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.
