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When Is Evidence of Your Attacker’s Character Admissible In Court?

When Is Evidence of Your Attacker’s Character Admissible In Court?

During the Zimmerman trial there was considerable consternation among much of the public that the trial judge, Debra Nelson, had excluded certain evidence about Trayvon Martin’s past, including his apparent drug use, illegal firearms dealing, passion for “street fighting”, among other pleasant character traits.

Now that the trial has ended in a not guilty verdict Judge Nelson’s evidentiary decisions will never face the scathing reversals they so richly deserve, and I won’t seek to revisit them here. Those decisions do, however, raise some more general evidentiary questions in the context of the law of self-defense. In particular, they raise the question of when, and why, you might be able to introduce into evidence information about the character of the person against whom you used defensive force.


To illustrate how the law treats character evidence and its admissibility I am going to use the Federal Rules of Evidence (FRE). Each state has, of course, its own rules of evidence, but dealing with 50 different state evidentiary codes is beyond the scope of any blog post, and the Federal rules provide a reasonable stand-in for the state rules in most cases.

FRE Rule 404. Character Evidence; Crimes or Other Acts

Normally, character evidence is simply not admissible, unless it meets certain specific conditions. The reason for this is that usually character evidence is intended to be used to suggest that a person acted in a certain manner at the time in question because he had acted in a similar manner on a prior occasion(s).

FRE Rule 404 explicitly excludes character evidence for this purpose:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Rule 404 does, however, create an exception to this prohibition for a defendant or a victim in a criminal trial.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

To apply these rules in the context of the Zimmerman trial, Zimmerman would be permitted to offer evidence of, say, his peaceful nature, and if the court admitted that evidence the State prosecutors would have been free to offer contrary evidence.

In addition, Zimmerman would be permitted to offer evidence about a pertinent character trait of Trayvon Martin, and if permitted the State prosecutors would be able to both evidence showing that in fact Zimmerman had a violent nature (if such evidence existed, of course) as well as evidence that Trayvon Martin also had a peaceful nature. (The mention of Rule 412 is to the Federal version of the “rape shield” law that makes it impermissible to introduce a woman’s sexual history into a rape case.)

In addition, because the Zimmerman trial was a homicide case, the State prosecutors would have been permitted to offer evidence of the alleged victim’s trait of peacefulness to counter Zimmerman’s claim that it was Martin who was the aggressor. To someone knowledge about these rules of evidence, the fact that the State never sought to introduce evidence of Martin’s peaceful nature spoke volumes.

It is also interesting that Rule 404 provides an exception to the rule against character evidence in the case of witnesses:

(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.

A person testifying in court always places their character into question on the issue of credibility and to what extent the jury should weight their testimony. This is why it is normally so hazardous for a defendant to take the stand. Until they do, evidence of their character may be admitted only for very narrowly limited purposes, effectively keeping most of the defendant’s character evidence out of court. Once the defendant takes the stand, however, the door slams wide open on character evidence.

Rule 405. Methods of Proving Character

If the character evidence passes the requirements of Rule 404, we must still consider whether and how particular pieces of character evidence may be admitted at trial.

When considering a evidence about a person’s character, the courts really distinguish between two types of evidence: (1) general reputation evidence; and (2) evidence of specific prior bad acts. FRE Rule 405 defines the methods by which character may be proven by each of these types of evidence:

(a) By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Self-Defense Cases Always Involve Issues of Character

There are many crimes for which a person’s character is neither relevant to the crime charged nor an element of a charge or defense, and in such cases evidence of a person’s background would not normally be admissible.

The First Principle of the Law of Self-Defense: Innocence

Self-defense cases, however, almost always involve the characters of the persons involved because of the First fundamental principle of the law of self defense: Innocence (discussed at length in Chapter 2 of “The Law of Self Defense, 2nd Edition”). Whether either particular party was the aggressor or the innocent victim in the conflict will likely make or break a self-defense case, and a person’s character can guide the jury to deciding whether a person was more likely to have been the aggressor.


For example, a person with a reputation in the community for violence, or who has specific prior bad acts (e.g., convictions for assaults) is fairly considered to be more likely to have been the aggressor than the person with a reputation in the community for peacefulness and an absence of specific prior bad acts.

The Fifth Principle of the Law of Self-Defense: Reasonableness

In addition, self-defense cases always involve the Fifth fundamental principle of the law of self defense: Reasonableness (discussed at length in Chapter 6 of “The Law of Self Defense, 2nd Edition”.) That is, before the use of force in self defense is deemed justified, the defender’s perception of the threat he is defending against must have been reasonable. Whether the other party’s conduct was of a nature likely to cause a reasonable person to fear imminent harm is a question for the jury, and one which they can better answer if there is evidence that that person’s character is one of violence.

Seems Straightforward Enough . . . So Let’s Make a Mess of Things

So, now we have a kind of 2 x 2 matrix. There are two types of character evidence–general reputation and specific prior bad acts–and there are two reasons for admitting such evidence in a self-defense case–to show who was more likely to have been the aggressor and to show the reasonableness of the defendant’s fear.

So far, pretty straightforward, right? But this is the law, and the law is only rarely left to be straightforward. Indeed, we now have to add a third layer or dimension to the analysis. That is, is it necessary that the defendant was aware of this character evidence at the time he acted in self-defense, or is it enough that the defendant learned of the character evidence only after the fact?

So, now we have a 2  x  2  x  2 matrix: reputation/prior acts; aggressor/reasonableness; knew at time/learned later. From this multi-layered matrix each of our 50 states gets to pick their own unique combination. And, yes, the result is a bit of a mess.

The States’ Many Varied Approaches to Handling Evidence of “Victim’s” Character

So, let’s consider all this in the context of the character evidence of the “victim” in a self-defense case, the person against whom defensive force was used, the equivalent of Trayvon Martin in the Zimmerman trial.

One common combination of choices from the matrix in the context of general reputation evidence is to allow in general reputation evidence of the victim to show either aggression of the victim or reasonableness of the defendant, and regardless of whether the defendant was aware of the character evidence at the time of the use of defensive force or not. Evidence of prior specific bad acts of the victim, however, would be admissible only if known to the defendant at the time of the confrontation.

This is, in fact, the evidentiary choice made by the Florida legislature. Under this framework, Martin’s specific bad acts, such as his alleged drug use, gun dealing, and street fighting, would be admissible only if known to Zimmerman at the time of their confrontation. Because Zimmerman had no such knowledge at the time, evidence of Martin’s specific prior bad acts was not permissible under Florida’s version of Rules 404 and 405.

Judge Nelson, Florida v. Zimmerman

Judge Nelson, Florida v. Zimmerman

Another common choice among the states is to allow the evidence of general reputation in if it is offered to show who was the aggressor, even if the defendant was not aware of that reputation at the time. On the other hand, evidence of specific prior bad acts is allowed in only if the prior acts were known to the defendant at the time he used defensive force.

Other states, such as Arkansas, require that the defendant have possessed knowledge of either the general reputation or specific prior bad acts, or the character evidence is excluded.

Still others, such as California, impose no such requirement that the defendant had possessed the knowledge at the time of the confrontation, at least in the context of self-defense cases.

Wondering How Your State Handles “Victim” Character Evidence? There’s a Book for That

If you’re interested in knowing how any particular state has made its selections from this 2x2x2 matrix of character evidence in self-defense cases, I refer you to Table 9-1. Admissibility of Attacker’s Reputation and History, in “The Law of Self Defense, 2nd Edition,” which covers all 50 states.

NOTICE: “Law of Self Defense” Seminars are now being scheduled for the fall.  For more information, email [email protected].

Andrew F. Branca is an MA lawyer and author of the seminal book “The Law of Self Defense, 2nd Edition” now available at and also at as either a hardcopy or in Kindle version, and at Barnes & Noble as hardcopy or in Nook version.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.


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Thanks, Andrew (I requested you discuss this topic here)

So, very commonly (by state), if Billy Bob went to prison twice for electrocuting his first 2 wifes in the tub, and now is charged with doing in #3, who also toasted in the tub, the jury can not know about #1 & #2, it ‘might give them the wrong idea’ 🙂

Also of interest today –

Wow. Too many juicy quotes to even copy here.

BTW – what about the remaining isues in the case, like Brady violation and sanctions ?


I’ll let the lawyers stay in the weeds on this one, but I would like to praise, once again, Mark O’Mara.

I think he knew precisely how dangerous this estrogen soaked jury was, despite the open and shut nature of the case, a danger we see confirmed today by the brown member of the ‘all white’ panel.

They so desperately wanted to make a, literally, hysterical decision, yet MOM left them not even a grain of sand to hide behind.

And it was still a very close business.


    pjm in reply to bildung. | July 25, 2013 at 8:00 pm

    And that concept applies, IMO, to any instance of self defense. No matter how ‘right’ you may be, you’re at least at 50/50 risk of getting ‘Zimmermanned’ by a rogue prosecutor with a bug up her ass, or mob mentality, or politicians, etc.

    Gots to ask youself ‘Is it worth it to stop him from taking my car ?’ (assuming wife and kids are not inside it) if, even though he threatened you in the process, you DO have ‘a way out’ of having to shoot him, or at least see if maybe he’ll just take it and leave.

    I mean – a few grand for a car, probably insured, possibly found and returned, or even a total losss, vs having your life ruined while proving your complete innocence ?

      platypus in reply to pjm. | July 26, 2013 at 6:17 pm

      You aren’t seriously suggesting shooting a thief, are you? As far as I know, that is second degree murder in every state. Certainly it lacks the first requirement of self-defense — that one be in fear of harm to oneself.

    Mapleblood in reply to bildung. | July 25, 2013 at 9:06 pm

    First, I dig your name. It makes me think of “Truth and Method” by Gadamer.

    Second, the estrogen-soaked jurors reached the right verdict.

    Yes, her comments about fighting for a conviction or to prevent a not guilty verdict, when the preponderance of evidence pointed towards innocence (let alone non-guilt), are disturbing.

    Nonetheless, other estrogen-soaked jurors taught her what evidence was, which evidence mattered, and how it was to be applied to the law. In that intense, enriched environment, she learned. Ergo, the threat Mr. Zimmerman faced from this jury had little to do with gender and much to do with education.

    This said, it is fortunate she did not have a like-minded soul on the jury to prevent her from learning as well as she did.

    It is unsurprising that her reservations have re-emerged as she re-enters her normal milieu and experiences media doublespeak. Nonetheless, she continues to recognize that the evidence was not there for a conviction, even if she imperfectly recalls the deliberatory scope.

    I like that she recognizes that it was a show trial because the prosecution did not give her the means to create the verdict they both desired.

      bildung in reply to Mapleblood. | July 25, 2013 at 9:33 pm

      Crump was banking on the all female jury and MOM expressed notable concern about it as late as 48 hrs before the verdict, in a CNN interview, I believe.

      Absent MOM’s masterful closing, I don’t think the other ladies could have reeled in those ‘feeling’ for conviction.
      I don’t think they’d have had the intellectual foundation to do so, without MOM providing it to them.

      And even with MOM’s Darrow turn, three of the six gyno-brains still wanted to can Zimm for at least 30 years.

      Very, very troubling.

      The state’s case deserved a summary verdict, rendered almost immediately.

      Without MOM, Zimm is toast. These ladies would not have saved him.

        Mapleblood in reply to bildung. | July 25, 2013 at 10:21 pm

        I lack the experience to meaningfully rate MoM’s performance, but I thought it was close to masterful. I agree that it was needed, which is confirmed by the juror that spoke today. I wonder how many wrongful convictions the Corey crew has been able to manufacture.

        Nonetheless, there is no shortage of “andro-brains” that think the evidence favored a 2nd degree murder conviction.
        I don’t dispute that gender played some role in the decision-making process, but I think it was small compared to the role played by their facility to analyze and synthesize the evidence and its presentation.

        We are allowed to disagree.

          bildung in reply to Mapleblood. | July 26, 2013 at 12:07 am

          Yes, I certainly agree; you make good points.

          Still, if I were Zimm, I’d have rather had six men than six women, factoring out blackness, of course.

          Even with a so-so defense counsel, the worst that jury could have done would be to hang, tending toward acquittal.

          But it took these gals 18 hours to make a decision that didn’t merit 18 minutes and that’s just pure poppycock.

          Oh, well. I guess Nancy Grace is doing the same thing for my sexism that Obama’s doing for my prejudice.

          But I hear ya.

    creeper in reply to bildung. | July 26, 2013 at 12:32 pm

    Still beating that “estrogen-soaked, emotional women” drum, are we?

    They got it right, however slimy B29 is, and you’re trashing them yet because of their gender.

    You make me sick.

      byondpolitics in reply to creeper. | July 26, 2013 at 1:22 pm

      I agree. This person’s hateful statements are outrageous and unquestionably turn people away from reading this blog and other comments on it. It’s shocking to see them on a blog where the blog writers seem so fair-minded and reasonable.

        creeper in reply to byondpolitics. | July 26, 2013 at 2:34 pm

        You’d be surprised (and depressed) to see how many thumbs-up this poster gets on his misogynistic comments, even from some females here. This is an ongoing crusade with bildung. Evidently he/she/it comes from the “barefoot and pregnant” school of thinking.

        platypus in reply to byondpolitics. | July 26, 2013 at 6:37 pm

        Yikes! Misogynistic? Really?

        Maybe he’s just tired of most of today’s women who make their determinations based exclusively on emotion (driven by estrogen). Maybe, in a legal system, he is sick and tired of decisions made that are based upon something other than the law and the evidence.

        What would you say if “he” was actually a she? We really don’t know which, do we? We’re all doing a fair bit of assumin’ ain’t we?

        Are you estrogen rah-rahs really just beta males? I’m not trying to pick a blog fight here but my wife will be one of the first to tell you that a gaggle of women together is “estrogen drenched” and in desperate need of some offsetting testosterone. As in men. Real men.

Andrew you mention:

Debra Nelson, had excluded certain evidence about Trayvon Martin’s past, including his apparent drug use, illegal firearms dealing, passion for “street fighting”, among other pleasant character traits. … Judge Nelson’s evidentiary decisions will never face the scathing reversals they so richly deserve

and that in Florida

Evidence of prior specific bad acts of the victim, however, would be admissible only if known to the defendant at the time of the confrontation.

Would the victims acts you mentioned in the first quoted paragraph be considered general reputation evidence under Florida’s rules of evidence or inadmissible prior bad acts?

    The drug use, firearms dealing, street fighting would all be specific acts.

    The phrase general reputation evidence is quite literal–“Can you tell the Court whether his general reputation in the community was one of peacefulness or violence?” Then there may be an exploration of specific instances that support that contention.

    Any specific act without the foundation of a general reputation is just that, a specific act.

    In the Zimmerman case, the specific acts SHOULD have been left in, not under these rules (which would have prohibited them) but because the State prosecutors slipped up and opened the door to their admission on separate grounds. But Nelson saved them, as usual.

    But that’s a topic for a different post.

    –Andrew, @LawSelfDefense, #LOSD2

      fogflyer in reply to Andrew Branca. | July 25, 2013 at 9:26 pm

      Oh, that’s not fair!!!
      I really want to know what you think opened the door for specific acts?

      I always thought that the state’s constant insistence that Trayvon was doing nothing wrong that night, that he was just on his way home from the store with candy for his brother, might open the door to the evidence of the past burglary.

      Come on Andrew, spill the beans!

I dont follow your rationale regarding what was known by GZ: “alleged drug use, …, would be admissible only if known to Zimmerman at the time of their confrontation”

During the call to the non-emergency hotline, Zimmerman made judgments based upon TM’s behavior that led him to beleive he may be on drugs or somethig and is up to no good. Therefore, Zimmerman’s suspicions led him to call in, follow and so on. Learning that in fact he had THC inhis system (was on drugs) and other behavioral factors seems very relevant.

What am I missing?

    What Zimmerman was observing at the time would not be character evidence of either reputation or prior bad acts–it’s simply what he’s observing. That would be fine, if he chose to testify, or it could come in some other way.

    As it happens the amount of THC in Martin’s blood was way below intoxication levels. (Of course, Dr. Bao did the test, so . . . )

    –Andrew, @LawSelfDefense

      Archer in reply to Andrew Branca. | July 26, 2013 at 1:39 pm

      Thanks, Mr. Branca. That had been eating at the back of my mind for a while now.

      Basically, when GZ said on the phone with the dispatcher that TM was acting like he was on drugs, was that suspicion/observation enough to have the evidence of TM’s current/past drug use admitted? Apparently not on its own.

      And thanks again for your coverage of the trial. I work days, and therefore couldn’t follow on Twitter or watch the live stream, so your daily summaries were invaluable in keeping up with the proceedings.

thx Andrew and thank you for your coverage over the course of the trial. I feel I owe you a coffee or cold beer, but I trust you know the true value of your information and wisdom.

This is excellent. You must do some judicial trainings, Andrew! 🙂 If you haven’t sent a courtesy copy of your book to Judge Nelson yet, I think I’m going to.

George Zimmerman Juror Says He ‘Got Away With Murder’

Carol Herman | July 25, 2013 at 8:24 pm

Different rules for different people. When a woman is really raped, but she wasn’t a virgin prior to her rape; any and every previous sexual encounter enters into evidence.

PS: I could care less what any of these women jurors now say. Plus, whatever, and however, they came to their conclusions inside the jury room, what you get from #29 is that the other women had their hands full. As she screamed “He’s a murderer.” And, in unison they said: “Show us the evidence.” Screamer couldn’t.

If you’ve been raped you’re probably better off not going to the police. Which is exactly how The Godfather starts. And, I was so upset at the time, I shut the book, and flung it across the room.

What’s wrong with the law. When you see problems. And, they can’t be fixed.

Oh, to Juror #29 I say trayvon got his just desserts. And, in the long run, obama’s claiming that he could’a been dad son, will be his measure. For after all he’s demonstrated such behaviors. He’s got one on dubya.

MouseTheLuckyDog | July 25, 2013 at 8:26 pm

I’m curious if there is a “back door” for the gun evidence.
The evidence shows that Trayvon Martin was trying to obtain a gun. I have not delved thoroughly into the statements, but I think he wasn’t having much luck.

In George Zimmermans statements he said that Martin “went for the gun” and he believed that Trayvon would shoot him. Now when Trayvon saw the gun an object that he wanted and had trouble obtaining, could he have not simply decided to steal the gun? Wouldn’t the gun evidence then coroborate a part of George Zimmermans statement? I’m nopt even sure that technically that could even be consideered character evidence in that light.


great post, as always.

I don’t use Twitter but saw a lot of your tweets during the trial. At one point I saw you ask who would be the right person @ the NRA to do a book review for you (think someone answered Ted Nugent, which WOULD be cool). If that didn’t pan out however, my latest issue of America’s First Freedom’s book review section was done by John Frazer, director, and Blake Sutter, legal research intern, Research and Information Division, NRA Institute for Legislative Action. The book in question this month is on CA gun laws, written by a CA attorney, so LOSD2 is probably right up their alley…

Andrew, you left out one critical rule of evidence in this area: that evidence that shows character may generally be admitted for some other purpose. This was what made the exclusion of Martin’s texts showing his fighting experience such an awful error–even if it had been inadmissible character evidence, it was evidence of Martin’s fighting skill relative to Zimmerman’s. That issue would be relevant in any case, but here the prosecution initially opened the door with its introduction of Zimmerman’s MMA experience as evidence that he was on top during the fight. That’s not character evidence, it’s ordinary circumstantial evidence.

That’s a general rule for litigators–if you have evidence you can’t get in for the issue you want, find another way to get it in and hope the jury comes to the conclusion you want.

    You’re point is, of course, perfectly valid.

    But I didn’t leave it out by accident. I left it out because this is a blog post, and I can’t replicate a semester or two semesters worth of law school rules of evidence in a single post. 🙂

    The evidence on Martin’s cell phone most definitely SHOULD have been admitted, but not under the 404/405 rules for character evidence. The State opened the door to the evidence being admitted due to their incompetence as trial lawyers.

    But again, can only cover so much in a single blog post.

    –Andrew, @LawSelfDefense

      Edgehopper in reply to Andrew Branca. | July 25, 2013 at 9:36 pm

      Fair enough–I did want to get that out there though because I thought you’d spark a lot of confusion. After all, the “evidence can come in for a nonobvious reason even if excluded as character or hearsay evidence” rule is probably the most common mistake on the bar exam and a very common one for junior lawyers–let alone the lay people who read this website! 🙂

        sequester in reply to Edgehopper. | July 26, 2013 at 8:29 am

        Quintana v. State, 452 So. 2d 98, 100

        (“[T]he fact that a claim of self-defense may be tenuous should 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].’. . .

          sequester in reply to sequester. | July 26, 2013 at 8:55 am

          On additional point. The Florida Standard Jury instruction on self-defense reads:

          Physical abilities. Read in all cases.
          In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim)

          Given this instruction, evidence that the victim was skilled in fighting would be probative.

Andrew, your book arrived here last week. mr. creeper has already finished it and I’m about halfway through. It’s as discouraging as this post, I’m afraid. Though I saw what George Zimmerman went through I didn’t realize this is the case in most states…including my own, which is a “duty to retreat” state.

mr. creeper summarized the book nicely. “If you have to shoot someone, tell the police you were afraid for your life and then shut up until your attorney arrives.”

Andrew, what is your pro/con opinion on the 6 person jury vs. 12?
Were I a defendant, I think I would rather have 12 since it would increase the likelihood that one or two of them would be sane and strong enough to stop a railroading.
Your thoughts?

    Haha, if _I_ were the defendant I’d want a jury of 10,000, and retain the mandate for a unanimous decision in order to return a guilty verdict.

    But as my first wife liked to remind me, I’m self-centered that way. 🙂

    –Andrew, @LawSelfDefense

Wait, so you’re going to tell us that the judge’s ruling “richly deserved” to be overturned, but you’re not going to tell us why you think that?

Also, I was unaware FRE 412 was gendered.

    Are you paying me to talk on your schedule?

    Also, I don’t believe I said that FRE 421 was gendered. I provided an illustrative example that made use of gender norms. If that bothers you . . . well, I guess it bothers you.

    –Andrew, @LawSelfDefense

      Awing1 in reply to Andrew Branca. | July 26, 2013 at 6:34 am

      If you’re going to ask people to accept your characterization, you should explain why.

      “The mention of Rule 412 is to the Federal version of the “rape shield” law that makes it impermissible to introduce a woman’s sexual history into a rape case.”

      It’s 412, not 421, and that’s not a gender norm, that’s simply an egregious misstatement of the law. “Victim” and “woman” are not synonymous.

        Now you’re just being tiring. Righteously tiring, perhaps the worst combination. 🙂


        –Andrew, @LawSelfDefense

          If I ever take a pro-bono sexual assault defense case, and my client is a female, I’ll be sure to tell them “oh, don’t worry, your prior sexual assaults that would be permissibly admissible under rule 413 are precluded by the mandatory exclusionary rule 412, which Andrew Branca tells me precludes the sexual history of a woman in sexual assault cases”. I’m sure my client will understand how I couldn’t be bothered with the distinction between woman and victim because it was just so tiring.

          Crawford in reply to Andrew Branca. | July 26, 2013 at 11:02 am

          And your client should slap you and demand better representation.

          Yes, that’s the point.

          Haha, SMH. *shakes head* 🙂

Off topic, but I just got dismissed from a jury yesterday during voir dire.

The state attorney asked the jury as a group that if juror number 3 testified that he had two eggs, toast and coffee for breakfast, and there was no other testimony, would everybody consider that as fact.

I alone said I would have a problem with that.
The attorney looked stunned. This is probably a question she asks repeatedly of juries and I guess she doesn’t usually get a negative response.

I explained that I know human memory is fallible, and while I would believe the juror was probably correct, I am not sure I would believe it to be true beyond a reasonable doubt. I also said that if the statement was self-serving in any way, I would definitely not think it was true beyond a reasonable doubt without some corroborating evidence.

The attorney then asked me what I would do if I received jury instructions that told me that I should consider testimony from one person, that is uncontested, to be fact.

I told her I would abide by whatever instructions were given to me by the judge, but that I was pretty sure no such instruction would be given.

At this point the judge intervened and actually read me the jury instruction, which as I suspected, said something like a juror CAN take a sole witness’ testimony as fact if they find that witness to be credible.

The attorney tried to get me dismissed for cause, but the judge didn’t buy it and she had to use one of her challenges. I was really shocked by the whole thing.

I half expected to get dismissed by the defense as my wife and father are in law endorsement and I have a good friend who is a DA investigator in my county, but I never thought it would be the state dismissing me, all because of that answer… Odd.

How would you guys answer that question???

    Edgehopper in reply to fogflyer. | July 25, 2013 at 9:59 pm

    Something similar happened to me in my one round of jury duty, in Cleveland. I was (and still mostly am), a pretty tough on crime libertarian-leaning conservative. If the evidence pointed to guilt, I wouldn’t hesitate to convict no matter what heartbreaking story about the defendant’s past was presented. In Cleveland, you have jury duty for a week–if you get struck, or even if you go through a short trial and render a decision before the week’s up, you go back into the pool. I had just finished my first year of law school.

    The first case I get put on, the prosecutor stars his questioning:

    P: Mr. Beck, it says here you’re a law student?
    Me: Yes.
    P: Where do you go to school?
    Me: NYU Law School.
    P: Excuse me?
    Me: New York University School of Law.
    P: Is that in New York City?

    At this point, the defense lawyer, who looked like a fairly sharp and expensive lawyer (the case was a 2 defendant murder trial), looked like he was about to crack up. The prosecutor used two peremptory strikes, and one was me.

    On jury #2, the prosecutor just asked me what I understood “innocent until proven guilty” meant. Again, I was the only peremptory strike.

    I sat on jury 3-which was for a civil case (breach of contract). Defendant had the much better case, and the plaintiff’s lawyer was in way over her head. You could tell, because the plaintiff’s lawyer didn’t strike anyone, and the defendant’s lawyer only struck the 19 year old who, when asked if he ha ever signed a contract, said that he had signed a sheet in high school saying he had to get good grades to play football. I note that the 8 person jury had 3 people with some degree of legal training–presumably because they kept getting struck by prosecutors from criminal juries.

    I have a much lower opinion of prosecutors now.

      fogflyer in reply to Edgehopper. | July 25, 2013 at 10:21 pm

      Yeah, I wasn’t too impressed with either attorney, but the defense lawyer was a boob. Don’t know if he was a PD or not. He had a really hard time getting out a complete sentence, kept repeating himself, but worst of all, he kept thanking people for their “can-DOOR”. Just like that, emphasis on the DOOR. It sounded so weird and he must have said it 10 times… It was driving me crazy! 🙂

      I also consider myself a pro-prosecution type witness.
      This was a domestic violence case, so I know they didn’t want ladies on the jury and LOTS of jurors got dismissed for cause due to their own DV issues. I really thought I was going to be on the final jury for sure. I still am shocked that nobody else had a problem with that question. Maybe I am the weird one?

        Edgehopper in reply to fogflyer. | July 25, 2013 at 10:30 pm

        You suggested you would think for yourself. Litigators hate that in jurors.

        (To be fair, the issue the lawyer should have been getting at is “if juror number 3 testified that he had two eggs, toast and coffee for breakfast, and there was no other testimony, and you had no reason to believe he was lying, would you accept that as fact.” The idea is to make sure you’re not speculating beyond the evidence presented, like the myriad commenters on the Zimmerman case who assume that he brandished his gun at Martin based on their stereotype of Zimmerman as a racist vigilante.)

          fogflyer in reply to Edgehopper. | July 25, 2013 at 10:56 pm

          Yeah, that would at least remove the self-serving aspect and the credibility issue.
          That said though, I think I would still answer the same way. If in a case all I had was one persons memory of an event to convict someone on, I don’t think I could do it. If there where absolutely no other evidence except one witness, I don’t think I could except their statements to be factual beyond a reasonable doubt. I just don’t trust people’s memories that much for it to be a sole indicator of fact.
          I should say I wouldn’t ALWAYS except it. If someone had a very distinct memory of an event because they were paying close attention for some reason, I might find that to be factual, but something as mundane as what you had for breakfast, I think you could easily forget that you also had a banana on the way out that slipped your mind.

          I guess that answers why I was dismissed though.
          It shows I have a rather high bar for “beyond a reasonable doubt” I guess.
          I just never realized that thinking was unusual.

Sharpshooter | July 25, 2013 at 9:59 pm

Andrew, Massad Ayoob beat you to it by a day:

Imagine what a team that would make – Branca and Ayoob!

    Haha, Mas is the Master, I’m merely the student.

    Literally, I’m a student of his, took his Lethal Force Institute class way back in 1990-something. It was awesome.

    He’s been very kind in praise of my Zimmerman coverage. He’s got a copy of LOSD2 in his hands, can’t wait to hear his feedback.

    Understand he’s now got his MAG enterprise running these last few years since he moved from New Hampshire, would recommend Mas defensive force training to anybody, it’s good stuff, and brings in the LEO perspective that folks like me don’t have.

    –Andrew, @LawSelfDefense

ON the cell phone contents issue – other issues aside, I thought Nelson said she questioned the ‘authenticity’, as supposedly ‘someone else might have sent those thousands of texts from his phone’. I would think that would be an easy thing to lay foundation for, bringing in tons of folks (as indicated by phone company records) that got the / replied to them, as to ‘are you sure it was TM you were texting with ? Did you text like this with him freuqently ?’ etc.

    randian in reply to pjm. | July 26, 2013 at 1:16 am

    If I recall correctly, the defense asked for time to develop that foundation, but was denied by the judge.

    fogflyer in reply to pjm. | July 26, 2013 at 1:19 am

    Authenticity was her initial issue for questioning the text messages regarding Trayvon’s fighting, but when she ruled the next morning, she really didn’t state on what grounds she was disallowing the evidence. I still don’t think we know.

      Edgehopper in reply to fogflyer. | July 26, 2013 at 12:28 pm

      That’s correct. There are 4 different grounds Nelson could have used to exclude that testimony: 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 doesnmt 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.

        Awesome, Edgehopper, that could have been a blog post all on its own. 🙂

        –Andrew, @LawSelfDefense

        Marco100 in reply to Edgehopper. | July 26, 2013 at 2:56 pm

        With the strong caveat that I am not really trying to defend anything Judge Nelson did, one of the problems with the text info from TM’s phone is that it’s all simon-pure hearsay.

        Remember, while GZ is a party-opponent, and his statements come in for their substance if offered by the State, TM is not a party-opponent. The State is the party-opponent to GZ.

        So–let’s assume for now there’s no authenticity issue–the TM text contents cannot come in for the “truth of the matter(s) asserted”.

        To simplify, let’s say we have a single TM text which has TM stating to a friend: “I just love me to bash a creepy ass cracker in the nose, and make him bleed, then I like to jump on top and ground and pound the sucker.”

        Let’s say Nelson admits it into evidence. It’s NOT admissible for the truth of the matter asserted–i.e. to prove that TM actually would be prone to act that way, to act in accordance with the text statement in a violent way–since TM is not a party-opponent to the defendant GZ.

        TM didn’t actually testify, so his text statement isn’t really admissible for impeachment purposes. There IS a rule in most states (I don’t know about FL) that if a hearsay statement from a non-testifying witness is admitted, the opposing party can also use an out of court statement of the hearsay “witness” for impeachment.

        But the only thing that TM “said” in the trial, via hearsay, is through Jeantel. Jeantel said TM was heard to say “get off me!” and “creepy ass cracker.” So arguably other hearsay from TM could be admissible to impeach “get off me!” and “creepy ass cracker.”

        However those two statements are really more like excited utterances by TM or present sense impressions of what is going on at that moment. They don’t really address the issue of TM as being prone to be an aggressive fighter, nor do they really indicate the contrary. So the text message doesn’t really seem relevant for impeachment purposes.

        Let’s even speculate that TM’s mom had testified to Tm’s pacific and non-fighting nature (remember she tried her best to stay FAR AWAY from that). That would be either 1) her opinion of his character or 2) reputation in the community or 3) direct observational evidence of how he behaved in certain situations.

        Let’s then say the defense tries to impeach mom with the TM text. The only way this could be would be something like:

        MOM: Were you aware of this text on TM’s phone where I will represent to you that he talks about beating the crap out of crackers?

        BDLR: Objection, hearsay.

        Nelson: I will allow some latitude for the defense. The witness opened the door by talking about her son’s pacific reputation. However the texts are not admissible for the truth of the matters asserted. They are admissible to impeach THIS witness in terms of her ability to testify knowledgeably about her son’s reputation, or whether she is being truthful about that reputation. Please answer the question.

        FULTON: No I don’t know anything at all about any texts Trayvon put on his phone.

        MOM: Let me show you the text to refresh your memory (shows witness the text from TM’s phone).

        FULTON: No, I’ve never seen that before and as far as I know Travyon never sent anyone a nasty text like that.

        MOM: Ma’am do you seriously expect us to believe that?

        BDLR: Objection. Asked and answered. He tried to impeach the witness’s testimony with extrinsic evidence allegedly from a TM text message and she said “No” she knew nothing about it.

        NELSON: Ask your next question Mr. O’Mara.


        So, although Nelson failed to articulate any of this, what you have is really the defense’s attempt to use the text message of a non-testifying out of court “witness” (TM) as substantive proof that he actually behaved in accordance with the content of the text message.

        Except there’s really no rule of evidence or exception that permits you to do that. Remember this isn’t something from a court or deposition transcript, sworn, w/cross examination, but then afterwards the witness died or was unavailable.

        It’s an unsworn text message that wasn’t subject to cross examination. It’s not a prior inconsistent statement by a testifying non-party witness. It doesn’t really serve to rebut the out of court statements attributed to TM by Jeantel, which were more along the lines of present sense impression or excited utterances and didn’t really constitute statements about TM’s aggressiveness or fighting prowess.

        It’s pretty much pure hearsay. (Essentially for all anyone really “knows” TM could have been a cowardly braggart talking smack in his txts.)

        So with hearsay, you need to find an applicable exception, and the exception has to be pretty clear cut.

        Now of course DIRECT evidence from a testifying witness about TM’s aggressive nature might open the door to using the text at least for impeachment purposes. I gave a hypothetical showing how even if the mom had testified in that area, she could have easily shut down the cross just by denying she knew about the texts. And the prosecution went out of their way to try to not open that door anyway.

        Even so I don’t see how the Martin phone text could ever be admissible as substantive evidence about TM’s fighting skills. If admissible they are only so as impeachment about what other witnesses testifying in that area may or may not have known prior to formulating their opinions, but it still doesn’t mean the txts are admissible for the truth of the matters asserted.

        And just because the prosecution tried to prove GZ’s fighting skills level in itself doesn’t permit the TM texts to come into evidence. These are really two completely different issues in terms of the rules of evidence. The State was trying to use DIRECT evidence of GZ’s fighting skills elicited by testifying witnesses (i.e. his martial arts instructor) which obviously is admissible, or by other live testifying witnesses. So that’s in court testimony but not hearsay. The witnesses who testified about GZ are available to be cross examined.

        In contrast, TM is NOT available to be cross-examined on his text messages.

        So, if what the defense wanted to do was to try to show that TM was an aggressive fighter, they needed to find actual witnesses who could come into court and willing to testify to that aspect of TM’s behavior/character/history. Of course no such witnesses were available or willing to come into court.

        It sure SEEMS like those text messages should come right into evidence. And maybe it’s a pretty close call. But, because they don’t seem like they are amenable to any hearsay exception, they can’t come in for the truth of the matter asserted–the very point MOM wanted to prove–that TM was an aggressive fighter. They can only come in perhaps as impeachment of a testifying witness who claimed otherwise, and none of the testifying witnesses really did that. They stayed carefully away from it. And a judge can exclude evidence like that if the jury might be subject to confusion, which is always a strong possibility if evidence is to be admitted for a “limited purpose.”

        There’s lots of things that “SEEM” as if they should be admissible, but aren’t, because they “declarant”–the party making the statement–isn’t available to be cross-examined in court, in front of the jury.

        This happens all the time in a courtroom especially with pro se parties or small claims jurisdictions where the rules of evidence are applicable. A litigant will come into court with a letter, sometimes even a sworn affidavit, from someone who’s not available to testify, and no matter how authentic that letter or sworn affidavit appears on its face, it’s not admissible over the opposing party’s objection. It’s not a question of authenticity, it’s a question of whether or not it’s hearsay and if so is there an applicable exception?

        Nelson really muddied the waters by talking about authenticity though I’ll admit that.

        Think about it: How are text messages that were created out of a court, not sworn to under oath, not subject to cross examination, not a dying declaration, no apparent available hearsay exception, not made by a testifying witness, admissible for any purpose at all?

          Edgehopper in reply to Marco100. | July 26, 2013 at 3:43 pm

          Marco, you’re right as to the general law but not as to the application. Leaving aside most of your post, the important issue is:

          “Even so I don’t see how the Martin phone text could ever be admissible as substantive evidence about TM’s fighting skills. If admissible they are only so as impeachment about what other witnesses testifying in that area may or may not have known prior to formulating their opinions, but it still doesn’t mean the txts are admissible for the truth of the matters asserted.”

          The problem is that they aren’t hearsay and they aren’t character evidence. Hearsay is an out of court statement introduced to prove the truth of the matter asserted in the statement. If you introduced the out of court statement of a friend who said, “Trayvon Is a really awesome fighter” to prove his fighting skills, that would be hearsay. However, a series of statements by Martin discussing various fights he was in isn’t introduced to prove that he was in those particular fights, but that he has experience and knowledge about fighting. That’s not hearsay.

          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.

          Litigator’s 1st rule of evidence: If you want a piece of evidence in that would be excluded as hearsay or character evidence, find another reason to get it in.

          sequester in reply to Marco100. | July 26, 2013 at 7:33 pm


          As I mentioned above, Florida has Standard Jury instruction that must be read in all self defense cases

          Physical abilities. Read in all cases.
          In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim)

          So any writings of the defendant which bear upon his fighting abilities are probative.

          As far as Trayvon’s propensity to punch someone in the nose, there is at least one DCA case on point, Quintana v. State, 452 So. 2d 98, 100

          (“[T]he fact that a claim of self-defense may be tenuous should 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].’. . .

          When Zimmerman gave his statement that he was punched in the nose, he had no way of knowing that Martin studied punching people in the nose. A writing of Martin discussing punching people in the nose is probative to assessing the truthfulness of Zimmerman’s statement.

Uncle Samuel | July 26, 2013 at 7:28 am

OK – here’s a fictional questioning of SF by MOM. Would this be admissible, allowable and lead to the exposure of Trayvon’s general state of mind?

MOM: Mrs. Fulton, I appreciate how difficult all this has been for you and how hard it is for you to be questioned in court. I will only have a few questions.
Please tell the court how it is that Trayvon came to leave school and be with his father in Sanford during the time before he was killed?

SF: (mumble, prevaricate, hedge, sanitize)

MOM: Why did you tell Trayvon via phone text messaging he had to leave?

SF: (prevaricate, denial…)

MOM: Was Trayvon suspended from school for ______ and ____ and wasn’t this his third suspension?

SF: (obfuscate, equivocate, etc.)

MOM: How did Trayvon get from Miami to Sanford?

SF: (etc.)

MOM: Is it true that Brandi Green had to pick him up half-way to Sanford because he attacked a bus driver and was put off the bus?

SF: (hedge, mumble, etc.)

Would that line of questioning have been admissible?

    fogflyer in reply to Uncle Samuel. | July 26, 2013 at 9:29 am

    Wouldn’t be allowed.
    First off, SF was a state witness, so on cross MOM could only ask her about things brought up in direct.

    If MOM called SF as his own witness.
    He could have asked the first question, which would have drawn an objection. They would have went to the bench and Nelson would have told MOM he better watch his ass and not try and bring in Trayvon’s character.

    That is my non-lawyer opinion of how that would go down.

    Edgehopper in reply to Uncle Samuel. | July 26, 2013 at 11:42 am

    fogflyer is absolutely right, and Judge Nelson would be correct in doing that. None of that is relevant to any issue in the case except as character evidence, and specific acts are inadmissible as character evidence.

    Marco100 in reply to Uncle Samuel. | July 26, 2013 at 3:08 pm

    Instead of asking “Would that line of questioning have been admissible?” instead ask yourself,

    “For what purpose am I asking these questions?”

    IOW what probative/material/relevant evidence are you hoping to elicit from this witness via these questions?

    The reason why Sybrina asked TM to leave, how he got from one city to another…how is any of that relevant to the issue the jury has to decide, which is the guilt or innocence of GZ?

    Also, you have to remember that the judge is the gatekeeper and even where there is SOME probative value, can exclude it where it might confuse the issues or confuse the jury.

    Is the fact that TM was suspended from school/a druggie/got into fights/used drugs particularly probative of what happened that night, and does its probative value outweigh the possibility of juror confusion?

    Let’s say the testimony would be “Travyon Martin liked to start fights when he lived with his mom.” I guess that DOES have SOME relevance on the self-defense issue; I’m not sure that it has SO MUCH relevance that it’s a harmful error for the judge to exclude it.

fogflyer and Edgehopper bring the goods. 🙂

–Andrew, @LawSelfDefense, #LOSD2

Andrew, is there any chance you might review the voir dire on juror B29 and give us any more thoughts you might have since she’s surfaced on the teevee?

Carol Herman | July 26, 2013 at 4:17 pm

Actually, the “addled female brain” belonged to Farley-Nelson.

And, believe it or not, this case was played to the cameras. Where you’ll notice the group least likely to have watched any of the trial, is the one in the streets.

One thing I know, at no time soon will Pope Francis put trayvon on any sainthood list. And, to most Americans, they wouldn’t want to see this kid living next door, either.

MOM was fantastic! I’d hope the 22 minutes of his “opening of the close” gets taught in schools, to all the people who will get summonded to serve. And, will waste their time in courts, nationwide. (The rule of thumb is to say you’re gnawing on what jury nullification means, when you know the judge, at the end of the trial, will provide the Jury with whatever the law is.)

Floriduh is still Floriduh. A sand state that can’t attract enough new businesses to opening factories and offices there, that would bring jobs.

By the way, ONE OF THE JURORS, during Vior Dire, didn’t get chosen. But the judge forced the issue. Was that B29?

Best case for Half-Nelson? A hung jury. Expensive for Floriduh.

While the biggest question I have is will Rick Scott be a one-termer? Or not?

Carol Herman | July 26, 2013 at 4:25 pm

How come nobody goes after Dr. Bao? There was evidence on trayvon’s hands that he had just punched Zimmerman. I’d bet there would have even been DNA evidence under the nails of one hand. Or the other.

How come there are no laws covering a defendant when the State is negligent? Let’s say the autopsy report got lost?

What happens to the “missing evidence” … when it’s obviously been befouled by the State. INCLUDING Zimmerman’s screaming on the tape!

The State knew enough to destroy whatever evidence existed that exonerated Zimmerman.

Let alone Dr. Bao. Who doesn’t remember anything. And, was able to read off notes he had tucked down on his lap!

Guess what happens to someone who takes an exam doing that?

    randian in reply to Carol Herman. | July 26, 2013 at 5:50 pm

    I’d bet there would have even been DNA evidence under the nails of one hand. Or the other.

    Martin didn’t scratch Zimmerman, so not scraping Martin’s nails was most likely harmless error. The real problem was Bao not examining Martin’s hands for subcutaneous injury that would indicate punching. That lack of evidence was extremely prejudicial to the defense.

      Marco100 in reply to randian. | July 26, 2013 at 6:14 pm

      The strict forensic procedures were probably not followed because it was deemed an obvious case of justifiable self-defense at the scene.

      Cause of death was obvious and undisputed, a single close-range gunshot to the thorax causing catastrophic cardiac damage.

      GZ had obvious and physical injuries to and bleeding from the nose and back of the head consistent with what the witness Good told the police.

      Mr. Good told the police that TM was on top beating down on GZ in an MMA ground and pound style. Obvious self-defense from day one.

      Even crazy batshit insane juror B29, after saying the man she acquitted is a murderer, also said “This case should never have been brought to trial.” IOW not only was he NOT a murder, “it’s not even close.”

      Remember, there was no intention of arresting GZ or prosecuting the case until the pressure built up several weeks later. The forensics was sloppy because there was absolutely no question of how TM died and why he died.

      Undoubtedly the Sanford police concluded that TM was a likely burglar casing homes in the area, observed GZ call the police to report his presence, and attacked GZ to the point where GZ had to fire his weapon.

      The Sanford police never believed the family members since the father said the voice wasn’t TM and Jeantel didn’t even come forward. The local prosecutors refused to prosecute a bad case despite what must have been tremendous political pressure.

      Bao’s testimony was so messed up, in addition to him being incompetent, because he didn’t have a memory and he didn’t have a clue of this autopsy. He as much admitted that in his testimony and that’s why he needed crib notes.

Carol Herman | July 26, 2013 at 4:48 pm

Traveling from Miami to Sanford, trayvon hit the bus driver?


“The problem is that they aren’t hearsay and they aren’t character evidence. Hearsay is an out of court statement introduced to prove the truth of the matter asserted in the statement. If you introduced the out of court statement of a friend who said, “Trayvon Is a really awesome fighter” to prove his fighting skills, that would be hearsay. However, a series of statements by Martin discussing various fights he was in isn’t introduced to prove that he was in those particular fights, but that he has experience and knowledge about fighting. That’s not hearsay.”


Sorry Edgehopper you’re incorrect. If you introduce the TM phone texts because you want to show that TM knows about fighting BECAUSE he said he was IN some fights, then you ARE introducing the texts for the “truth of the matter asserted”–that he was IN some fights–and then asking the jury to draw the INFERENCE that, therefore, based on that experience of having been in some fights, he was an “experienced” fighter.

The “matter being asserted” via the texts is that he was, indeed, in some fights, and you are submitting the texts for the TRUTH of that. That you might want a further inference drawn from that evidence doesn’t negate the inadmissible hearsay nature of the evidence.

That’s simon-pure hearsay.

If you’re not trying to proffer those texts for the truth of what the statements say–that TM was in a number of fights–then the texts are not RELEVANT. Because they are not probative of any material fact.

The texts can’t be used for some other purpose–such as to show GZ’s state of mind at the time of the shooting–since GZ was unaware of the texts and they could not have had any affect on his state of mind.

Let me try it from another angle–suppose instead of cell phone texts, the defense had obtained Trayvon’s journal. Let’s say he took a creative writing class in school, and somehow they had gotten a hold of his journal from that writing class.

Then let’s say, in that journal, he wrote a number of anecdotes about beating people down, fighting people, bloodying them up, mugging them.

How is that journal admissible in evidence? Again GZ never knew about it so it has no bearing on his state of mind.

It’s pure hearsay just like every other blessed thing that anyone writes down as an out of court statement which is not subject to a hearsay exception.

Let’s take another, more obvious example. Let’s say Trayvon Martin gets shot but not killed so GZ is charged with aggravated assault. TM is not in critical condition, he’s recovering.

O’Mara hires a private investigator to take Trayvon Martin’s statement at the hospital. Not videoed, not under oath, just a P.I. taking a statement. This is six months before the trial. Trayvon gives a statement in which he brags about beating other people up, and admits that he started beating up the cracker because he didn’t like the way he was looking at him. Then the cracker pulled a gun out and shot him. Trayvon admits smashing his head in the sidewalk but denies he was actually trying to kill him. Trayvon not only verbalizes all this to the P.I., he writes it all down on a yellow legal pad, signs and dates it. Let’s even say the PI is a notary public and notarizes it.

O.K. 3 months later and 3 months before the trial is to start, Trayvon is out of the hospital in generally perfect health. He walks to the convenience store to get skittles and ice tea when BAM!!!! he is randomly run over by a bus driver and killed.

Is his notarized statement given in the hospital to the P.I. admissible or inadmissible at the trial?

I say it’s inadmissible UNLESS some other witness claims that Trayvon told that in-court witness that he didn’t have fights and was a peaceful person. But that’s an exception to the hearsay rule that doesn’t apply in this case.

Do you think the statement to the PI is admissible? If so, what hearsay exception applies?


“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.”


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.

Aside from the Zimmerman trial for the time being, the article is excellent and indeed explains clearly the Federal Laws regarding evidence admission.
Back to Zimmerman’s case, as most reasonable people view it, should have never come to trial.
Most know why it did. Thing is, there are individuals that should be held accountable for circumventing the law, and in fact, breaking the law, but in this new real world, and that very likely won’t happen.