Patterico's Pontifications

6/3/2013

Judge Says Evidence of Trayvon Martin’s Character for Violence Cannot Be Raised in Opening Statements

Filed under: General — Patterico @ 12:01 am



The New York Times says that evidence of Trayvon Martin’s past drug use or history of violence cannot be mentioned in opening statements:

Lawyers for George Zimmerman, who is charged with second-degree murder in the killing of Trayvon Martin, will be barred from mentioning Mr. Martin’s marijuana use, history of fights or high school suspension during opening statements in Mr. Zimmerman’s trial, which begins June 10.

At a hearing Tuesday in a Seminole County court, Circuit Judge Debra Steinberg Nelson denied a string of defense motions concerning evidence that was intended to portray Mr. Martin as a troubled teenager with a propensity for fighting and an interest in guns. Prosecutors argued that such evidence had nothing to do with Mr. Martin’s death.

However — although the article is not clear about the specifics — the judge has left the door open for such evidence to be presented at trial:

Mark O’Mara, Mr. Zimmerman’s lawyer, argued that Mr. Martin’s drug use could have made him aggressive and paranoid, which the defense said might have prompted him to attack Mr. Zimmerman, 29, a neighborhood watch volunteer.

“All of that fits in squarely to what the defense is going to present: that George Zimmerman was put in the position that he had to act in self-defense,” Mr. O’Mara said. “How could you keep us from arguing that?”

Judge Nelson replied, “The rules of evidence keep you from doing it.”

The judge left open the possibility that some of the information, including Facebook postings and text messages, might come up at trial, but she set a high hurdle for the defense. Mr. O’Mara called the decision a victory, saying that it would force prosecutors to be careful in how they portray Mr. Zimmerman.

Doug Mataconis at Outside the Beltway portrays this as entirely consistent with general rules of evidence. Mataconis does not purport to offer an opinion based on Florida law, but rather one based on “general principles of the laws of evidence.” Jazz Shaw at Hot Air says maybe Mataconis is right as a legal matter, but by gosh, to a layman it doesn’t sound right.

I’m not so sure, however, that Mataconis is right when he claims that the laws of evidence, generally understood, preclude such evidence. (As always, I speak here as a private citizen and not on behalf of my office.) Here is Mataconis’s reasoning:

As a general rule, evidence regarding the character of the victim, or the Defendant, is considered inadmissible unless it somehow becomes relevant to the actual facts at issue in the case. The most well-known example of this is the body of law that has determined, largely correctly, that the sexual history of a woman claiming that she was raped is inadmissible in a rape trial.
In reality, and under the law, it isn’t nearly that simple.

When a Judge is presiding over a jury trial, one of their most important roles is to ensure that the evidence that gets presented to the jury both provides them with the information that they need to decide the case before them and does not unfairly prejudice either the case of the defense or the prosecution. During the course of testimony this often involves ruling on what may seem like outside observers like rather boring objections on technical issues, but quite often they also involve ruling on the admissibility of evidence that could be potentially inflammatory. For example, for a very long and unfortunate period of time it was a matter of course that the sexual history of women who were victims of rape was considered admissible evidence, and many men who were quite obviously guilty of violent rape walked away free largely because the law endorsed a puritanical vision of female sexuality that essentially said that any woman who who had sex outside of marriage was a slut. It was only because of political action that the law in that area got changed.

Obviously, I am not trying to compare the Zimmer[m]an/Martin matter to a rape trial. However, there is an applicable analogy here in that the fact that Martin may have had violence issues in the past is not necessarily proof of what happened on the night of February 26th, 2012. After all, even the worst criminal on the planet could theoretically become a victim under the right circumstances.

Objectively, the only relevant issues in the Zimmerman case involve what happened that night.

But is that so clear?

Any discussion of “general law” that I make will start with California law, since that is my area of familiarity. Under California law, I think Zimmerman would have a pretty good argument. California law generally precludes (in Evidence Code section 1101) the use of character evidence to prove conduct on a specific occasion, with exceptions. But Evidence Code section 1103 provides, in part:

1103. (a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

This would, it seems, generally open the door to presentation of character evidence of a victim’s character for violence when the defense provides sufficient evidence to raise a genuine question as to whether the defendant acted in self-defense.* Then, the prosecution would be allowed to rebut that evidence with evidence of the defendant’s violent character. (The trial court, of course, always retains discretion to limit or exclude any evidence if the probative value is substantially outweighed by factors such as undue prejudice, consumption of time, confusion of the issues, and such.)

So in California, at least, it is certainly not the case that only what happened on the night of the murder can ever be considered “relevant.” And the federal rules of evidence appear to have a similar provision.

Mataconis draws an analogy to rape shield laws ruling inadmissible a rape victim’s past conduct — but section 1103 goes on to address that issue specifically, generally making a victim’s past sexual behavior irrelevant — except past sexual behavior with respect to the defendant. So under California law, at least, the “rape shield” laws are treated differently from evidence of the victim’s violence in a self-defense case.

Now, is Florida law different? I don’t see how, really. The relevant statute appears to be here:

90.404 Character evidence; when admissible.–
(1) CHARACTER EVIDENCE GENERALLY.–Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:
(a) Character of accused.–Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.
(b) Character of victim.–
1. Except as provided in s. 794.022, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or
2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

Again, in a self-defense case, if the defense raises a genuine issue regarding self-defense, I would think that evidence of the victim’s character for violence would be admissible — and I see nothing that requires that the defendant be aware of that character for violence, either.

I’d be interested to hear experts weigh in, or to read an account that has a little more meat on the bone than the typically superficial take we get from Big Media. And we need to wait to see how the judge ultimately rules. But I am confused as to how she reasons that the rules of evidence preclude Zimmerman from raising these issues before the jury.

57 Responses to “Judge Says Evidence of Trayvon Martin’s Character for Violence Cannot Be Raised in Opening Statements”

  1. How can a finder of fact, who would reasonably wonder why the heck this kid would attack this guy, not be privy to either a violent history or a history of pacifism of this kid, in their determination?

    The defendant must defend his character from many angles, but the State gets to preclude such regarding the second actor in a fight?

    Reversal coming upon conviction.

    Ed from SFV (24fde1)

  2. Sound like the Malosevich trial. You can defend yourself, as long as you don’t defend yourself

    Joe (0c596c)

  3. Watched a bit of the pre-trial yapping on HLN. Gave up quickly due to the obvious black analyst bias against “whitey” Zimmerman. Women I know think Zimmerman is a killer and don’t care at all about any negatives from the past of angelic Trayvon Martin. Men I know generally think Trayvon got what he deserved and the world is better off without him.
    Alan Dershowitz has said the prosecution is very prejudicial toward Zimmerman.
    I suppose politics is playing a large role as are fears of black rioting. Should be interesting to learn what kind of jury is picked. Wonder what role Choom, Al Sharpton and Jesse Jackson will play in the circus.

    calypso louie Farrakhan (53ccf5)

  4. From a pure Machiavellian standpoint you have to give the media/Democrat/academe cabal some credit. They sure as hell managed to turn a garden-variety street encounter into a cause celebre and a political rallying cry.

    Here we are, many moons later, and people who don’t live even within 3,000 miles of Florida are writing about it. Last November blacks in Florida voted 95-5 to reelect Obama, on heavy turnout, nearly matching to the number their lock step support for Obama during the massive wave election cycle of ’08. It would be as naive as blogs not to realize the left’s incessant Zimmerman mongering played a material role.

    Regarding this trial, the chances of this judge issuing a ruling in favor of Zimmerman are zero. The chances of Zimmerman getting an impartial jury are zero. The chances of Zimmerman getting a fair trial are zero.

    The dumbing down of America, the media’s descent into partisan lunacy, and politics by pure racial identity, all have had severe negative consequences. Obama is Exh. A. This entire Zimmerman-Martin fiasco is Exh. Z.

    William Scalia (89a442)

  5. You have to go on to 90.405, which limits proof of character to reputation or opinion. Specific acts are allowed only if character is an element of a defense, which is not the case with self-defense–in most self-defense cases the defense presents no character proof. Specific acts of the victim may be admitted for another purpose–to show the reasonableness of the defendant’s conduct, but for that use the defendant must have knowledge of them.

    Tim Baughman (8958e5)

  6. What’s most disturbing is Mataconis comment section, they let every type of ‘squirrel’ to avoid the truth, like ignoring Lerner’s obviously false statements,

    narciso (3fec35)

  7. Tim Baughman,

    I saw that statute last night but did not see it as
    a problem based on the following analysis.

    Here is 90.405:

    (2) SPECIFIC INSTANCES OF CONDUCT.–When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.

    Why wouldn’t the victim’s character for violence be an essential element of a defense centering on a self-defense theory? If self-defense is not a defense that fits within this language, what is?

    Is this your own analysis, by the way, or have you read that te judge is taking this position?

    Either way, I would not be persuaded without some case(s) to explain how 90.405 does not apply to a defendant using a self defense argument.

    Patterico (9c670f)

  8. It’s a close enough call to be within the judge’s discretion. It would bother me if the life and death witnesses were to testify that Tayvon Martin was an angel, who ate all his vegetables and said his prayers every night and loved children and puppies, and the defense was not allowed to bring in evidence to the contrary through prior bad acts.

    The real problem with this case is that Zimmerman can be considered to be the initial aggressor and his defense relies on the argument that Tayvon Martin used greater force than was necessary to get some creepy old white guy who was stalking him at night to leave him alone.

    It’s an interesting set up. Tayvon Martin did not have a duty to retreat either, if he was lawfully in a place in which he had a right to be, and it might just come down to that Zimmerman was not within the threat zone when Martin used the force he did. I’m thinking that if Martin had only called 911 instead of his girlfriend before going to punch out Zimmerman, Zimmerman would already be on death row.

    nk (875f57)

  9. There had been 400 calls from the complex in one year, a very aggressive breaking and entering, just three weeks before,

    narciso (3fec35)

  10. Zimmerman can be considered to be the initial aggressor

    Except nothing he did could be characterized as “aggression”.

    Rob Crawford (e6f27f)

  11. Illinois’s rules must be more liberal. A defendant can always put his own character for peacefulness and law-abidingness into evidence, either through reputation or personal knowledge of the defendant. And in instances of self-defense, the victim’s propensity for violence is relevant especially to show that he was the initial aggressor.

    Illinois courts frankly view the rape shield law as a question of public policy, and not because the victim’s prior sexual conduct is irrelevant or that the prejudice outweighs its probative value. That the victim was a prostitute cannot be raised (unless it is a substantive defense in the criminal statute itself) in a rape case for example.

    nk (875f57)

  12. It’s a close enough call to be within the judge’s discretion.

    nk:

    I don’t get the impression that the judge is ruling the evidence inadmissible based on a discretionary weighing of probative value versus undue prejudice. Her comment in the article makes it appear that she considered herself to be bound by evidentiary rules set forth in the code.

    Patterico (9c670f)

  13. Except nothing he did could be characterized as “aggression”.

    That’s the million dollar question, Rob.

    nk (875f57)

  14. Except nothing he did could be characterized as “aggression”.

    Well, shooting Martin to death. Under the prosecution’s view of the case, that was the initial aggressive act.

    Patterico (9c670f)

  15. Or on reflection maybe I am wrong and their view is pulling the gun was the initial aggressive act, causing Martin to react violently. That actually makes more sense as a prosecution theory than a totally unprovoked shooting.

    Patterico (9c670f)

  16. Then I agree that she is wrong, Patterico. It cannot should not be treated as a complete bar, analogous to shield laws.

    nk (875f57)

  17. Sorry, I type slow.

    nk (875f57)

  18. Women I know think Zimmerman is a killer and don’t care at all about any negatives from the past of angelic Trayvon Martin.

    I wonder how many of those women would happily and casually send their children to a school whose student body was primarily made up of Trayvon-Martin types?

    The two-faced, disingenuous nature of such women — of such people in general — never ceases to gall me. And when reading the following, consider how many of the people who are creating the socio-cultural patterns in the 21st century and described below, decades following the “Great Society,” are no less liberal, or actually are far more liberal, than their predecessors were when JFK was alive and well.

    Atlantic.com, June 2012: In his commencement speech at San Diego State College, the President of the United States covered unsurprising territory in describing the challenges facing the nation’s public schools — inequities for minority students, a high dropout rate, and the need for better teacher training.

    What might be surprising is that the president was John F. Kennedy, and he was addressing the class of 1963.

    Researchers…note that the nation’s public schools are more segregated today than they were in the late 1960s.

    Mark (3c44ce)

  19. I will caution that I am only looking at statutory language. I have not researched cases and don’t believe I have ever had this specific issue come up in a case.

    Patterico (9c670f)

  20. I added “it seems” to the sentence: “This would generally open the door to presentation of character evidence of a victim’s character for violence when the defense provides sufficient evidence to raise a genuine question as to whether the defendant acted in self-defense.” I don’t want to come across as more certain than I am.

    Patterico (9c670f)

  21. That said, I do believe that is what the rules would allow.

    Patterico (9c670f)

  22. Last November blacks in Florida voted 95-5 to reelect Obama

    And such monolithic voting patterns (and habits) have been evident regardless of whether the candidate is a black liberal or a white one. It may have been a bit more extreme in 2008 and 2012 with Obama, but if the candidates had been, say, Joe Biden versus a black conservative/Republican, the one-sided ratio wouldn’t have been too different.

    Such mindless liberalism is not a healthy thing in any community, for any people, whether they’re white, black, Latino, Asian, Jewish or gentile, gay or straight, male or female, etc.

    Mark (3c44ce)

  23. The swollen and bruised face, busted nose, and bloody back of Zimmerman’s head indicates that TraMar was the aggressor and that his violet assault on Zimmerman went on for some length of time before Zimmerman used his gun to defend himself. Also, the lack of damage to TraMar’s face and head tends to corroborate Zimmerman’s account that TraMar assaulted him.

    However, faced with racist demands for Zimmerman’s blood, Florida Governor Rick Scott, and Attorney General Pam Bondi (both RINOs) abandoned the rule of law and surrendered to the violence of mob rule.

    Bondi appointed corrupt prosecutor Angela Corey to make sure White Hispanic Zimmerman was sacrificed on the alter of racial hatred. Since then, the wheels of Corey’s Kangaroo Court have rewarded the prosecution and shortchanged the defense at nearly every turn, almost everything about this sorry spectacle his been a public disgrace, including media reports, the corruption of the prosecutors, and the bias of the judge.

    This isn’t justice, it’s a PC lynching.

    ropelight (c77ced)

  24. Usually, the defendant’s “prior record” is off limits during a trial. The dead person is sometimes attacked relentlessly by the defense. An example is the recent Jodi Arias trial.

    In one of the Christian-Newsom torture-murder trials in Knoxville, Tennessee, the defense claimed the victims came to the murder scene voluntarily and the murdered female had “consensual sex” with the killers.

    The prosecution refuted the defense claims, but Channon Christian and Christopher Newsom had been slandered.

    In the George Zimmerman trial, it is Martin who is being treated like the defendant. Martin’s character is off limits for scrutiny.

    It remains to be seen if the door will be opened.

    DN (09d6b1)

  25. Very good post. Well done.

    Leviticus (b98400)

  26. As if we haven’t seen rape trials where the character of the victim is relentlessly attacked. The “she wanted it” defense. Why are all the Zimmermann defenders attempting to blacken the character of the victim, as if the facts don’t speak for themselves? Imagine someone being on trial for perjury, and one side relentless tried to introduce a self description from a dating site as representative. Either Zimmerman was justified or he wasn’t. There’s no need to go to the stereotypical “black boogieman defense”.

    Mike Giles (758185)

  27. Race card pulled. Check.

    JD (b63a52)

  28. Patterico, here’s a summary of the state of Florida law on the subject. It seems that this ruling means the prosecution has to be very careful not to portray Martin as an innocent; the moment they (or any witness they put up) does so, the door gets opened wide.

    Milhouse (3d0df0)

  29. Marijuana use wouldn’t make Trayvon Martin aggressive and paranoid, because mariijuana doesn’t do that, but participation in criminal activities, might.

    Also if he was arguing with people that night, or just had a history of getting into fights, it’s semi-relevant.

    Sammy Finkelman (d22d64)

  30. What’s been said is that George Zimmerman was afraid that Martin might find the gun – in fact he’s been quoited indirectly as saying Martin did spot the gun and threatened to kill him with it.

    And GZ was losing the fight.

    It’s also pretty clear that GZ could not have caught TM.

    Sammy Finkelman (d22d64)

  31. It seems likely to be necessary to introduce those facts, to me. The prosecution’s version of events is that Zimmerman confronted Martin in some way, and then a struggle “ensued.” They don’t claim that Zimmerman started it, but I assume they’ll imply it. The fact that Martin was likely to cause that struggle to “ensue” based on previous actions seems pretty relevant to the issues at hand.

    As far as I can tell, who started it is almost the whole of the issue. There’s clear physical evidence that Martin was shoving Zimmerman’s head into the pavement when he was shot. I’m not sure if it’s possible for Zimmerman to have done anything that would justify that, other than threatening to shoot him, but if Martin overreacted and attacked Zimmerman then Zimmerman would be in the clear. Past evidence that Martin was likely to overreact in a violent was seems relevant.

    Rob (aefa16)

  32. Mil house,

    That’s a very helpful link. It appears Florida case law limits what the judge will allow in court about Trayvon’s prior bad acts, because Zimmerman didn’t know Trayvon and thus wasn’t aware of his prior acts. As Patterico explains, however, that could change if the prosecution or a witness claims Trayvon had a peaceful character and thus opens the door to reputation evidence.

    My guess is the judge will allow some latitude to the prosecution since Trayvon is dead and can’t speak for himself. But this is a self defense case so, ultimately, one participant had to be the aggressor. It’s the jury’s job to decide who that was. The evidence that Trayvon was aggressive is relevant to that decision. Frankly, the issue might not be whether it’s relevant but whether it’s too inflammatory.

    DRJ (a83b8b)

  33. Having said that, I suspect the prosecution will be very careful not to talk about Trayvon’s character and only talk about what he did that night. Since it’s primarily Zimmerman’s testimony that makes Trayvon look bad, the prosecution can focus on attacking Zimmerman and not open the door to evidence of Trayvon’s prior bad acts.

    DRJ (a83b8b)

  34. I don’t know about Florida, but the federal cases take the position that when Rule 405 says “essential element of the defense” it means that as a matter of law the defense cannot be proven without the evidence. Since self-defense can be established without character proof (it generally is presented without character proof), character of the victim is not an “essential element” of self-defense. See e.g.:

    “Bordeaux argues that the district court should have also permitted testimony regarding specific acts in order to demonstrate Saupitty’s and R.F.’s violent character. Rule 405(b)’s allowance for the admissibility of specific instances of conduct only applies in cases where the “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Fed.R.Evid. 405(b). Thus, since “a victim’s violent character is not an essential element of … the defense of self-defense,” such prior acts testimony was not admissible in this case.”

    U.S. v. Bordeaux 570 F.3d 1041, 1050 (C.A.8 (S.D.),2009)

    Tim Baughman (23a43b)

  35. Marijuana use wouldn’t make Trayvon Martin aggressive and paranoid, because mariijuana doesn’t do that

    You’re being sarcastic, right, Sammy? If not, Google “Rasta ganja machete” and also the etymology of the word “assassin”.

    nk (875f57)

  36. I suspect that this is more a matter of timing than anything else.

    Whether Zimmerman actually presents a “self-defense” claim or not is something that won’t be known until the defense case.

    I think what the Judge is preventing is an effort by the defense to dirty up the victim without ever putting on the evidence.

    All she has done is to say that the defense can’t mention it in opening statements, since there is no basis at this point to determine that the victims past history will be relevant what happened. But, once the prosecution attempts to portray Zimmerman as the aggressor — which they pretty much have to do in order to carry their burden — then the defense will be entitled to rebut that evidence by showing Martin was the aggressor. That will necessarily come in the form of testimony by ZImmerman.

    Once Zimmerman’s testimony comes under attack on cross-examination, that will likely open the door to evidence of Martin’s prior history that would corroborate Zimmerman’s testimony that Martin was the instigator of the confrontation and the aggressor.

    Until that issue is squarely presented, Martin’s past is not relevant from a legal standpoint.

    Remember, a trial starts as a blank canvas. It doesn’t begin based on everything that has been reported by the press. Until the picture on the canvas begins to come into focus, there are limits on what is relevant.

    shipwreckedcrew (ff598b)

  37. I have serious qualms about the judge in this case already. I’ve noted on other threads that, as far as I can tell, the best defense summary I’ve seen is the prosecution’s case.
    Since Zimmerman and Martin were strangers to each other, neither could know of the other’s history of benevolence or violence. But if the prosecution wants to make a case that Zimmerman has a hot temper (some slight evidence thereof) or is racist (none at all in public view), then I would say that opens the door to Martin’s history of aggression.
    Marijuana use may mellow most people but it’s not a universal response. Marijuana use is bad for judgment and inhibitions; if Martin was impaired, that may have tipped him to pursue Zimmerman rather than disengage and leave the area.
    If Zimmerman had been carrying openly, it’s possible that Martin would have decided no encounter would be a good idea. That’s under the bridge, though.
    Whatever the characters involved — and yes, the worst character may be the real victim — the physical evidence offered by the prosecutor shows that Martin significantly injured Zimmerman and was acting in a way that could have been disabling or lethal at any moment. People have been killed in assaults like the one Martin clearly made on Zimmerman. The prosecutor has offered no evidence at all that Zimmerman returned to following Martin after turning away, nor that Zimmerman called to Martin to attract him, nor that Zimmerman struck Martin or even spoke provocatively to him.
    Given this evidence of self-defense and absence of contradictory evidence, I’d have said the case should have been dismissed upon filing. Thus my worries about the judge.

    MT Geoff (a67ef4)

  38. Bordeaux argues that the district court should have also permitted testimony regarding specific acts in order to demonstrate Saupitty’s and R.F.’s violent character. Rule 405(b)’s allowance for the admissibility of specific instances of conduct only applies in cases where the “character or a trait of character of a person is an essential element of a charge, claim, or defense.” Fed.R.Evid. 405(b). Thus, since “a victim’s violent character is not an essential element of … the defense of self-defense,” such prior acts testimony was not admissible in this case.”

    U.S. v. Bordeaux 570 F.3d 1041, 1050 (C.A.8 (S.D.),2009)

    Comment by Tim Baughman (23a43b) — 6/3/2013 @ 9:36 am

    This brings up the possible catch 22 for the introduction of evidence – Based on behavioral characteristics observed by Zimmerman or by Martin, and based on prior experience, Maybe zimmerman observed specific behavioral characteristics that are relevant.

    P.S. i am not agreeing or disagreeing with the ruling.

    A corrolary in the prosecution side is that the prosecution was barred from presenting prior evidence of OJ’s abuse and jealosy in his murder trial.

    Joe (debac0)

  39. nk, an old white guy, looks in the mirror then goes back to his keyboard to inveigh against “creepy old white guys.” Pretty pathetic.

    Brian (9a69ac)

  40. Patterico, you mention that shooting Martin to death is considered by the prosecution the initial aggressive act. I fail to see how that makes sense since Zimmerman received his wounds before he shot Martin. Is the prosecution contending that battering someone about the head is not aggressive or are they going to claim Zimmerman fell down after shooting Martin?

    You then theorize that Zimmerman’s “pulling the gun was the initial aggressive act” in the prosecutor’s mind. That assumes that Zimmerman pulled his gun following which Martin brought him to the ground and began battering his head against the cement. I suppose that is a possibility, but I, for one, would not tackle a man with a drawn gun and try to beat him up. I would probably try to run and hide in the dark, but that’s just me.

    Moneyrunner (40a5bc)

  41. Patterico, you mention that shooting Martin to death is considered by the prosecution the initial aggressive act. I fail to see how that makes sense since Zimmerman received his wounds before he shot Martin. Is the prosecution contending that battering someone about the head is not aggressive or are they going to claim Zimmerman fell down after shooting Martin?

    That’s why I amended my position immediately in the next comment. I hadn’t thought the first comment through.

    You then theorize that Zimmerman’s “pulling the gun was the initial aggressive act” in the prosecutor’s mind. That assumes that Zimmerman pulled his gun following which Martin brought him to the ground and began battering his head against the cement. I suppose that is a possibility, but I, for one, would not tackle a man with a drawn gun and try to beat him up. I would probably try to run and hide in the dark, but that’s just me.

    My guess is that this is the prosecution’s theory — and yes, you and I might behave differently.

    Patterico (9c670f)

  42. Apparently, per analysis set forth by others in this comment thread, there is case authority for treating specific acts differently from reputation evidence in the federal system and in Florida. Maybe there is similar case law in California, but I don’t see the basis for any such distinction in the California Evidence Code section I cited, which seems to treat both types of evidence similarly.

    Patterico (9c670f)

  43. Here in Ohio, we had a rape case where the “victim” wrote in her diary that she had consensual sex with the “offender,” and that was ruled inadmissable as the “victim’s prior behavior.”

    The conviction was overurned on appeal, but I believe the man spent about 5 years in prison for a false accusation of rape.

    True story.

    arik (02de93)

  44. I believe a thug got what he deserved and Zimmerman is paying the price to placate the race hucksters and the minority community.

    Jim (823b10)

  45. I believe the manner it would play out – at least according to the federal rules of evidence — would be that the prosecution would put on their case without suggesting in any way that Martin was a non-violent and/or passive person.

    It would be up to Zimmerman, if he takes the stand, to describe Martin’s actions when the episode began, and Martin’s actions just prior to Zimmerman shooting him.

    Up to this point, Martin’s past still is not relevant — Zimmerman describes Martin’s actions, and Zimmerman’s account is not yet challenged.

    But if the prosecution challenges Zimmerman’s account in cross-examination, it could ask questions which “open the door” to witness testimony about Martin’s past. But, it might challenge his account only on the basis that Zimmerman has told inconsistent versions, or that his statement isn’t consistent with crime scene evidence, etc.

    Since Zimmerman is the only person alive who can testify to what Martin did or didn’t do in the moments before he was shot, the prosecution will then have to make a decision about whether to try and undermine the self-defense claim by showing Martin to not have been a threatening person. The way to do this is with evidence of character for peace and being a law abiding citizen. This is where they would open the door wide to the prior conduct evidence of Martin.

    I doubt they will do that because their case is strongest as long as it stays focused on Zimmerman, and Martin’s character remains unknown.

    shipwreckedcrew (cf4db8)

  46. Comment by shipwreckedcrew (cf4db8) — 6/4/2013 @ 10:42 am

    thanks as always for sharing your thoughts.
    it seems quite reasonable the way you put it
    the problem is we have seen a number of things that were not reasonable already, so we are nervous whether the judge is doing something reasonable or stacking the deck againzt Z
    I guess we will see

    MD in Philly (3d3f72)

  47. Shipwreckedcrew 46,

    That makes sense to me. But I still don’t understand why a toxicology report might be banned. That is current information.

    DRJ (a83b8b)

  48. I thought the witness on the scene reported to police that Martin was on top of Zimmerman using tactics similar to MMA fighting, and beating Zimmerman’s head into the ground, and when this witness went to call police, he heard a gunshot.

    Dustin (303dca)

  49. Apparently this witness also heard Zimmerman begging for help as his head was smacking the pavement. That jives with the evidence (Zimmerman’s fractured nose and bloody back of head, as well as the blood on the scene).

    It’s hard for me to understand why they are prosecuting this case at all. Zimmerman should sue the Martin estate for the battery.

    Dustin (303dca)

  50. To a non-lawyer, trials seem to be about many things, except for a search for the truth.

    JD (20406c)

  51. Re 50-51: that’s a lot how I see the case.
    Reverse the polarity, I like to say. If Zimmerman were black and Martin were white, but all evidence otherwise identical, would we all be demanding Zimmerman’s charges be dismissed? I hope we would. Would Al Sharpton have gotten into the case? No, because he wouldn’t have seen a “brother” being mistreated by “the man”. But would any “white” leader have gotten into the case either? To go by history (OJ case, Tawana Bradley, etc), you would not have seen some “white community leader” demanding justice for “our brother.” You don’t see it now for George Zimmerman.

    MT Geoff (a67ef4)

  52. Gay and lesbian can be married today and it is a victory for this community ! There are so many reason to support this law !

    GAYIn (a60632)

  53. “objectively, the only relevant issues in the Zimmerman case involve what happened that night.”

    I see…so the prosecution can’t talk about Zimmerman’s past. Right?

    jon (3180fd)

  54. I don’t see how GZ’s past is relevant.

    JD (b63a52)

  55. His past actions would destroy the narrative that he’s a racist cracker; therefore, it can’t be mentioned – just as TM’s past would show he’s no tea-and-skittles choir-boy.

    askeptic (2bb434)


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