family Therapist
Clinical Member AAMFT
Clinical Member ATSA

AAMFT is the American Association of Mariage and Family Therapists.

ATSA is the Association for the Treatment of Sex Offenders

He also claims to have received advance training in Ericksonian hypnotherapy.

I am not seeing any evidence of a scientific or medical basis to what this man does.

By almost any standard that I can imagine, this guy is not qualified to express a science or medical based opinion regarding any matter in this case. Therefore, his testimony should be excluded under Rule 702 as not helpful to the jury to decide an issue of that nature in this case.

Because there is no evidence of self-defense admitted into evidence, I do not believe Judge Healey will give a self-defense instruction unless Dunn testifies.

______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Please I am pleading for donations. We have received less than a dozen for less than $200.

We are not going to be able to pay our rent and electricity for this month without reader donations.

Fred


Opening statements in the Zimmerman trial today

June 24, 2013

Monday, June 24, 2013

Good morning:

Opening statements are scheduled to begin at 9 am EDT, but they probably will not start before 9:15 because both sides are going to want to get a ruling from Judge Nelson before opening statements on the defense argument that several statements by the defendant after the shooting to W13 and the police are admissible pursuant to the res gestae exception to the hearsay rule.

She previously granted the State’s motion in limine to exclude all of the defendants statements after the shooting on the ground that they were self-serving hearsay. The statements at issue today were excluded pursuant to that ruling. Therefore, the defense cannot mention them in their opening statement, unless Judge Nelson reverses her earlier decision regarding these particular statements.

They want to mention the statements during their opening statement because GZ said he killed TRayvon Martin in self-defense.

The State likely will oppose the defense motion with an argument similar to the one that I made in my Friday evening post.

I believe opening statements are extremely important because they provide the first and only opportunity for each side to explain their respective theories of the case to the jury and briefly discuss the supporting evidence. Many lawyers compare an opening statement to a road map. If a lawyer makes a good opening statement, jurors will have a good overview of the case and the evidence that will be presented. If a lawyer makes a bad opening statement, the jurors will be confused and not know what to expect.

An opening statement should not exceed 20 minutes. Therefore, clarity and brevity are important. Detail, not so much.

An opening statement is not an argument. For that reason you will hear the lawyers often say, “We expect the evidence will show ABC or XYZ.

If a lawyer starts arguing what the evidence means, you should expect opposing counsel to object.

Prior to opening statements, Judge Nelson will instruct the jury that the remarks of counsel are not evidence.

Evidence consists of the testimony of the witnesses and the exhibits admitted by Judge Nelson.

I am hoping the State will mention what the evidence will show about GZ’s phone calls before and after he killed Trayvon.

Bernie de la Rionda (BDLR) has to decide whether to introduce any of the defendant’s statements during the State’s case in chief or save them for rebuttal.

He could do it either way, but the less he introduces during his case in chief, the more likely GZ will testify.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


I have changed my mind and now support Judge Nelson’s decision

June 22, 2013

Saturday, June 22, 2013

Good afternoon:

I was in the waiting room at my doctor’s office down in Tennessee browsing through a dictionary looking for new words with which to torture y’all when CNN announced that Judge Nelson had issued an order excluding the State’s audio experts (Tom Owen and Dr. Alan Reich) from testifying at the trial. For those of you who may not be as familiar with the case as we are, both experts would have testified that George Zimmerman did not utter that haunting shriek. Dr. Reich also would have testified that Trayvon Martin likely uttered the shriek.

The anchor person said Judge Nelson determined that there is an absence of agreement in the scientific community that the methodologies used by Mr. Owen and Dr. Reich were capable of identifying the source of the terrified death shriek due to the current inability in the scientific community to match a voice exemplar with a shout, the poor quality of the 911 recording, and the short length of time in which there are no competing sounds on the recording and only the shriek can be heard (approximately 3 seconds).

Although I predicted Judge Nelson would deny the defense motion, I cannot say that I am surprised or dismayed by her decision. In fact, and I may surprise some of you with this statement, I am going to compliment Judge Nelson for her decision because it is the right decision at the right time in our nation’s courts and I believe it took a lot of courage for her to make it, especially in a high visibility case like this one in which the whole world is watching.

I have previously written about the deplorable state of forensic science in our nation and the need for standards, regulatory oversight, and mandatory blind proficiency testing of lab personnel modeled after the Clinical Laboratory Improvement Act (CLIA). There is no question in my mind that Dr. Nakasone and Dr. Weyman are on the right track attempting to establish a national set of standards and accepted methodologies for use in forensic voice identification. Judge Nelson did the right thing by endorsing their efforts and her decision was courageous because a lot of forensic scientists and the prosecutors and defense lawyers who employ them will criticize her.

My support for the admissibility of the results obtained by Mr. Owen and Dr. Reich is based on the unique set of circumstances of this case in which the shriek could only have been uttered by one of two known individuals. This situation only requires eliminating one of the two individuals. Since all of the experts who testified agreed that the methodologies used by the State’s experts have been used for many years and continue to be used today; it was easier to exclude than to declare a match; the defense was unable to find an expert willing to testify that George Zimmerman uttered the shriek; and the circumstantial evidence proves that Trayvon Martin uttered the shriek; I concluded that the State’s experts should have been permitted to testify. I still believe that would have been an appropriate conclusion to reach applying the Frye rule.

I am very pleased and proud of your reaction to the news. I anticipated dismay, some panic, and cynical complaints that Judge Nelson is corrupt and the outcome is rigged. I anticipated this reaction because I confess that it was my first reaction. A 2-hour motorcycle ride home on a beautiful afternoon driving on a lesser-traveled 2-lane highway curving through forests and corn fields with the Crane-Station sitting behind me was the perfect antidote. I fully engaged in driving my motorcycle, forgot my disappointment, and realized the prosecution is in a much better position because of her ruling.

When I arrived home and checked the blog I saw that y’all were taking it in stride without any help from me. Y’all know that the prosecution does not need the expert testimony to convince the jury that Trayvon Martin uttered the shriek and I think y’all also realize that not presenting the expert testimony avoids the inevitable distraction and confusion that a battle of the experts might cause. Indeed, in a case like this with only two possible individuals who could have uttered the shriek, there is virtually no chance that any jury would conclude that the shooter uttered that shriek when the evidence will show that he was the person who was armed, he was the person who got out of his vehicle and ran after an unarmed Trayvon when Trayvvon attempted to get away from him, he was the person who admitted to establishing control over Trayvon with a wristlock before pulling his gun and shooting Trayvon, and the shriek ends with the gunshot. Just as we do not need a weatherman to tell us which way the wind blows, we also do not need experts to tell us who uttered that shriek. Neither will the jury.

Therefore, Judge Nelson did the prosecution a huge favor by excluding the experts. In essence, she applied the KISS rule and is forcing the prosecution to do the same thing. She deserves to be thanked for that, not criticized. Y’all realized that without any assistance from me and that is why I am so proud of you and so delighted to see how much you know about the case and how sophisticated you have become in understanding the evidence and the rules governing the use of expert witnesses.

Anyone lacking your knowledge of the evidence in this case would have thought the prosecution had lost any chance to convict George Zimmerman, given the near unanimity of so-called legal experts characterizing this ruling and the selection of an all woman jury as devastating disasters for the prosecution.

Before I got involved in this case, I did not believe my low opinion of the national media and their so-called legal experts could possibly get any lower. However, the nonsense they are spewing as informed opinion has significantly lowered the bar. Despite its availability, they are ignoring the evidence that we have so carefully analyzed and discussed. They have accepted Mark O’Mara’s false narrative and joined in demonizing an innocent 17-year-old kid with loving parents and a bright future. I would have considered myself extraordinarily fortunate if Trayvon were my son and I would have been extremely proud of him. Anyone lawyer who has joined in the demonization of Trayvon and his parents by appearing on national television and voicing an expert opinion regarding the case that endorses the false narrative as though it were true, is a fundamentally dishonest human being without empathy or moral compass.

In many ways, Travon’s case functions as a mirror reflecting the prejudices people have about race, black male teenagers, and black people as parents and citizens. With the selection off an all female jury, the case is reflecting the prejudices people have about women as decision-makers.

Before this case, I knew we had a long long way to go before we reach a place where we no longer disrespect people by the color of their skin and their gender.

Trayvon’s case has taught me that our society is far more racist and sexist than I imagined. His case is an opportunity to set the record right and recommit to seeking equality and justice for all of our people as opposed to a privileged few.

Congratulations to all of you from your humble professor.

Fred

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


What really happened moments after the gunshot in the Zimmerman case

June 22, 2013

Saturday, June 22, 2013

Good morning:

Don West impeached his client with the legal document he filed yesterday titled, Defendant’s Specific Response to State’s Motion in Limine Regarding Self-Serving Hearsay Statements of Defendant.

He said at pages 2-3.

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

With that fresh in your mind, please watch what the defendant told the police about those moments during his walk-through for the Sanford Police Department a little less than 24 hours after he killed Trayvon Martin.

Thank you to LLMPapa for preparing these two clips from the walk-through.

Clip 1

Clip 2

Congratulations, Mr. West.

You have succeeded in proving that your client lied.

Can you pass the straight-face test when you argue to Judge Nelson that the defendant’s “spontaneous” statements to W13 are reliable and accurate?

What is she going to think about your credibility and professionalism when the State shows her the walk-through video?

By the way, was his statement to the person he called on his cell phone another “spontaneous” utterance?

As long as you are spillin’ the beans, why don’t you tell us who he called and what he said.

FYI: A few minutes after I posted this article, I reversed the order of the two clips because #2, which is now #1, is more directly relevant given the focus of the article. I apologize for any confusion that may have caused.


Zimmerman’s statements after the shooting are not admissible

June 21, 2013

Friday, June 21, 2013

Good evening:

Don West filed a written motion this afternoon identifying the defendant’s statements that he claims are admissible pursuant to the res gestae exception to the hearsay rule.

The statements are hearsay and not admissible pursuant to the res gestae or any other exception to the hearsay rule.

Mr. West describes the statements as follows:

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

The defense bases its argument on Alexander v. State, 627 So.2d 35, 43-44 (1st DCA 1993), where the Court stated,

We conclude that the trial court erred in excluding the testimony of witnesses to the shooting that described appellant Alexander’s exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant. The statements about which these witnesses could testify were made almost simultaneously with the act of shooting, a period of time too short to support a finding of fabrication that would destroy the apparent trustworthiness of this evidence. The mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence. No legal principle excludes statements or conduct of a party solely on the ground that such statements or conduct is self-serving. State v. Johnson, 671 P.2d 215 (Utah 1983); State v. Wallace, 97 Ariz. 296, 399 P.2d 909 (1965); Commonwealth v. Fatalo, 345 Mass. 85, 185 N.E.2d 754 (1962). See also United States v. Dellinger, 472 F.2d 340, 381 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). While exculpatory statements of the accused generally are excluded from criminal cases because of their hearsay character, 29 Am.Jur.2d Evidence § 621 (1967), the courts of this state have long recognized an exception to this general rule where the statements form a part of the res gestae of the alleged offense. Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla. 1977).[2] Furthermore, Florida has followed a liberal rule concerning the admittance of res gestae statements. See Appell v. State, 250 So.2d 318 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla. 1971). Accordingly, we do not see any basis on this record for concluding that this testimony was lacking in apparent trustworthiness and probative value. Thus, we are impelled to conclude that the exclusion of the proffered testimony of res gestae statements in this case was an abuse of discretion and, under the circumstances of this case, cannot be treated as harmless error.

(Emphasis supplied)

Accord: Stiles v. State, 672 So.2d 850 (4th DCA 1996).

Therefore, the critical question for Judge Nelson to decide is whether the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.”

Contrary to the defense assertion that “within seconds of the shooting,” the witness saw the defendant “staggering, bleeding and breathing hard,” the evidence will show that the witness described the defendant as “calm and collected” and within a few minutes all of his vital signs were normal when an EMT checked him. Indeed, he was cool, calm and collected.

With the exception of a few minor injuries that did not require stitches, a trip to the ER or even a bandaid, the defendant did not even appear to have been in a fight. Moreover, the only witness who described seeing a fight subsequently retracted that statement.

The evidence also will establish that the terrified death shriek ended when the defendant fired the fatal shot and both of the state’s expert witnesses have excluded the defendant as the person who uttered that haunting scream.

The evidence will show that, at the time he uttered the statements, he knew that the police were on their way and due to arrive any second.

Finally, the evidence will show that, instead of using his cell phone to call 911 for an emergency vehicle and attempting CPR until medical assistance arrived, he mounted Trayvon, placed his hands around his throat and subsequently stood up and had a casual conversation with a neighbor about the type of gun and ammunition he used to shoot Trayvon.

Under these circumstances, unlike the two cases cited by Mr. West, there is no basis for Judge Nelson to conclude that the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.” In fact, quite the opposite is true.

Here is Wiki with a little more information on the res gestae exception, in case it remains unclear:

Under the Federal Rules of Evidence, res gestae is an exception to the rule against hearsay evidence based on the belief that, because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e., by the witness, who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements that can be admitted into evidence as res gestae fall into three headings:

Words or phrases that either form part of, or explain, a physical act,

Exclamations that are so spontaneous as to belie concoction, and

Statements that are evidence of someone’s state of mind.

The defendant’s statements establish that he was in a full cover-up mode knowing that the police were en route and due to arrive any second.

Therefore, the cases cited by Mr. West do not apply and the defendant’s statements are inadmissible hearsay.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


All Female Jury to decide Zimmerman case, Opening Statements Monday at 9 am

June 20, 2013

Thursday, June 20, 2013

Good evening:

We have a jury, an all female jury.

B-29
B-76
B-37
B-51
E-6
E-40

The four alternates:

E-54
B-72
E-13
E-28

Two males and two females.

Here’s a link to fauxmccoy’s chart on the jurors.

Those in green made the jury. Those in red were stricken.

I tried hundreds of cases during my 30 year career and never had an all female or an all male jury.

5 of the 6 women are white. One is Hispanic.

5 of the 6 women are mothers.

I would be very worried, if I were George Zimmerman, because I believe those mothers are not going to believe him. I think they are going to hold him accountable for killing an unarmed teenager.

I am unhappy that none of the jurors are black, but I do not believe that is going to affect the final outcome of this case.

I predict GZ will testify because Mark O’Mara did not voir dire the panel of jurors regarding a defendant’s right to remain silent and not testify. When my clients decided not to testify, I always made sure that the jurors understood that my clients were not required to testify and no one could assume that their silence was evidence of guilt.

Judge Nelson announced that counsel will give their opening statements beginning at 9 am EDT on Monday morning.

After she dismissed the remainder of the panel and swore in the jurors, Judge Nelson excused the jury and completed the evidentiary part of the Frye hearing.

Assistant State Attorney Manthei summed up the situation when he said there was nothing novel or new about the methodologies used by the State’s experts. What is new is a move across several different scientific disciplines to establish a universal set of standards to use when attempting to match a recording of an unknown voice to a database of recorded voices of known individuals in order to declare a match.

That is a far more complicated task than listening to a known voice and excluding that known individual as the source of a voice on a recording. There are only two possible sources of the terrified shriek that ends with the shot and it’s not difficult to exclude the armed defendant who admitted firing the fatal shot as the source of that scream.

Manthei added that the State was not responsible for the recent news reports that the defense had an expert who identified GZ as the source of the scream.

And some PJs mentioned hearing that in the news before reporting for jury service.

However, as it turned out, the defense could find no expert to testify to that opinion and the reports were false.

If I were Judge Nelson, I would rule that the State’s experts may testify and express their opinions. The defendant’s objections go to the weight of the evidence, not its admissibility.

Judge Nelson will issue her ruling after court reconvenes at 9 am tomorrow.

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


%d bloggers like this: