Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.
The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?
Yet, at the same time, he probably cannot win because of his many conflicting statements.
First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.
The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.
Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.
Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.
Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.
Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.
Statements to police officials during custodial interrogations are admissible at trial,
(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and
(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.
This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.
Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.
Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.
Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:
“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.
Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.
This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.
Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.
Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.
This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.
Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.
But that’s not fair, you say.
That complaint happens in every courtroom across America every day, but it’s the law.
This is why, as a practical matter, George Zimmerman must take the stand and testify.
Can he refer to his exculpatory statements while he is testifying?
No, because they are hearsay.
What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?
The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.
Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.
I know this because I have done it to witnesses many times.
Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.
The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.
This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.