CherokeeNative posted a comment asking me whether Zimmerman’s statements to police and others will be admissible during the trial.
CherokeeNative said the prosecutor mentioned in court recently that the defense will not be permitted at trial to introduce any of Zimmerman’s statements to police and others. Instead, Zimmerman will have to take the stand and testify, if he wants to present his defense.
I did not watch the hearing, but I imagine the prosecutor was expressing some understandable frustration that O’Mara has been trying his case during a bail hearing, instead of specifically explaining why Zimmerman should be permitted to secure his release by posting another bond after conspiring with his wife to materially deceive the court by claiming indigency when they knew he had received approximately $150,000 donated to his PayPal account at his internet site. The prosecutor wants to cross examine Zimmerman about about all of his coded machinations to, in essence, play a shell game with the court to hide the money. No doubt he’s also tired of O’Mara’s constant repetition of Zimmerman’s statements to police and his claims that Zimmerman’s injuries establish the truth of those statements.
He no doubt knows more than we know and we know that Zimmerman lied. Therefore, I can understand his frustration. Nevertheless, he will get his chance, so he will have to be patient.
Okay, put on your waders because we are about to trek through a muddy swamp called the hearsay rule.
First, every oral or written assertion, including non-verbal conduct, if intended as an assertion, that George Zimmerman made outside the courtroom regarding what happened in this case is hearsay, if offered by the defense at a hearing or during the trial to prove that whatever he asserted is true.
Why? Because hearsay is defined in evidence rule 801 as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Second, hearsay is not admissible, unless pursuant to another evidentiary rule or exception.
The effect of these rules means that a defendant in a criminal case cannot introduce at a hearing or at trial a prior statement that he made, if he offers the statement to prove what he asserted in the statement.
Example: A detective is testifying in a bank robbery trial and the defense attorney asks, “My client told you that he was at work that day and did not rob the bank, didn’t he?”
The question is improper because it’s being offered by the defense to prove that the defendant did not rob the bank.
What happens, however, if the prosecutor seeks to offer the statement because it can prove the defendant was not at work as he claimed?
Answer: The defendant’s statement is admissible because it’s an admission by the party opponent, who is the defendant in this hypothetical. See evidence rule 801(d)(2).
The purpose of the admission-by-a-party-opponent rule is to permit a party to introduce statements by the opposing party. To simplify that process, rule 801(d)(2) exempts such statements from the hearsay rule.
Bottom Line: None of Zimmerman’s statements to the police will be admissible at his trial, unless the prosecution offers them. Do not expect the prosecution to do that, unless it is offering them into evidence to prove that he lied.
Note that Zimmerman also made statements to various medical people.
Question: Are those statements admissible?
Answer: Yes, under evidence rule 803(4), provided his statements were made “for purposes of a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment.”
Note that we are likely to see issues arise regarding the admissibility of any statement Zimmerman made to a medical person, if the statement contains an assertion about what happened during the confrontation and struggle (i.e., who did what to whom). That portion of his statement will fall outside the boundary of the medical-diagnosis exception to the hearsay rule, if it is not “reasonably pertinent to diagnosis or treatment.”
The purpose of this exception to the hearsay rule is to admit statements that are elicited in response to questions asked by medical personnel to diagnose and treat an injury or illness. The patient/defendant might make any number of statements about any number of things that are not “reasonably pertinent to diagnosis or treatment.” Such statements do not fall within the exception and would be excluded as inadmissible hearsay, if offered to prove the truth of the matter asserted in the statement.
I have no reason to believe that Judge Lester does not know the hearsay rule. Judges have considerable latitude to admit evidence at pretrial hearings, such as a bail hearing, that would not be admissible at a jury trial. Judges are presumed to know the rules of evidence and not base their decisions on evidence that they would not permit a jury to hear.
I believe Judge Lester is giving the defense wide latitude to present whatever evidence it wants to present because most judges I know routinely do that at pretrial hearings. The prosecutor is complaining because that is what prosecutors do to periodically remind a judge that the defense is wandering far afield instead of addressing issues specific to the hearing.
The specific issues I would ask the defense to explain, if I were the judge are:
1. Why did George Zimmerman misrepresent to the court that he was indigent and conspire with his wife, Shellie Zimmerman, to conceal from the court that he had received $155,000 from donors to his internet account?
2. Why should the court not conclude that he is a flight risk and cannot be trusted, given hisirresponsible judgment and egregious behavior in misrepresenting that he was indigent when he knew he was not indigent, and his decision to involve his wife and sister in a scheme to use their bank accounts to hide the $155,000 and to deny any knowledge about that money, if asked under oath, in order to conceal it from the court?
3. Doesn’t George Zimmerman’s irresponsible judgment and egregious behavior in involving members of his family in a scheme to falsely claim indigency, conceal $155,000 in assets, and lie about it, if necessary establish that he is a danger to others, if released.
I would deny the defense motion.