Chauvin Pre-Trial Day 1: Will Floyd’s Prior Arrest-Related Drug Ingestion Be Admitted As Evidence?

Chauvin Pre-Trial Day 1: Will Floyd’s Prior Arrest-Related Drug Ingestion Be Admitted As Evidence?

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

As a reminder, I am “LIVE Parlering” the trial in real-time over at my Parler account, which you can find using my Parler handle:  @LawofSelfDefense.

This afternoon the prosecution, meaning Assistant Attorney General Matthew Frank, and the defense, meaning Attorney Eric Nelson, worked through a bunch of evidentiary motions before trial Judge Peter Cahill.

These motions are entirely routine in any criminal prosecution, and in a sense they are part of defining the battlefield on which the legal fight will be won or lost at trial.  In effect these motions define what evidence and legal arguments will be permitted to be made at trial.  The preference is to hash these issues out before the trial itself begins so that the trial proper, when the jurors are actively participating, can be as efficient as possible.

Generally, these evidentiary motions are referred to as in limine motions, essentially meaning motions to limit what evidence will be permitted before the jury.  For example, if a suspect was pulled over and illegal drugs were discovered in the car, but the discovery was the result of an unconstitutional search, the defense counsel would make an in limine motion to exclude the unjustly discovered drugs from being introduced as evidence at trial.  In practice, these types of motions tend to be more broad ranging than just excluding evidence, however.

Today’s motions in the Chauvin case, for example, touched on a wide variety of both evidentiary issues as well as simple matters of process and practice for the trial itself.

One motion (Motion #2), for example, addressed how most properly to refer to Chauvin, Floyd, and others during the course of the trial.  It’s theoretically permissible to refer to Derek Chauvin throughout the trial as “the defendant” and to refer to George Floyd throughout the trial as “the victim” or “the deceased.”

In practice, however, such phrasing tends to be emotive and prejudicial, and many judges prefer to avoid such terminology.  Fortunately for the defense, Judge Cahill is among those, and he expressed a strong preference for the prosecution and defense to refer to parties and witnesses by their actual names—so, “Mr. Chauvin” and “Mr. Floyd”—rather than a legalistic label.  The state and defense agreed to abide by the court’s preference, while noting that they had only incomplete control over how witnesses might phrase things.

Another motion (Motion #1) dealt with the issue of whether a witness could be re-called to the stand if, after they initially testified, they had then viewed the testimony of other witnesses.  It is normal practice to avoid having witnesses hear the testimony of other witnesses, because doing so can color their own testimony.  All witnesses, while waiting their turn, are told to not listen to the testimony of earlier witnesses, and are not permitted in the courtroom prior to their own testimony to prevent this practice.

But what about after a witness is done testifying?  If they truly are done, and will not be called back into court to testify again, there’s no reason they shouldn’t hear the testimony of other witnesses. But what if they listen to such later witness testimony, and suddenly discover that they are being called back to testify a second time?

Here the court stated its preference that a witness not be recalled if after they themselves testified they later heard testimony of other witnesses.

Most of the motions discussed this afternoon resulted in little argument between the state and prosecution, often no argument whatever, but there were some exceptions.  One such exception had to do with the admissibility of evidence about George Floyd having ingested illicit drugs upon arrest, to the point of having to be hospitalized.

The defense narrative of innocence in this case is obviously that what killed Floyd was not Chauvin’s knee but rather the three-fold fatal dose of fentanyl found in Floyd’s body upon medical examination.  The belief is that when he realized he was about to be arrested for attempting to pass a bad $20 bill, Floyd ingested meth and fentanyl drugs he had on his person in order to prevent their discovery by the arresting officers.  The dose ingested, unfortunately for Floyd, for Chauvin, for all of Minneapolis, and for the United States generally, was more than sufficient to prove fatal.

Almost exactly a year prior to the day Floyd died with a fatal dose of fentanyl in his body he was also the subject of a lawful arrest and also apparently ingested illicit drugs to avoid their discovery by the arresting officers. In that case Floyd received hospital care and did not die as a result of the drug ingestion.

Naturally, with a nearly identical drug ingestion event having occurred with Floyd merely a year prior to his death, the defense would like to get evidence of that prior event in front of the jury.  Their prior efforts to get that event admitted into evidence, however, had not gotten traction because the judge perceived the evidence as more prejudicial than probative.

The term probative refers to the ability of a piece of evidence to make a claimed fact apparently more or less true. In effect, it is evidence that allows a finder of fact to determine whether they believe a claimed fact to be true or false.

An example might involve a case in which a defendant is accused of having stolen a watch owned by the victim.  Upon arrest, the defendant is found wearing a watch that has the victim’s initials engraved on the back, and those initials are not shared by the defendant.  The defendant’s defense is that the watch is actually his own property.  The evidence of the victim’s initials is probative to determining whether the watch is actually the property of the victim or of the defendant.

The term prejudicial refers to evidence that is likely to unduly influence a finder of fact in an improper way.  Prejudicial evidence is frequently of a type intended to suggest that because the accused committed some bad act in the past that he has a propensity to commit the independent and unrelated bad act of which he is now accused.

An example might involve a case in which a defendant is accused, again, of having stolen a watch owned by the victim.  Upon investigation it is learned that five years prior the defendant had been convicted of drunk driving.  Although the drunk driving conviction is true, it is not relevant to the charge of theft, and if admitted into evidence might improperly lead the jury to conclude that the defendant is a “bad person” generally and thus has a propensity to commit the crime of theft.

Often some piece of offered evidence has some probative value as well as some prejudicial baggage, and it falls to the judge to balance the two in determining whether the evidence should be admitted before the jury. In drawing that balance the judge looks both at the extent to which the offered evidence will help the finder of fact determine the truth of any element of the crime charged, on the one hand, and the extent to which the evidence is simply prejudicial on the other.

High probative value and low prejudicial tendency, and the evidence is likely admissible.  Low probative value and high prejudicial tendency, and the evidence is likely inadmissible.

In the matter of Floyd’s 2019 drug ingestion event, Judge Cahill appears to feel rather strongly that the evidence of that event is far more prejudicial than probative.  A large part of the limited probative value of that 2019 ingestion evidence, however, is really that it’s largely duplicative of other evidence that clearly is admissible in this trial.

The defense argued this afternoon that the evidence of the 2019 ingestion event ought to be admitted as proof of a modus operandi, or “method of operation,” in effect that “this is what Floyd does when confronted by police.”

Modus operandi is an exception allowing for the admission of prior bad act evidence when the prior bad acts appear to be a consistent pattern or practice of behavior.  So, someone charged with second-story burglary might not have a prior drunk driving conviction admitted as evidence at their trial for second-story burglary, but if they have prior convictions for second-story burglary in their record those convictions might well be admissible as a pattern or practice of behavior in their trial for the newest charge of second-story burglary.

Evidence of Floyd’s drug ingestion as modus operandi evidence would be helpful to the defense because, again, this ingestion is the defense argument for the cause of Floyd’s death, rather than Floyd’s death having been caused by Chauvin’s knee.

In making this argument before Judge Cahill this afternoon, however, defense counsel met a cool reception. I should mention that the defense had offered this evidence previously, and Judge Cahill had given a kind of blanket rejection at that time, but here the defense is re-offering the evidence on the grounds that they had additional details that they were lacking when they made the initial offer of evidence.

If the point of this prior ingestion event is to help the finder of fact conclude that Floyd had ingested drugs on the day of his death, as well, then it really seems duplicative of other evidence in the case. After all, the medical examination of Floyd’s body after his death found a three-fold fatal dose of fentanyl in his system, as well as methamphetamine, and that medical examination evidence is admissible.  So, the finder of fact can conclude that Floyd died of drug toxicity, rather than Chauvin’s knee, without the need for evidence of the prior drug ingestion event.

And if the evidence of the prior dug ingestion event had little probative value, in the context of other available evidence of Floyd’s drug toxicity, it begins to look a lot like it’s being submitted largely to show a propensity for bad conduct—which is not a proper basis for the admission of evidence.

So, there’s a general rule of evidence, termed 404(b), that generally excludes prior bad acts or character evidence that’s offered as proof of unrelated currently charged misconduct, stating:

404(b). Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. …

As those ellipses suggest, however, there are a number of exceptions to this exclusion of admissibility—like the modus operandi exception we discussed above.

… It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(You can find the entirety of Minnesota Court Rules of Evidence Rule 404 here.)

In the exchange between the defense counsel and Judge Cahill on this motion it’s clear that the Judge is having difficulty finding a 404(b) exception that would allow for the admission of the prior bad act of Floyd’s 2019 arrest-related drug ingestion.

Frankly, I thought the defense counsel in arguing for the admissibility of this prior drug ingestion evidence did a less than stellar job here, and certainly should have been better prepared to argue more forcefully given the prior cool treatment the argument had received from Judge Cahill in the past.

Judge Cahill did note that evidence of that prior arrest-related drug ingestion event could be admissible for purposes other than, apparently, mere propensity.  For example, if Chauvin had knowledge of or had participated in that prior arrest, that might have informed Chauvin’s own perceptions and conduct during the later arrest in which Floyd died, and that would be a basis for admissibility completely independent of Floyd’s own propensity.

The defense is not arguing, however, that Chauvin either had knowledge of nor participated in that prior arrest, so that basis for admissibility does not exist in this case.

Alternatively, the door to this prior arrest-related ingestion event could be admissible if the prosecution “opened the door” by arguing that Floyd’s drug levels were not the result of voluntary ingestion.  If, for example, the state were to suggest that perhaps Chauvin had forced the drugs into Floyd’s mouth, then the defense could offer the evidence of the prior ingestion event to show the jury that it was likely that Floyd had, in fact, ingested the drugs himself.

The state is not, however, suggesting that the drugs got into Floyd’s system in any manner other than by voluntary ingestion.

If you’re interested in hearing that roughly 10-minute long argument by the defense, and Judge Cahill response, to can enjoy that exchange here:

In conclusion on this issue, Judge Cahill didn’t reject the admissibility of the drug ingestion evidence outright, and he left the door open for the defense to file a more detailed motion making their argument for admissibility of that evidence, but he clearly was not favorably disposed to the argument in the moment.

Most of the other motions in limine discussed today were settled without objection, meaning the state and defense came to an agreement between themselves and the judge simply noted that the issue captured by that motion had been resolved.  Many of these were simply matters of evidentiary discovery and sharing between the state and defense.

A few of the motions, like that involving Floyd’s prior arrest-related drug ingestion, were “reserved,” meaning in effect that they are still in play and not yet resolved by the court at this time.

After the motions discussion was wrapped up for the day, there was some entirely separate progress made on the jury selection front, despite the jury pool having been dismissed almost as soon as they’d arrived at the courthouse this morning.

Specifically, based on individual juror responses to the 14-page juror questionnaire, the state prosecutors and the defense team were able to agree to dismiss 16 of the first 50 pooled jurors for cause.

Dismissing a prospective juror “for cause” doesn’t mean they’ve done anything wrong, it just means that there’s a good reason for them to not serve on the jury. This “cause” could be some relationship a juror has with one of the parties involved in the case, it could be a home responsibility that could not be met consistent with the duties of serving on a jury in a multi-week murder trial, or any other of a number of perfectly good reasons.

When the state and defense can agree that a prospective juror can be dismissed for cause, then obviously there’s no argument between the parties with respect to that prospective juror and they are simply dismissed from the case.

More difficult are instances in which one party wants a prospective juror removed for cause, and the other party objects, perhaps because the other party would strongly prefer to have that person serve on the jury for strategic reasons.

In the case of such disagreement the parties can each make their arguments, for cause and against cause, before the judge, and the judge will determine whether cause exists to dismiss the prospective juror.  If so, the prospective juror is dismissed.

If the judge fails to find cause for dismissal, however, there’s another way the party that wants the prospective juror dismissed to get them off the trial, and that’s by using one of their peremptory strikes.

Each party in a criminal trial has a limited number of peremptory strikes they can use to dismiss a prospective juror without having to make a “for cause” argument.  Normally in Minnesota criminal cases the defense is granted 5 peremptory strikes and the state is granted 3 peremptory strikes.

In this high-profile case, and amidst concerns about possible difficulty in drawing the necessary 12 jurors and 2 alternates into an unbiased panel, Judge Cahill has tripled the normal number of peremptory strikes, to 15 for the defense and 9 for the state.

With that, the court recessed for the day.

Trial proceedings are scheduled to begin again tomorrow at 8am CT, with the state and defense meeting again with Judge Cahill to discuss any still-open motions that need to be resolved. Then the jury pool is schedule to report to the courthouse at 8:30am CT, with jury selection scheduled to being at 9:00am CT.

Of course, all of that could still be brought to a screeching halt at the instruction of the Minnesota court of appeals, as discussed in today’s earlier post on today’s court proceedings, but we won’t know that until it happens. Or not.

OK, folks, that’s all I have for all of you today.  Until tomorrow, then, stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

[AFB Note: Corrected misspelling of “Cashill” to “Cahill,” 3/19/2021]

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