As happens with gratifying frequency, one of the Legal Insurrection commenters today made a great contribution to yesterday’s thread, “When Is Evidence of Your Attacker’s Character Admissible In Court?”
This particular comment was posted by “Edgehopper” (I could tell you his real name, but then I’d have to kill you–let’s just say he’s a real lawyer at a real firm), and was so exceptionally clear, succinct, and to the point I thought it was well worth re-casting as its own blog post. Indeed, I wish I’d thought of writing it myself, as it would definitely have been today’s “Law of Self Defense” post (except probably a bit less clear, lengthier, and more meandering).
Judge Brenda Nelson, Florida v. Zimmerman
That said, here’s Edgehopper’s take on the the legal grounds on which Judge Nelson could, theoretically, have properly excluded Trayon Martin’s cell phone contents from evidence (and I think he’s dead on):
There are four different grounds Nelson could have used to exclude that [cell phone evidence]: authenticity, hearsay, relevance, and prejudice. None should have applied.
Authenticity – The rule for authenticity is that the party presenting evidence has to present sufficient evidence that a reasonable person could conclude that the evidence is what the party says it is. It doesn’t have to be absolute proof, and it doesn’t have to be undisputed. The cell phone texts came from Martin’s cell phone, and were stored there in a password protected folder. That’s enough under Florida case law Andrew cited in earlier posts, and just under common sense. Nelson’s speculation that someone else could have used Martin’s phone to send the texts wasn’t remotely enough to justify exclusion; at best, it’s a weak argument as to the strength of the evidence.
Hearsay – A statement is hearsay if it is an out of court statement introduced to prove the truth of the statement. That isn’t the case with the fighting texts; they’re not being introduced to show that Martin was in a fight on a specific day. They’re being introduced to show that Martin had experience fighting. No hearsay there.
Relevance – as discussed elsewhere on this thread, the texts were relevant as circumstantial evidence that the man on top, who fought using an MMA style ground and pound technique, was Martin–and to rebut the same kind of evidence that it was Zimmerman
Prejudice – There’s a catch-all rule that says that evidence may still be excluded if it is more prejudicial than probative. For example, suppose that in a trial for theft, the witness identified the thief as wearing an unusual pair of orange and green Nike sneakers. The prosecution then calls as a witness a women who will testify that when the defendant raped her, he took off a pair of orange and green Nike sneakers. Somewhat relevant to an issue in the case but wildly prejudicial, and should probably be excluded.
It takes that kind of extreme scenario for this rule to apply, though. It certainly can’t apply when the judge, as Nelson did, allows the exact same type of evidence to come in on the other side–this rule is entirely about fairness.
So the evidence should have come in, whatever basis Nelson thought she had for excluding it.
Thanks to Edgehopper for letting me repost his comment as a blog post (and getting me out from under not having had prepared anything to post today).
–Andrew
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Comments
When Ms. Jeantel testified that Trayvon did not start the fight because Trayvon would have told her, didn’t that statement open the door to the question: Why would you say that? Has he told hou before?
Short answer: Yes, but it wouldn’t have been a good idea.
Rachel Jeantel’s testimony was admissible under Florida’s equivalent of FRE 701, allowing opinion testimony by a lay witness if it was based on her perception, is helpful to an issue in the case, and isn’t based on technical or specialized knowledge. MOM could certainly have cross-examined her about her opinion.
However, remember the old adage that you should never ask a question on cross if you don’t know the answer. Here’s how that cross would go:
Q. You said Trayvon would have told you if he was going to start a fight. That’s because he’s told you about being in a fight before, right?
BDLR: Objection! [note: for inadmissible character evidence]
Nelson: Sustained.
Q. Why do you believe he’d have told you that?
A. Because he told me everything.
Q. Is it because of any previous incident?
A. No.
Not very useful. And you can’t prove irrelevant specific acts just to impeach, even if MOM had such evidence, so he hasn’t gotten anywhere by raising the question, and looks a little bullying in the process.
Thanks for all the expertise in this post.
One question, though. Is it clear that in this circumstance — with Ms. Jeantelle as the witness — you should be playing against your opponent’s best move? Being risk averse, I mean.
Let’s stipulate that it’s a minor loss for defense on your scenario, which has her giving the most clever answer. But she’s a loose canon, and some true things she might say would be major wins for defense. (If she fall into the trap by saying or implying that Trayvon was a fighter.)
I wonder if this isn’t an exception to the old adage.
If Zimmerman had a much worse case, perhaps. You generally don’t want to take chances when you’re winning, and MOM was winning. Save the risky cross for desperate cases.
Mr. Edgehopper if I may ask a simple question about the gun evidence.
( I know they weren’t asking for it at that moment. )
Since those statements show that Trayvon Martin was trying to obtain a gun, and there were admitted statements by George Zimmerman that when Trayvon Martin saw the gun TM reached for the gun, would not those statements be admissible because they corroborate GZ’s statement? ( Possibly the theft incidents would have to also be admitted. )
No–not in this case. It’s a real stretch, given the facts of this case, to argue that Martin went for the gun to steal it, which is what you’d be trying to show a motive for with the texts. It’s also more likely hearsay in that case, because you are introducing texts saying “I’m trying to get a gun” to show that Martin was trying to get a gun.
If Dr. Bao had done the autopsy correctly, everything else would be moot. What is a sad day is that Dr. Bao (who can remember nothing), never took the proper evidence from under trayvon martin’s nails. And, even if he thinks he saw bruise marks on trayvon’s hands, he could mess this up without running foul of any laws.
The judge is a jackass. And, so is the governor of the state of Floriduh.
The judge also did not allow O’Mara to strike one of the 6 jurors. Instead, the judge said the juror stays. As if there wasn’t enough evidence that she was going to be fair.
The good fortune is five out of the six women really did apply the rules of evidence, to all the lack of evidence that it took 4 terrible attorneys to “present” for the state.
No one gets in trouble.
Ahead? George Zimmerman’s wife goes on trial in mid-August, because she didn’t know how much money strangers had sent in to help George Zimmerman’s defense.
Then, of course, we’ll probably have to wait two years … or whatever the length of time is … for the Martin Comedy Show to sue George Zimmerman and his wife for real money.
More of a threat if the Zimmerman’s find a way to support themselves. Or someone pays them for their story. But the future doesn’t look bright.
One thing I do know. trayvon is not a saint. He was a kid who got suspended (for the 3rd time) from school. And, he was known to “like to fight.” And, I’m sure he thought Zimmerman was a tempting target. For this error he deserves a Darwin Award.
Maybe, too, the fears at least sybrina may have, that the contents of trayvon’s cell phone “falls into the public sphere, her life as a paid speaker could diminish.
As to da’ law; the only reason people call the cops when their property’s been vandalized, or burglarized, is to get a “report number.” Which then allows for an IRS deduction. (But this doesn’t work if you’re a republican. Or a member of a Tea Party.)
The process is the punishment.
Once again, for all of the insightful and explanatory information. To both you, Mr. Branca, and the great commenters here at LI.
Just one question, why was so much honesty, integrity, knowledge and common sense, similar to what we’ve read in these threads, outside the courtroom, but not inside? Well, except for West and O’Mara…
Judges do amazing things. One of my favorites was walking into court during a trial to discover that the judge and plaintiff’s counsel had, together, reviewed and made the selections of what video-tapes would be shown to the jury. They did not request any input from defense counsel.
A friend told me this story just today…
He appeared before a judge to get a default judgment (which you get when nobody answers the lawsuit AFTER you have made personal service, generally).
The judge asked if my friend had noticed the default hearing.
He had to read her the rules that say that a defaulting party essentially has no right to be noticed of anything after they have notice of the lawsuit but fail to answer.
I rolled on the floor.
How doesn’t that go directly to the judicial conduct commission (for the judge), and to the bar (for the lawyer)?
Back in the 1970’s a truck driver who was delivering TV sets, came back to see that the back door of his truck had been pried open. And, a burglar was inside, attempting to steal a television set.
The driver, immediately locked the thief into his truck, and drove to a police station. Where he went inside to report the crime he stopped. And, he had the perp behind the truck’s back door.
“Quick” said the cop! “Drive away and let him out, or he’s gonna sue ya.” The perp would sue, saying he was inside only to relieve himself of pee. And, he got kidnapped.
So, the driver released the perp. But for this story to end, he said “next time I’m just driving to a local bar. And, then? Justice would be delivered. And, the perp would have to find his way home, crippled.
Well done, Edgehopper.
Though I realize there are theories as to why Nelson seemed to be so prosecution-leaning, I’m just so thankful the jury saw the light. Especially after hearing the irrational thought process of juror B29….Zimmerman “got away with murder”. “It’s hard for me to sleep; it’s hard for me to eat because I feel I was forcefully included in Trayvon Martin’s death.”
Gimme a break.
Actually the juror did not say GZ got away with murder. What happened was that Robbin Roberts asked her if she thought GZ got away with murder, and in agreeing she repeated the question.
That is one reason why leading questions are generally not allowed on direct examination.
I think juror B29’s comments must be examined in the context they were given (in response to a leading question in which she repeated back the first part in her answer), as well as the misleading way the interview has been edited. Different versions of the interview have juror B29 giving the same answer to different questions.
It will be interesting to see the un-edited version of her interview.
I agree, 100%. Since when did we start assuming that the MSM is pure of heart and that everything they’re feeding us is true unadulterated fact?
As Professor Glenn Reynolds put it: THEY KEEP DOING THIS STUFF: ABC’s Misleading Edit of Juror B29. “It’s like you can’t trust journalists to report the news rather than manufacture it.”
Andrew Branca, how about your thoughts on the comments of the juror B29 … please?
I don’t think I can put it any better than Mark O’Mara did on his legal blog:
http://is.gd/R8ziNs
–Andrew, @LawSelfDefense
Thank you!
MOM is a class act!! Thanks for the link.
And you would be correct.
Thank you for the link Andrew.
Like George Zimmerman, Juror B-29 comes across as a salt-of-the-earth American hero. It gives me hope.
IMHO we seem to share an instinct for retaliatory homicide, but retaliation plus just a little more to make the point: don’t mess with us. Conversely, homicide it seems can awaken an instinctual terror that reciprocal retaliation can get out of hand and overwhelm … so sometimes we fear it is best not to engage in homicide to begin with, whether justified or not.
Juror B-29 seems to fall in the second camp. OMara and West chose well.
Hi Andrew, either the link is broken or we’re all trying to get there at the same time. 🙂
As for the juror, she said:
1. The case was just a publicity stunt.
2. There was no evidence to prove Zimmerman committed murder and they followed the law, so he was found not guilty.
3. Zimmerman murdered Martin because he shot him.
Rachel Jeantel can rest comfortably knowing she wasn’t the most ignorant person in court.
Maybe I’m missing something but it seems to be a very tenuous thread holds our “legal system” together anymore.
A worthless case, a brain-dead prosecutorial team, a “dream team” defense team and… what happens next time when the case isn’t such a slam dunk?
Responsible and guilty are two different things, but most people equivocate on meanings of words. Zimmerman was responsible for killing Trayvon Martin, but he was not guilty of killing Trayvon Martin. So I didn’t like his lawyer’s response.
The ABC video yet again repeats the falsehood that GZ was told to stay in his car.
I almost gagged on O’Mara’s comment that “Maddy” was an ideal juror; She was typical of female jurors, perhaps, but not an ideal juror. I believe a male juror would have arrived at a not-guilty verdict within the first 5 minutes of deliberation, but “Maddy” and the others had to anguish over their feelings for several days. Is it supposed to reassure us that these woman were ultimately unable to find a legal reason to justify their feelings that Zimmerman was guilty of “something”?
With all due respect, “that’s retarded, sir.” Look at the number of men in the MSM and on the internet who are STILL getting it wrong. Y’all are no more consistently logical or rational as a class of jurists &/or trial observers than we are.
With all due respect, it was women voters who gave us Bill Clinton and Barack Obama and forced GW Bush into advocating “Compassionate Conservatism”. I’ve read Men are from Mars and Women are from Venus and believe every word of it. Men and women truly do think differently.
I know several women who think rationally, but have come to believe they are in a very small minority. I’m sure you’re one of the rational ones yourself or you wouldn’t be here.
I thought Patterico put it well, too…
“Knock, knock. Who’s there? George Zimmerman. George Zimmerman who? You’re really not that bright or well informed, are you?
In other words: Looking for clues to our country’s racial divisions from people so minimally informed that they made it onto this jury is not exactly a recipe for enlightenment. Giving Delphic props to someone who initially voted for murder on a case this weak is not my idea of a good plan either.
At least she followed the law. I’ll give her that.”
Rags that sounds like the knock knock joke that Don West should have told.
Yeah…Why not just insult the entire jury with your opening statement
[…] to do so. Let alone what we now know about their son’s character – evidence that was illegally withheld from the Jury. Forgiveness is not theirs to […]
Andrew – next post request :
Had it gone the other way, what points, rulings, etc, would the appeal and reversal or re-trial (which ?) be based on, and why ?
Haha, you must think I’m a man of leisure. Hard enough to follow what’s actually happened, just don’t have time to speculate at length as to what might have happened had something else happened. 🙂
Clearly any guilty verdict would have been non-survivable on appeal.
Clearly George Zimmerman would have been non-survivable in general population while waiting the couple of years for his appeal to process.
I’m just glad it didn’t go that way.
–Andrew, @LawSelfDefense
maybe a collaboration with other lawyers here?
the grounds for appeals stuff based on the rulings seems to me to be a pretty involved subject. Especially if you throw in the prosecutor decisions that stated it all.
could be some interesting and thoughtful threads.
Heh. Would be an interesting thought experiment, but there is the minor matter of us attorneys needing to, you know, put food on the table… 😉
well yeah LOL I wasn’t meaning writing a treatise or anything though.
just basic stuff which opens up questions which others could answer.
it seems to me (not a lawyer and didn’t stay at holiday inn) theres a lot of stuff in this trial that was purposely tossed and/or bypassed just to appease people and benefit a tyrannical prosecution team. And I think theres a lot of interesting topics buried in this proceeding if that makes sense. stuff that really had not happened before, or if it did not at this level.
because at some point, now that a precedence has been allowed, these prosecutors will try it again and succeed. and that frightens me.
not sure I am putting my thoughts down well though, lot of narcotics (all legal) in system right now.
I could tell you his real name, but then I’d have to kill you
***********************
would you recommend a good self defense lawyer prior to this though? HAHA 🙂 🙂
If I were actually a self defense lawyer, I’d have asked Andrew to publish my name! But my actual specialty is IP litigation. But evidence law is pretty universal to all forms of litigation.
Yeah, the rules of evidence are the rules of evidence. No real difference when I’m trying a divorce versus when I’m trying a criminal case.
This is an interesting nugget. B29s lawyer was the prosecutor of Zimmerman in his 2005 AOLEO case. His office in Kissimmee….in Osceola Co….one full, large county away from Seminole. Very interesting no?
I could very well be wrong about this, but at present I don’t understand why Martin’s texts were not inadmissible hearsay. Here’s the commenter’s argument:
“Hearsay – A statement is hearsay if it is an out of court statement introduced to prove the truth of the statement. That isn’t the case with the fighting texts; they’re not being introduced to show that Martin was in a fight on a specific day. They’re being introduced to show that Martin had experience fighting. No hearsay there.”
Now let me try an example. A building collapses and injures the plaintiff, and the defendant-architect’s defense is that he’s not a architect, and doesn’t even know how to design a building. To rebut this defense, the plaintiff seeks to admit the defendant’s out-of-court statements:
a) I designed the Empire State Building.
b) I designed the Chrysler Building.
When the defendant objects on the ground of hearsay, the plaintiff argues:
“Your honor, I’m not offering these statements for the truth of the matter asserted – it doesn’t matter who designed these particular buildings – I’m just offering them to show the defendant’s general ability to design buildings.”
Plaintiff’s seems disingenuous, because he actually is offering these statements for their truth. Because: The only way these statements can be relevant to the proposition that the architect knows how to design buildings, is if they are true.
Just as: The only way Martin’s texts along the lines of “I kicked that guy’s ass yesterday MMA style” could be relevant to the question of whether Martin was a skilled fighter (and thus more likely to be the guy on top in the conflict with Zimmerman), is if those statements are true.
So it looks like Martin’s texts were offered to prove the matter asserted, and thus were inadmissible hearsay, unless someone can find an applicable exception to or exemption from the hearsay rule.
Now someone tell me what mistake I made.
Regarding your architect hypothetical, the defendant’s out of court “I designed …” would be admissible, as out-of-court statements of a party-opponent are specifically defined as non-hearsay in the FRE and state rules based on the FRE.
As for texts on Martin’s phone alluding to a history of fighting: It’s a close question as to whether they would be admissible hearsay.* I think the bigger problem from an admissibility standpoint is the evidence of character issue that Andrew discussed in his prior post.
*I don’t think it’s necessarily hearsay and I would argue it’s not being introduced for truth of the matter asserted – that Martin got into a tight on the day of the text – but the counter argumentis that I am seeking to introduce it for a different truth asserted by the text – namely, that Martin had a propensity for fighting, particularly MMA-style.
*”argument is,” not “argumentis.” Dang Kindle.
You’re right that in a civil case, the defendant’s statements would be admitted as a party-admission (if it isn’t excluded as inadmissible character evidence), but that’s irrelevant to my argument because they would still be hearsay – out-of-court statements admitted for their truth – saved from exclusion by an exception to the hearsay rule.
And as you state, that exception doesn’t apply in the Zimmerman criminal case, because Martin isn’t a party (rather, the State of FL is.)
@smokefan:
No wrong again. If you are offering the texts to show a string of fights actually occurred leading to the inference of a “propensity for fighting” then you ARE offering them for the truth of what is asserted–that he actually got into the string of fights (thus justifying the reasonable inference of his propensity to fight in the future).
It’s pure hearsay. No exception.
If you want to prove that TM had a reputation in the community for fighting, or a propensity for fighting (assuming this is even permissible under FL law), you have to do it by admissible evidence–i.e. live witness testimony or if not then it has to be something that comes in under a valid hearsay exception.
The way a defense attorney would actually try to go about doing this would be (for example) send a Private Investigator or team of them to get statements from everyone in TM’s past life hoping to get a few that established TM’s “reputation in the community for fighting.” You then put them on the witness stand (if the judge allows it) and at least there’s no hearsay problem. It may be ruled inadmissible for other reasons, i.e. a victim’s reputation as a fighter is not admissible in a self defense case (???), but it’s not excludable as hearsay.
If you think it’s unfair that a dead person’s texts have to be excluded there’s a good reason why, because he can’t be cross-examined. But it works both ways: Would the defendant want the police putting Trayvon Martin’s cell phone texts into evidence if those messages depicted a very peace loving individual? Think about it, that would be pure inadmissible hearsay too. So it works both ways.
OK, this shows how tricky hearsay can be.
In your example, the plaintiff’s attorney can truthfully assert…
“Your Honor, we are not introducing these statements for any truth asserted. We know these statements are false, as the D was not born when these buildings were designed.
These statements show that the D was representing to others that he was a highly qualified designer of major building projects.”
Plus, they come in anyhow as a statement by a party opponent.
But I kinda had to scratch my head, too. The Trayvon texts would have to be VERY carefully argued to get past a hearsay objection. Trayvon may have been bragging, and no part of what he said was true. Ergo, you try to bring them in as evidence of his motive to attack that night, to earn some creds behind the image he was projecting via his bragging.
I’d say 6 of 10 judges I can think of would knee-jerk to sustaining a hearsay objection, because they are 1) not very good lawyers, and 2) they have to make a quick decision. They like staying in the ruts.
@Ragspierre:
Sorry but I don’t think Trayvon’s “motive” is a material issue in the case, UNLESS GZ had knowledge of that motive, so you’re back in the same place. The texts are pure inadmissible hearsay.
What I guess you are trying to say is the texts could be admissible not to show that Trayvon actually was a fighter, but rather that he wasn’t a fighter, (the truth of the matter asserted),he was a liar and a coward who made up stories about fighting.
So let’s say the argument is we aren’t seeking admission of the texts to prove he’s really a fighter, we’re seeking admission of the texts to prove he lied about being a fighter. Logically that STILL doesn’t get you there since that’s simply ordinary impeachment but impeachment of who? No one.
But assuming that we specifically tell the judge we aren’t offering it to show he actually fought, merely that he bragged about fighting, how does it prove anything at all about his motive to attack GZ? Proving that someone told lies about fighting people in the past isn’t probative of a mental state to ACTUALLY attack GZ. And even if it was–and I think you might need a psychiatric or psychological expert to even be able to argue that one to the jury–how does it prove that just because TM said these things for whatever reason on prior occasions that was his motive to beat in GZ’s head on that particular night?
The reality is that the text messages ARE being offered to show that TM is a violent fighter, and that’s pretty obvious. They ARE being offered to “prove the truth of the matter asserted” and really for no other reason.
Now I guess if you’re very clever and you think you have a kind of dumb judge maybe you can slip this stuff past her.
Key word: ideation.
‘Nother key word: latency.
Without getting too esoteric, you try to show the jury what Martin was holding in his mind by what he was projecting to others. The old “We don’t do what we haven’t thought about” saw.
And, from my POV as a trial lawyer…and not as a logician…I just want those ideas or images or whatever in my jurors minds. I will get them in, if I can, and massage the them later.
@ragspierre–I fully agree it would be a good defense strategy to get those texts in front of the jury–to prove latency or frame of mind or habit or character or whatever you want to call it–but the question is whether there’s a basis to admit them, and/or whether Nelson erred in excluding them. So far no one has really provided a solid basis in the evidence rules why Nelson has to allow them in. So if it’s marginal then under Rule 403 she has the discretion to exclude them as possibly confusing to the jury.
Yeah, I never took that on. I’d have to know some damn thing about Florida case-law, and I 1) don’t, and 2) don’t wanna nearly badly enough to change that.
I was just playing with Quixotic77’s hypo.
Ahhh… imagine, for a moment, a world WITHOUT hypotheticals.
Surely the texts should be admissible, not to show that he was a fighter, but that he saw himself as a fighter.
@Quixotic77: TM’s texts ARE inadmissible hearsay. Andrew got this one wrong.
There is nothing special about cell phone texts from a person who doesn’t testify in court, anymore than if it was a letter, a diary journal, or anything else in writing. For it to be admissible it has to come in under an exception to the hearsay rule and Andrew hasn’t pointed out an applicable exception.
Let me try to respond to your hypothetical:
“Now let me try an example. A building collapses and injures the plaintiff, and the defendant-architect’s defense is that he’s not a architect, and doesn’t even know how to design a building.”
–I’m not really sure if being unqualified/a phony architect would be a defense to a case like this, but…..let’s see where this leads…
“To rebut this defense, the plaintiff seeks to admit the defendant’s out-of-court statements:”
–WAIT. STOP. A critical difference right away is that the defendant pseudo architect is a PARTY OPPONENT and most likely a TRIAL WITNESS in the case. I’m assuming this is a civil case. If it’s a criminal case (like TM/GZ) then the defendant pseudo architect is still a party-opponent. As such any out of court statement even if not sworn of any kind (if properly authenticated) is admissible in evidence against him for the truth of the matter asserted, or for impeachment.
This is NOT the case with TRAYVON. He’s not a party to the case. So his out of court statements i.e. cell phone texts are NOT admissions of a party-opponent. Furthermore he is not a WITNESS in the case so his out of court statements can’t even be used for impeachment except in very limited circumstances. The only way those texts get in is if they fit squarely within the four corners of a specific hearsay exception.
“a) I designed the Empire State Building.
b) I designed the Chrysler Building.
When the defendant objects on the ground of hearsay, the plaintiff argues:”
–There is no hearsay objection if the architect is the defendant whether or not he testifies because he’s a PARTY-OPPONENT and his adversary can offer into evidence anything he’s said or written as substantive evidence.
““Your honor, I’m not offering these statements for the truth of the matter asserted – it doesn’t matter who designed these particular buildings – I’m just offering them to show the defendant’s general ability to design buildings.””
–Not even necessary. The architect’s statements are admissible as party-opponent admissions both for the truth of what is asserted and/or for impeachment. The weight given to them is for the jury to decide–whether the architect was being truthful or not in making the statements is a jury issue–but they are certainly admissible, for whatever they might be worth.
“Plaintiff’s seems disingenuous, because he actually is offering these statements for their truth. Because: The only way these statements can be relevant to the proposition that the architect knows how to design buildings, is if they are true.”
–If the architect is not a party to the case and if the architect is not a witness in the case, the only way his out of court statements are admissible (either for their substance or perhaps as impeachment) is if you can point to a specific hearsay exception (in the case of using them for their truth) or if for impeachment as extrinsic evidence to impeach the testimony of a testifying witness who is not the architect.
For example if one of the other witnesses testifies that he did or didn’t do something because he THOUGHT the architect was qualified, those statements might be admissible but ONLY for the purpose of showing the basis of the testifying witnesses’ state of mind, NOT for the purpose of showing that the architect actually designed those buildings. And therefore whether or not the statements are admissible for that “limited purpose” will depend upon whether the state of mind of the testifying witness is relevant and probative of any material issue in the case. And not to confusing to the issues. And frequently such extrinsic evidence is not particularly relevant or probative, so a judge will allow some of it but will put limits on it so the case doesn’t go off in the weeds.
“Just as: The only way Martin’s texts along the lines of “I kicked that guy’s ass yesterday MMA style” could be relevant to the question of whether Martin was a skilled fighter (and thus more likely to be the guy on top in the conflict with Zimmerman), is if those statements are true.”
–But if they’re offered to prove that Martin WAS a skilled fighter, they’re still SIMON PURE HEARSAY. Martin isn’t a party to the case, he didn’t testify, they’re not excited utterances, dying declarations, or some other hearsay exception. About the only thing they would be admissible for would be to show GZ’s state of mind/fear but then only if GZ KNEW about the texts, which he clearly did not. Or, if Jeantel or Ms. Fulton tried to claim TM was a peaceful guy, they might be admissible but NOT for the truth of what they assert–they would just be admissible to show that the testifying witnesses might be lying or might not know everything about Trayvon Martin. But of course that’s cutting the hairs way too fine and the jury is going to hear it as being that TM WAS a fighter despite any limiting jury instruction. And that’s why Ms. Fulton was very very careful not to characterize Trayvon as a peaceful person.
“So it looks like Martin’s texts were offered to prove the matter asserted, and thus were inadmissible hearsay, unless someone can find an applicable exception to or exemption from the hearsay rule.
Now someone tell me what mistake I made.”
–You didn’t. You’re correct. O’Mara’s reasoning was that “If the state can put in evidence about GZ’s fighting training then I can do the same thing about TM’s.” But that logic fails in terms of evidence admissibility because the State questioned live witnesses about it, in court, subject to cross examination, with direct knowledge of GZ’s MMA training–his actual MMA trainer. Additionally since GZ was a party-opponent as the defendant, the State could have readily placed any of GZ’s cell phone texts which talked about his wanting to beat down young black males into evidence as party admissions.
And in fact the State did put every one of GZ’s pre-trial statments to police into evidence. They were NOT hearsay because they were party-admissions even though GZ never testified at trial.
I really like your explanation. The only problem I have is that Judge Nelson seemed to rule against the defense because the texts/tweets/whatever weren’t authenticated. Of course, the defense countered by saying the prosecution dumped the info on them and they didn’t have time to do what was necessary to authenticate the information, which led to the Judge walking about on the arguments.
Anyway, with regard to the authentication, I believe the judge even went so far as to suggest that a 7 year old could have cracked the passwords (I believe there were two sets of security passwords to get into the “meat” of the data). While I agree with your assessment of the law and your explanations, I really didn’t agree with the way Judge Nelson ruled on the matter. If she ruled by way of your explanation, then I’m good with that, but if she is going to make up a scenario about someone else “possibly” sending the texts/messages…. well, to me, that’s irresponsible. She should be ruling on sound and solid understanding of the law, not some fabricated, cockamamie, story any 7 year old could tell.
I agree that authentication isn’t really the problem, although that’s not to say there isn’t a legitimate question as to whether the defense could establish authenticity. Most likely there is case law in Florida which addresses how material like cell phone texts are supposed to be authenticated (although I have no idea). I’d imagine you’d need to go through some rather laborious process of getting a custodian of records from the cell phone provider to lay a foundation.
But then (going to the judge’s point) how do you actually prove (sufficient to authenticate and allow into evidence) that the texts on Martin’s phone were actually sent by Martin?
Remember this is not a big deal if the texts are only going to be used as extrinsic evidence to impeach some other witness, because the judge can allow impeachment by extrinsic evidence as a discretionary matter, and pure impeachment evidence is not being offered to actually “prove” or “disprove” any material fact in issue.
But the problem is the defense isn’t trying to use the texts purely as impeachment. They are trying to use it to prove (or disprove) a substantial element at trial–that is, state of mind of TM, or GZ’s reasonableness in defending himself, or something of that nature.
They want to use texts by a non-testifying individual to prove the non-testifying individual’s character/habit/state of mind/propensity to fight or attack on the night of the shooting.
The only possible hearsay exception that has been noted as perhaps applying is statement against interest. However it’s not clear those texts are valid statements against interest (for a couple of reasons that have been discussed) for purposes of that evidence rule (would probably depend on Florida caselaw).
But even assuming they are statements against interest and overcome a hearsay objection, there’s still the issues of 1) whether the texts are sufficiently probative of what the defense seeks to use them for–i.e. that they tend to disprove or prove that TM was more or less likely to have been aggressive towards GZ on that particular night & 2) whether or not even if relevant, whether under Rule 403 the texts are likely to confuse the jury or perhaps result in a situation in which a lot of court time is wasted battling over the significance of the TM text messages.
Because then you might have a situation in which the prosecution is allowed to present all kinds of witnesses (i.e. family members) rebutting the inference the defense wants the jury to draw from the text messages. Then the defense would present all kinds of evidence and witnesses to rebut the rebuttal. And then the trial becomes all about the text messages and whether or not TM was a person who did or didn’t like to fight rather than about whether GZ killed him in self defense. And the judge is clearly allowed to use discretion to regulate this kind of thing.
Now the defense may have been responsible for at least some of this because its motion didn’t restrict the texts it wanted to admit to just the fighting texts. They also asked to admit the marijuana texts, the gun evidence, the suspension from school evidence. So when you put it all together the defense’s motion could be looked at just generally trying to attack TM’s character which I don’t think is permissible.
Had the defense request been more narrowly focused to ask ONLY for the texts about fighting rather than trying to get everything dumped in, then it’s a closer call. But because the defense motion asked for ALL of the negative stuff to come in, it makes it much easier for the judge to treat it just as one big character attack.
Rachel was never authenticated, either. She was allowed to testify. Just sayin’…
I think everything you say is right. It’s a pedagogical mistake to explain a real case with a hypothetical case of the same or greater complexity, but here it was also a logical mistake because of the key differences between my hypo and the Zimmerman case that you ably outline.
I should have just said Matin’s bragging-about-fighting texts were offered for the truth, because only their truth would make them logically relevant to the proposition that Martin got the better of Zimmerman in a fight – and then shut my piehole.
I tend to talk a lot as a method of thinking things out, but some of it is best confined to an interior dialog.
1) If the defendant’s name and signature are on the plans, it’s a reasonable inference that he was the designer and knows how to design buildings. He has a big uphill struggle overcoming such evidence.
2) “I don’t know how to design buildings” and “I am not an architect” are not synonymous statements. The lack of a license only means you aren’t legally allowed to practice, not that you don’t know the subject matter.
3) I don’t know why the plaintiff is even bothering with those statements. If the defendant didn’t sign the plans, why is he being sued? And if he did, why not present that as presumptive evidence that he also designed the plans?
Mark O’Mara’s blog puts it wonderfully.
My husband served jury duty several years ago in which the defendent was convicted of a felony that would require jail time, heavy fines, and the tag of felon the rest of the defendent’s life.
My husband did not discuss the trial as per instructions until the case was over and he was released from duty. I could see each day after he would come home from court how increasingly upset he was. After the trial was over, and the jury rendered their verdict, he was both relieved it was over, confident in the conviction, but at the same time disturbed at the personal responsibility he and his fellow jurors now owned at convicting this person.
Jury duty in these types of cases is not a piece of cake, especially for those who look at the evidence, know what is correct, yet know what the results of their decision is mean to all the parties involved.
The Martins have to have major regrets about their parenting of Trayvon, and have the grief of knowing that they can never correct nor make up for any of that. That knowledge will live with them forever, as will George Z knowing that he killed someone, regardless of how justified. Both parties in this event have lives that are ever changed. It is the outside vultures who use that grief, mostly from the Martins for their personal gain and pet projects that deserve no sympathy and nothing but scorn from all.
$ybrina Fulton and Tracy Martin have not shown any signs of regret over their lack of responsibility for the parenting of Traydemark Martin.
The family history, especially on $ybrina Fulton’s side is extremely interesting. It is worth looking up the case of Archie Johnson who is a direct relative of $ybrina. It is also worth learning a little bit about the person on the button who was Corey Johnson.
I saw just a few seconds of the interview and thought to myself “what an idiot – she’ll spend the rest of her life arguing her decision with every wannabe prosecutor and Trayvon sympathizer, with everyone who thinks she should have held out for murder …” … it also makes me wonder how the hell a judgment of law can be left to citizens with no apparent familiarity with the law, if after that trial someone can believe GZ guilty of 2nd degree murder.
We can’t be sure that everything that the juror said in the interview said was the truth. She vanished for a month at the same time as the Zimmerman trial. She is half black/half hispanic, a mother of eight in her mid thirties and a nurse. Does anyone really thing that her freinds, family, neighbors and coworkers would not put two and two together? And that they would all not blab her name?
You have to suspect that some of what she said was to protect herself from her associates.
True of all the jurors. ‘Is Sally still visiting her Mom in Iowa? She’s been gone a month…’
Is there any indication as to when (if) the sanctions hearings will resume? Also, there has been a bit of interesting speculation at the Conservative Treehouse that Rachel was not the girl that actually talked with Trayvon. I’m not asking about the later but will be watching for further developments.
I too would like to see the sanctions hearings resume. Especially since they stopped when Mr. “George Zimmerman is a coward for not taking the stand” was called to the stand and he said ” I am not going to subject myself to this.”
Sadly I don’t think it will be streamed.
Sorry Andrew but you blew this one. Here’s the reply I posted or one of the replies I posted to Edgehopper on the other thread where this was discussed:
@Edgehopper:
“To take another example, suppose one of the text messages said, “I fought this kid, mounted him, and ground and pounded him til he was out cold!” Admissible to prove that he mounted that other kid? Absolutely not. Admissible to prove a propensity for fighting? That’s inadmissible character evidence. Admissible to prove that Martin knew what the technique was? Absolutely.”
********************
And my reply:
No it’s not, for the same reason. You’re offering it to prove the truth of the out of court assertion that he WAS in a fight–and then from that fact, asking an inference to be drawn that he knew the technique.
If you’re not offering it to prove that he actually WAS in a fight, then there’s no inference to be drawn that he “knew the technique.” Because if it’s not offered for its truth there’s no factual predicate from which to draw the inference that he “knew the technique.”
Again you need to remember cell phone “texts” are no different from any other unsworn out of court “text”–no different from a diary, a letter, or any other sort of textual hearsay.
Probably the difficulty is that in most cases this kind of material gets admitted under some exception to the hearsay rule, such as business records or government documents, or it’s an admission of a party opponent, or used to impeach a witness who is actually testifying in court, or perhaps for its substance as a prior inconsistent statement.
In this case the only thing it might be usable for is as extrinsic evidence to impeach the testimony of one of the in-court witnesses such as Ms. Fulton. However she carefully avoided the issue of whether or not Trayvon was peaceful or a fighter. So there was nothing to impeach with it.
But even then the judge doesn’t really have to let the cross-examiner use extrinsic evidence to impeach a testifying witness, and most of the time they are very strict about doing so since it’s so easy to get off into collateral issues which aren’t really helpful to deciding the case.
“Hearsay – A statement is hearsay if it is an out of court statement introduced to prove the truth of the statement. That isn’t the case with the fighting texts; they’re not being introduced to show that Martin was in a fight on a specific day. They’re being introduced to show that Martin had experience fighting. No hearsay there.”
TM’s cell texts are simon pure hearsay. If they are admitted to show he had experience fighting, then of course they are being admitted for the truth of the matters asserted therein–THAT HE GOT INTO A BUNCH OF FIGHTS!
Wrong, wrong wrong. Sorry Andrew & Edgewater.
I agree with your analysis that the texts are hearsay. I think a hearsay exception would apply though: statement against interest. TM’s texts admit that TM hurt someone in a fight. Battery is both a crime and an intentional tort – hence, admitting to hurting someone in a fight is a statement against interest.
“Statement against interest” only applies w/r/t a witness who actually testifies in court.
Remember–TM isn’t a witness in the case and he’s not a party in the case. So most of the standard caveats and exceptions to the hearsay rule aren’t really applicable here.
The critical part of analyzing a hearsay problem is to focus on the “testability” of the out of court statement by the adversary to the party offering the statement.
In general out of court statements aren’t subject to cross-examination. Therefore in addition to any confrontation clause issues they’re not considered reliable enough to be admitted unless they fit into an exception.
Statement against interest made by a witness who testifies is considered reliable enough to be admissible as substantive (not just impeachment) evidence because the law presumes a person wouldn’t say something outside of the courtroom that is contrary to their own interest unless it was true. There are all kinds of glosses on what is against a witness’s interest of course, but that’s the general principle.
So assuming TM’s text messages are “statements against his interest” the problem is he never testified in court. So that exception doesn’t apply.
There are several exceptions to hearsay where the witness is “unavailable” and dead is clearly unavailable. The text messages don’t seem to meet any of those exceptions. One of the exceptions would be if it’s a “dying declaration.” That would be for example if the police arrived just as Trayvon Martin was about to expire and the last thing he said was: “I know I’m about to die. I can feel it! That cracker over there shot me!!!!” That statement would obviously be admissible as a dying declaration.
Similarly, the statements Jeantel attributed to TM over the phone are admissible as either present sense impressions or excited utterances.
Marco-
First off, you have the statement against interest rule backwards–they’re only admissible if the declarant is unavailable.
You have a point as to hearsay; it is the strongest argument for exclusion. However I don’t think it applies here because you don’t necessarily need the texts to be true for them to show that Martin had knowledge about fighting. It is a closer call. It’s also one the judge spent very little time on in oral argument, which is why judges are suppose to explain important decisions on the record–so the appellate court can understand the ruling.
Even if it’s hearsay, though, it should fall under the statement against interest exception, at Fla. Ev. Code 90.804. The texts where Martin says he beat up a guy for snitching are plainly against interest, showing criminal liability, and Martin is obviously unavailable (being dead).
I’d also point out that even if the texts didn’t come in, any school record of his fighting would as a public record.
@ edgehopper, I think our posts crossed, but you have to include the last sentence of the FL statement against interest rule, which EXCLUDES them from evidence if they expose the declarant to criminal liability UNLESS there is corroboration.
And of course it still has to be relevant to a material issue in the case.
The argument is that if TM had a propensity to fight it would be probative to the issue of self defense because it would tend to prove TM was more likely to have started an altercation justifying a self-defense response from GZ.
The problem though is that in that case it’s being offered as habit evidence. (it’s not really character evidence)
“Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.”
But the problem is there’s no evidence that TM had a “habit” of attacking people in that community. He liked to fight and bragged about fighting. But was it “habitual”?
I think “habit” evidence is more like “Trayvon regularly buys skittles from this particular store.”
You still can’t get the “habit” text evidence in w/o the corroboration. The rules seem to conflict with each other unless you assume that habit evidence has to otherwise be admissible non hearsay evidence. For example live witnesses who could talk about Trayvon actually getting into fights which would then corroborate the texts and would establish the habit evidence.
Clarification–Statement against interest ARE admissible if the witness is unavailable so if the text messages are considered statements against interest then they aren’t hearsay, EXCEPT for the last sentence, which is an exception to the exception. So the defense would need corroboration of the truth of whatever was in TM’s text messages about fighting to be admissible as a statement against interest, since they exposed TM to criminal liability and were being offered to exculpate GZ.
Without the corroboration it doesn’t look like the text messages are admissible even as statements against interest.
“c) Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.”
Marco – FRE 804, Statement Against Interests, would probably not work. The rule requires that the declarant be aware at the time of the statement that the words were against an interest.
The rule also requires the statements be against a pecuniary, penal, or proprietary interest. I suppose you could argue that Martin’s texts were against a penal interest, but that’s a stretch. It’s highly unlikely that Martin thought that his statements would ever give rise to some sort of criminal liability.
Two problems here. First, there probably was corroborating evidence of Martin’s fighting. But also, you have an interesting issue with the meaning of the corroboration requirement.
The purpose of the requirement is to exclude a statement of the form, “Yeah, Jim told me killed Steve, the defendant didn’t do it.” As a matter of policy, “exculpate” here seems to mean more than “supports a verdict of acquittal.” I’d have to do actual research on this tricky issue, but there’s a good argument that the corroboration requirement would not apply to a statement against penal interest used to show the identity of a person recognized by an eyewitness.
Marco’s arguments have merit. But there are exceptions to hearsay rules.
Self Defense cases are special, particularly when the victim is no longer available to be testified. The Defendant should not be penalized because the victim is not available. In a meritorious self-defense case conduct of the victim is at much on trial as the conduct of the defendant. When the victim is not available all that may remain to show the intent of the victim could be what is classically hearsay.
Florida’s mandatory self defense jury instruction reads:
Writings of the victim that show a propensity and skill in fighting may well have a highly probative value.
FL 90.803 creates a hearsay exception:
To all those who believe TM’s texts are admissible, what if one of those texts had said:
“I am going to my dad’s house tonight. I’m a little bit nervous cause dad told me about a guy named George Zimmerman who’s on the neighborhood watch who likes to stalk and harass young black males so I have to be very careful. Dad thinks this dude might have a gun too.”
If a text saying “I like to beat people up on a daily basis” is admissible from TM’s cell phone, then why isn’t the above text equally admissible?
What’s it relevant to? If introduced to show that Zimmerman stalked black teens or had a gun, it’s straightforward hearsay. If introduced to show that Martin believed Zimmerman to be a threat, I’m not sure what it’s relevant to except as a defense theory, to show that Martin was the aggressor (but you’d have to be an idiot to introduce it for the defense).
My hypothetical is relevant to TM’s state of mind on that night and it’s more directly relevant to his state of mind than any of what he actually texted, none of which talks about his state of mind on the night in question (whereas my hypothetical text does).
If state of mind evidence is admissible to show TM has an “aggressive” state of mind, then it’s surely admissible to show he has a “fearful” or “defensive” state of mind.
The point of my hypothetical is to show reasons why this kind of evidence is treated with skepticism by judges even if Nelson didn’t explain it correctly.
This is unsworn out of court “testimony” which wasn’t subject to cross examination and it doesn’t directly address any issue which the jury actually has to decide. TM’s state of mind is actually a collateral issue. GZ’s state of mind is what is directly at issue.
TM could have had the state of mind of the most peaceful person in the world on that night, but if his actions reasonably placed GZ in fear of death/serious physical injury, GZ is justified.
That’s the point of my counterexample. Showing via the texts that TM was a peace-loving person is objectionable not simply because it’s hearsay, but also because it’s either irrelevant or marginally relevant, and even if relevant, likely to confuse the jury and waste court time on a collateral issue.
By analogy the same thing applies to trying to show TM is an aggressive individual who likes to start fights. That state of mind may make it marginally or even significantly more likely that TM could have started a fight with GZ but it’s not really even circumstantial evidence that he actually DID start a fight with GZ on that particular night.
I’m not a lawyer, so I’m probably wrong, but my first thought in that example is why would the text be used instead of putting his father on the stand?
My second is that your example is a person’s talking about what a second person said about a third person, while the other is a person talking about himself.
The father could lie and you wouldn’t be able to use extrinsic evidence to impeach on a collateral matter. In other words, Tracy Martin could lie or deny and you would be stuck taking him at his word on the stand.
The court has the discretion to allow using the texts for impeachment purposes of Tracey Martin, but I don’t think he talked about Trayvon’s propensity to start or not start fights.
So basically even if the judge allowed it all the defense could do on cross with it is to ask “Were you aware of texts by your son that he liked to start fights?” and if Tracy Martin says “No I wasn’t aware of those texts.” That’s it. The problem is this is so likely to be misinterpreted or misused by the jury that it has to be addressed in limine and the judge cannot even allow the question to be asked in front of the jury UNLESS defense is able to make a pre-trial proffer that Tracy Martin DID know about the text messages. But again you only even get there if Tracy Martin, on direct, had testified about Trayvon’s propensity to start fights–which I don’t believe he testified to at all.
Your statements about the rules of evidence are on point. At first glance, there would be only two ways for the text messages to be admissible: (1) They were introduced as nonhearsay, meaning that they were not offered for the truth of the matter asserted, or (2) they fell within a recognized hearsay exception.
I think option (1) would probably be the best bet. As you mentioned above, there is not a readily apparent hearsay exception that jumps out (maybe FRE 803?). You did, however, neglect to mention the “catch-all” exception of FRE 807. 807 requires the statements to be “trustworthy” and “necessary.” Notice to the opposing party is also required. The exception specifically states that allowing the hearsay would be “in the interests of justice.” Although the exception is rarely used, here it could reasonably be argued that the texts fall within 807. There is certainly trustworthiness due to the fact that the messages came from Mr. Martin himself and were contained in a password-protected area of his phone. The difficulty would come from arguing necessity. In a murder trial (which I admittedly have NO experience with), I think it would be reasonable to argue that hearsay pertaining to the victim’s fighting prowess acumen would be necessary in making out a claim for self-defense.
In hindsight though, assuming Judge Nelson even properly sorted out the law, it would be highly unlikely that she would render such a deferential ruling to a defendant. So that leaves you with asserting nonhearsay. In this event, the Defense could allege that the statement is offered to show the declarant’s (Trayvon Martin’s) state of mind. Statements offered as circumstantial evidence of a declarant’s state of mind are NOT hearsay. FRE 803 also has a hearsay state of mind exception. In court, this logic is frequently used to show knowledge on the part of the declarant. For instance, if a declarant said “Billy broke the light,” that statement could be introduced to show that the declarant had knowledge that the light was broken. Applying this concept to the Zimmerman-Martin case, the texts could be used to show Martin’s knowledge of at-issue facts (fighting, drugs, etc.).
As briefly mentioned above, FRE 803, the present state of mind exception to hearsay, could also apply. It would be more of a stretch, but still possible. The point is, there are plenty of options to get the texts in.
@Professional Spectator: the catch all exception is not available if the object is to admit evidence directly in conflict with an existing rule which prohibits it. So you can’t use the catchall exception as an end-run around another rule.
In this case the statement against interest for unavailable witnesses is the clearly-applicable hearsay exception so you can’t use the catchall if it doesn’t qualify for statement against interest.
The last sentence in the rule for statement against interest specifically requires corroboration if the statement exposes declarant to criminal liability.
Since saying you like to and have beaten people up exposes TM to criminal liability and is offered to exculpate GZ, the rule requires corroboration to admit the texts for the truth of the matters asserted therein.
This last sentence really seems like something to prevent someone from saying that so and so (let’s say a dead person) admitted he committed the crime not me (i.e. the defendant is using this as his defense to blame it on a dead man) without corroboration. However it literally fits the TM situation too, even though it isn’t GZ himself trying to put the inculpatory words in TM’s mouth.
@Marco – You’re 100% correct about the catch-all exception. However, in practice, the “not covered by a specific exception” can be skirted past by arguing that an existing exception doesn’t apply. I’m not saying it would work, but it’s an avenue of attack.
I don’t believe Statement Against Interests really applies here for the reasons I very briefly mentioned above. The exception only seems to apply when the declarant was aware that they were speaking against an interest. In other words, Trayvon Martin would have had to have known that his statements were toxic to his interests. The justification behind the exception is that a declarant wouldn’t lie when speaking about things that could negatively impact him/her. It could be easily argued that Trayvon Martin didn’t take his statements seriously and was simply bragging. For that reason, I have difficulty applying the Statement Against Interests exception.
Also, the corroborating circumstances element that you referenced seems to only be relevant when the statements are being used against a criminal defendant. I’m not a criminal attorney, so I’m not as well-versed in those nuances.
well Marco that could never happen because the residence where Traydemark was staying was not his dad’s house.
Tracy Martin was not a resident of the complex but his bed buddy was a resident of the complex.
That is why such a text message would not have been there.
@Aussie: Yes I realize that. I was offering a hypothetical text for purposes of the discussion.
The defense’s motion which tried to bring in the fighting, the gun, the marijuana, and everything else we know about Trayvon, could be fairly characterized by the court as an attempt by the defense to attack the victim’s general character even if that was not the stated intent. Or at least that it was likely to have that effect if introduced in front of the jury and mislead them since TM’s character was not an issue in the case.
If I am claiming self-defense then the character of the person I killed is not particularly relevant although I imagine there are some carefully delineated exceptions in which it is relevant to a self-defense case.
Remember what happened with the toxicology evidence–ultimately nelson permitted it to be used by the defense but the defense chose not to, because O’Mara determined that it was not particularly relevant.
When you have evidence which is admissible under the rules but only marginally relevant, the judge has discretion under Rule 403 to exclude it. Because marginally relevant evidence can waste time and cause jury confusion.
In the case of the toxicology report, suppose O’Mara presents it to the jury. Then the jury might get confused and believe that they might have to find that TM was high or something, that somehow proving that TM was intoxicated was an element of the self-defense claim.
Again, how is TM’s state of mind on that night at all relevant if GZ doesn’t know about it? It’s not relevant. All that’s relevant is TM’s ACTIONS on that night and the reasonableness of GZ’s belief that they posed an imminent threat to GZ.
This is why all these leftists and race panderers who keep on saying “But Trayvon had a right to defend himself!!!” completely miss the boat on this. It DOESN’T MATTER if TM did or didn’t believe HE was acting in self-defense because he was afraid of a creepy cracker.
All that matters is TM’s actions and whether or not GZ’s fear in response to those actions was reasonable or not.
Does it really matter what TM’s motivations were in pinning GZ and beating him? Whether TM did that 1) because he liked to beat people up in a completely unprovoked fashion or 2) because he really was afraid of GZ, subjectively believed he had provocation due to GZ’s actions in following him, and had an over the top fearful/defensive fight or flight reaction which caused him to uncontrollably wail on GZ–IT DOESN’T MATTER.
And the reason IT DOESN’T MATTER is because GZ doesn’t have to psychoanalyze TM and figure out WHY TM is doing what he’s doing before pulling the trigger.
…And neither does the jury.
@Professional Spectator:
“In this event, the Defense could allege that the statement is offered to show the declarant’s (Trayvon Martin’s) state of mind. Statements offered as circumstantial evidence of a declarant’s state of mind are NOT hearsay.”
*****
How is TM’s state of mind when he sent the texts relevant to the case, though?
Even assuming TM’s state of mind is relevant at all, it would have to be focused on his state of mind on the night in question and more specifically immediately before and during the altercation.
TM’s (presumed very aggressive) state of mind days/weeks/months before the altercation is not particularly probative of his state of mind on the day of the shooting. It just brings you back to a stab at proving character or habit, which isn’t the same thing as proving his state of mind on the day of.
I get that it’s a very close call and the judge didn’t explain herself very well if at all.
The real problem is that what’s needed is some kind of testimonial evidence which is subject to cross-examination. If TM was such a habitual fighter than the defense should be able to present witnesses who could talk about that. Who knows maybe they had those witnesses lined up and the judge wouldn’t let them.
“This (fighting) evidence is admissible in support of Mr. Zimmerman’s self-defense claim regarding the abilities and capacity of Trayvon Martin as an experienced fighter,” Zimmerman’s attorneys wrote.
So it may be probative of a material issue in the case but it still needs to be corroborated according to the statement against interest rule.
I was upset, horrified, indignant and furious when I heard Angela Corey and now the latest juror call George Zimmerman a murderer.
There is a significant and clear difference between justifiable, unintended and unwilling homicide and murder (1 and 2).
Turns out, the Bible is very clear on this difference, as pointed out in an article by J. Warner Wallace, a Cold Case Homicide Detective, turned Pastor, Apologist and Author of Cold Case Christianity. Wallace lays out the evidence in this article (and in his book) as an experienced detective would do.
If you go to the end of B29’s interview after getting done saying that the man she acquitted is actually a murderer, she ALSO says that case never should have been brought to court in the first place.
So what you have I think is a relatively illogical/emotional person who in the context of the jury room ultimately managed to set her prejudices, biases, and irrationality aside long enough to come to the right decision. Then once out of that environment and back in her ordinary milieu it wore off and she’s suffering a bit of “buyer’s remorse.”
We now know why the jury asked for the evidence list, because the three for acquittal were going down the list of the evidence explaining to
B29 and the other two why the evidence wasn’t sufficient for a conviction.
In other words: “the system worked”. I’m not sure what more everyone wants.
There were actual changes in Trayvon’s liver and brain that were abnormal in a person his age and were attributable to drug use. His behavior (at school, with his parents, on the bus ride up to Sanford, in his texts, in the R@TL neighborhood and with George Zimmerman) that were together evidence of a consistent mental state.
Why the bus driver, the school officials, the MD Police, the texts and witnesses to the fights between Sybrina and Trayvon were not brought into evidence is a travesty and a dangerous one for George Zimmerman.
Poor forensics, poor police/detective work and intentional malevolent and political agenda deception (by Crump and the Prosecutors) are very much in evidence in this case.
Addendum: His behavior (at school, with his parents, on the bus ride up to Sanford, in his texts, in the R@TL neighborhood and with George Zimmerman) were together evidence of a consistent and increasingly unstable, violent and aggressive mental state.
It was a travesty and an outrage that the whole truth was not brought to the jury.
In Florida it looks as though none of it is admissible unless 1) GZ had prior knowledge of TM’s bad reputation and/or 2) TM had committed a prior “overt act” against GZ, specifically, that would cause GZ to have fear of TM.
So, if GZ on night watch had had some prior non-lethal altercation with TM, that might be an “overt act” which would then allow admission of all the reputation and prior acts evidence. But that is more because it goes to GZ’s state of mind–was his level of fearfulness reasonable when he shot TM? If he had prior knowledge of TM’s propensity or an actual altercation with him then it’s directly relevant to GZ’s state of mind.
Otherwise it’s just character evidence.
You have a point about the bus driver. Here is a quote from the a Florida DCA opinion concerning self defense. You also may have a point about the admissibility of hearsay
Quintana v. State, 452 So. 2d 98, 100
@ sequester: Quintana (at least the passage you quoted) only permits specific evidence of prior conduct of the victim towards the accused, not of the victim towards others.
Marco:
Spoken like a litigator!! You have marshaled some good arguments. However defense counsel would argue Quintana and other similar cases. (“not bar introduction of evidence of the victim’s . . . prior specific acts of violence, if such evidence will explain or otherwise give ‘meaning, significance, or point to, the conduct of the [victim] at the time of the [incident]”).
The evidentiary ruling is very much up to the discretion of the Court. Personally, I think some of the cell phone and fighting evidence should have been admitted. However, I also think Nelson used reasonable discretion. I am not sure she would have been reversed..
She gave Zimmerman a fair trial.
Quote:
Uncle Samuel | July 27, 2013 at 7:33 am
“There were actual changes in Trayvon’s liver and brain that were abnormal in a person his age and were attributable to drug use.”
Bullsh*t! Post a link to any REPUTABLE source that supports your claim.
You spend too much time is the bowels of the internet Uncle Samuel.
Not to single out just Uncle Samuel, I must say I’m a little tired of all these un-sourced claims and the flights of wild speculation as well. There are so many hard and fast FACTS supporting Zimmerman’s claim of self-defense, FACTS that the jury took on board in their deliberations which is why he was ACQUITTED, that it would behoove us all (on both sides) to just stick to what’s known and proven and steer away from the fringe theorizing.
There was and is still a crying need to tie the forensics, drug experts and witnesses of Trayvon’s prior behavior changes in the past year and in the days leading up to his assault of George Zimmerman in with Trayvon’s own texts and facebook statements – especially since this case is still being tried in the court of public opinion and is being used by the Marxists in public office to usurp power and to create a danger to society through uprisings and perversion of the law.
The sacred wonderfulness of “ground and pound” in the MMA style is overdone. It’s like a business course telling you the never-before released secret; “Buy cheap and sell dear.”
The reason the MMA guys ground and pound if they can is that they’re not allowed to use lethal tactics like standing over the guy and doing a heel strike to the sternum or something like that.
The latter would occur to the untrained, along with many others. It takes a good deal of MMA training to forget the real deal and do the G&P in a fight.
Interesting point. Did some work involving the UFC, and was surprised to discover that starting with fights almost devoid of rules, the sport moved rapidly under current ownership to one with a lot of rules designed to protect the participants and keep them alive. And, yet, at least in NV, it seems that for each fight, at least one, and often both participants, are medically suspended from fighting for a couple of months (according to NV state records). In other words, even the winners are sometimes injured enough that NV won’t let them fight again for a month or so, and more often than not, the loser is so injured.
Which, I guess, is to say that maybe it was better for GZ that TM was pounding him MMA stle instead of doing something more effective, but it was still plenty bad, and could have killed him, if not stopped. Still, it could very likely be that TM died as a result, since GZ shot him from such close range.
I think the confusion in the FL case law is because it’s worded ambiguously such as this:
“However, before a defendant may introduce evidence of the victim’s character, he must first show that there was an “overt act by the [victim] at or about the time of the [incident] that reasonably indicated a need for [self-defense]”
This is from the Holland case which looks like it may have been reversed on other grounds.
The semantic confusion is that when the cases refer to an “overt act” by the victim creating a fear in the mind of the defendant, they mean an “overt act” OTHER THAN the actual altercation which results in the self-defense killing itself–a PRIOR incident or incidents by the victim against the accused which in effect puts the accused “on notice” that he is or may be endangered in the presence of the victim.
So the cases talk about a jail inmate who was attacked, then there was a later altercation in which the inmate kills the attacker the next time; or a neighbor who arms himself because of a threat or attack, then on the next attack kills in self-defense.
But it goes to the defendant’s state of mind, that he was in reasonable fear, and his fear was reasonable because he had been the subject of a prior attack or attacks or threats by the victim.
So the problem under this interpretation is there is no “overt act”, i.e. a prior threat or act of aggression by TM against GZ, that would permit the texts to come into evidence to prove TM’s character or propensity to attack on the night in question, or at least that GZ’s fear that it would happen was reasonable based on GZ’s prior interactions with or knowledge of TM’s reputation.
There’s no story here. Exclusion of even a persons’ past criminal history has been “the rule” in courtrooms for decades. As a juror, after the verdict, guilty, the DA thanked us in the hallway as we were leaving and told us the “inadmissible” rap sheet on the perp was 30 pages long.
Blame the legal system. Every cop, lawyer, and politician has taken an oath and none of them have lived up to the oath. NONE.
In florida it looks as though the defense could admit evidence of TM’s reputation in the community as a fighter even if GZ didn’t know about it but no prior specific bad acts unless GZ had a prior altercation with TM or at least had prior knowledge of the other specific bad acts.
The defense offered the texts to prove that TM knew how to fight or had a reputation for fighting or something. But the texts if evidence of anything are evidence of specific bad acts. Since GZ wasn’t aware of the texts or the underlying prior bad acts and had never had prior altercations with TM they’re not admissible.
Reputation evidence is when a witness actually testifies that “TM’s reputation in the community is—-…” If the texts said “My reputation in the community is as a bad ass fighter” then maybe they are admissible as reputation evidence but they didn’t say that.
This was a perfectly nice little thread until a bunch of lawyers started in arguing 🙂
Suggestion for a new witness oath :
“I do solemnly swear or affirm to tell the truth, the parts of the truth that neither side could find a trick to stop me from telling, and nothing but those parts of the truth’.
Point wrt ground and pound and MMA is that Martin thought it was fun. Liked to do that stuff and had learned it someplace, or….had been so familiarized with it that the more lethal options occurring to the untrained were foreclosed to him by habit.
Either way, the result is pretty severe as to his attitudes toward beating people up.
From what I’ve read, he punched out the bus driver on the trip from Mommy’s house to Daddy’s house, after getting suspended and thrown out by Mommy. Got thrown off the bus.
How THIS is not ‘relevant’ escapes me.
Drive By – I do not consider University Science and Medical Research Departments to be the ‘bowels’ of the internet. But you are entitled to your own opinion, which is generally contrary to those of the aforementioned universities.
My reliable sources say:
1. “DXM is a dissociative anesthetic that at high doses can create powerful psychedelic effects. It is sometimes compared to PCP and ketamine, which are also dissociative anesthetics.14 The effects caused by DXM use vary depending on the dose. Users often describe dose-dependent ‘plateaus’ that range from a mild stimulant effect with distorted visual perceptions to a sense of complete dissociation from one’s body. Effects generally last for 6 hours, but will ultimately vary depending on the amount of DXM ingested and if it is used in combination with other drugs or chemicals.15 Other effects can include:
Hot flashes
Nausea and dizziness
Lack of coordination
Panic attack or seizures
Disassociation from body
Visual and auditory hallucinations
Impaired judgment and mental performance16
Sweating
Lethargy
Hyperactivity
Slurred speech
Hypertension (increased blood pressure)
Nystagmus (rapid eye movement)17
Vomiting
Rashes, red blotchy skin
Tachycardia (racing, pounding heart)18
Euphoria
Paranoia
Disorientation
Tactile hallucinations
Visual disturbances
Feelings of floating
Altered time perception19
Tolerance, Dependence & Withdrawal
The level and likelihood of experiencing tolerance and dependence will ultimately depend on the dose and frequency of use. When it is abused regularly, DXM can actually cause some of the symptoms (i.e., insomnia and dysphoria) that it is designed to cure. In addition, high-dose chronic use of DXM can lead to the development of toxic psychosis – a mental condition characterized by a loss of contact with reality along with a confused state – as well as other physiological and behavioral problems.20 It is unknown, however, what effect infrequent use of low doses has upon the user, although anecdotal reports of prolonged use describe DXM as a drug with moderate physical dependence and tolerance. Most users that display symptoms of withdrawal will experience some form of anxiety, restlessness, insomnia, diarrhea, vomiting, severe weight loss, and upset stomach.21”
U of Maryland: http://www.cesar.umd.edu/cesar/drugs/dxm.asp –
2. “DXM intoxication involves: over-excitability, lethargy, loss of coordination, slurred speech, sweating, hypertension, and involuntary spasmodic movement of the eyeballs. The use of high doses of DXM in combination with alcohol or other drugs is particularly dangerous, and deaths have been reported. Approximately 5-10% of Caucasians are poor DXM metabolizers and at increased risk for overdoses and deaths. DXM taken with antidepressants can be life threatening. OTC products that contain DXM often contain other ingredients such as acetaminophen, chlorpheniramine, and guaifenesin that have their own effects, such as: liver damage, rapid heart rate, lack of coordination, vomiting, seizures, and coma. To circumvent the many side effects associated with these other ingredients, a simple chemical extraction procedure has been developed and published on the Internet that removes most of these other ingredients in cough syrup.
Source: http://www.justthinktwice.com/drugs/dextromethorphan_dxm.html
MORE resources: http://www.ukcia.org/research/AgressiveBehavior.pdf
http://adai.uw.edu/marijuana/factsheets/aggression.htm
Your claim was that
“There were actual changes in Trayvon’s liver and brain that were abnormal in a person his age and were attributable to drug use.”
I think that’s what Driveby was asking for a cite on.
Additional source:
http://www.justice.gov/dea/druginfo/drug_data_sheets/Detromethorphan.pdf
“Effect on mind
Some of the many psychoactive effects associated with high-dose DXM include: confusion, inappropriate laughter, agitation, paranoia, and
hallucinations. Other sensory changes, including the feeling of floating and changes in hearing and touch. Long-term abuse of DXM is associated with
severe psychological dependence.
Abusers of DXM describe the following four dose-dependent “plateaus”:
Plateau Dose (mg) – Behavioral Effects
1st 100-200 – Mild stimulation
2nd 200-400 – Euphoria and hallucinations
3rd 300-600 – Distorted visual perceptions Loss of motor coordination
4th 500-1500 – Out-of-body sensations
Effect on body
DXM intoxication involves: over-excitability, lethargy, loss of coordination, slurred speech, sweating, hypertension, and involuntary spasmodic
movement of the eyeballs. The use of high doses of DXM in combination with alcohol or other drugs is particularly dangerous, and deaths have been
reported. Approximately 5-10% of Caucasians are poor DXM metabolizers and at increased risk for overdoses and deaths. DXM taken with
antidepressants can be life threatening. OTC products that contain DXM often contain other ingredients such as acetaminophen, chlorpheniramine,
and guaifenesin that have their own effects, such as: liver damage, rapid heart rate, lack of coordination, vomiting, seizures, and coma. To circumvent
the many side effects associated with these other ingredients, a simple chemical extraction procedure has been developed and published on the
Internet that removes most of these other ingredients in cough syrup.
Drugs causing similar effects
Depending on the dose, DXM can have effects similar to marijuana or Ecstasy. In high doses its out-of-body effects are similar to those of Ketamine
or PCP.
Overdose effects
DXM overdose can be treated in an emergency room setting and generally does not result in severe medical consequences or death. Most DXM
related deaths are caused by ingesting the drug in combination with other drugs. DXM-related deaths also occur from impairment of the senses,
which can lead to accidents. In 2003, a 14-year-old boy in Colorado who abused DXM died when he was hit by two cars as he attempted to cross a
highway. State law enforcement investigators suspect that the drug affected the boy’s depth perception and caused him to misjudge the distance and
speed of the oncoming vehicles.”
Abuse of this drug, combined with marijuana and tobacco use is certain to have affected Trayvon Martin’s behavior, relationships and school performance and explains his behavior on Sunday evening, February 26, 2012..
“Abuse of this drug, combined with marijuana and tobacco use is certain to have affected Trayvon Martin’s behavior, relationships and school performance and explains his behavior on Sunday evening, February 26, 2012..”
You were doing all right as long as you were cutting and pasting facts about how drugs are bad (m’kay), but as soon as you started devolving into pure speculation like the above, that’s where people are going to start questioning under what authority you make such claims.
Dr. Bao hinted at the fact that behavior such as Trayvon’s was consistent with the use of marijuana and DXM.
Medical officers in drug treatment centers and police reports and statistics would also support my contention.
The trial was pushed forward before adequate testimony evidence was gathered and processed due to the prosecution and judge.
Basically what you are trying to do is:
1) State as fact that Trayvon abused DXM frequently and for a very long time.
2) State as fact that DXM caused damage to both Trayvon’s brain and his liver.
3) State as fact that, because of the above, Trayvon acted the way he did the night he died.
And you want to do all of that without any medical professional coming forward to document ANY of those claims, ever! Only one, maybe two, loony tune blogs have made that leap.
No, Drivey, I’m saying they should have pointed out the liver damages, the behavior and had an expert to point out what even Dr. Bao hinted at, that marijuana/tobacco, DXM use/abuse are consistent with the liver changes and violent, aggressive behavior.
Your attitude is certainly consistent: contempt.
Drivey, I truly hope that neither you nor one of your loved ones ever has to encounter a DXM/Marijuana drugged, dependent and/or damaged, irrational, paranoid and violent Trayvon as George Zimmerman did.
Hang on, what liver changes? Where’s the evidence that there were any? Or, for that matter, that he was heavily abusing DXM?
He had a mildly fatty liver – that’s it. That can be caused by alcohol, drugs (legal and illegal), fatty foods, bowel disease, heredity… there’s no way to be sure. Degraded, expired tetracyclines can cause it, for instance, along with a lot of other things.
And there was no serious “brain damage” either – just “moderate congestion of the leptomeninges”. Which according to this forensics textbook is “common” to see during autopsies.
I don’t know where Uncle Samuel is getting all these untrue “facts” he’s determined to pass around, I expect it’s that Conservative Nuthouse site. People who keep spreading easily-debunked nonsense like this are not doing anyone any favors. Here’s the original .PDF of the autopsy report – read it yourself.
I have to disagree with hearsay claim of the article. It was clearly being offered as truth of the matter asserted. They weren’t using the text message to show that on a specific day he sent a text message which would make its contents irrelevant. They were specifically offering the text message for the content which could only be relevant if true. That is by the books hearsay. There would need to be a hearsay exception that would allow it in and I just don’t see one. Judge Nelson would be proper in excluding it as hearsay not within one of the exceptions because to be relevant, it must be taken as true.