Thursday, March 7, 2013
I write today to remind everyone that DD is not a critical prosecution witness because they can win this case without her testimony and her alleged lies about her age and whether she went to a hospital, instead of the funeral, probably are not admissible.
She is not a critical prosecution witness because the physical evidence, forensics, location of Trayvon’s body and the spent shell casing, and the defendant’s conflicting and inconsistent statements bury him beneath a mountain of evidence.
Although we will not know until trial, I am anticipating that the defendant’s interlocking phone calls with others before and after he killed Trayvon will eliminate any lingering doubt that anyone might have about his guilt. Even if it does not, I do not believe the prosecution’s case will be in any jeopardy.
BDLR will likely wait to call DD until late in his case after he has put in all of the evidence that he believes he needs to introduce in order to convict the defendant. With everything else in place, her testimony will merely confirm what everyone on the jury already knows. The jury likely will believe her because her testimony will be self-authenticating. That is, even though she had never been to the RTL, everything that she says Trayvon told her will be confirmed by the interlocking phone records of the calls she had with Trayvon, the physical layout of the place and the weather.
Because most of Trayvon’s statements to her are inadmissible hearsay, unless he was relating a present sense impression or excited utterance, which are two exceptions to the hearsay rule, I expect her testimony will be limited to he told her that,
(1) he was afraid of the creepy guy following him in the car;
(2) he ran to get away from him; the creepy guy suddenly showed up on foot; and
(3) he asked someone why he was following him;
Then she heard an older male voice respond, “What are you doing here?”
Then she heard what sounded like physical contact followed by Trayvon shouting, “Get off me,” and the phone went dead. She attempted to call him, but he did not answer.
That’s it. She does not know anything else.
The defendant’s supporters with considerable support from the lame-stream U.S. media and various lawyer-pundits who should know better have been saying things like, “The prosecution’s case is crumbling,” because Witness 8 (DD) lied or committed perjury,
(1) about her age; and
(2) when she claimed that she did not attend Trayvon’s wake or funeral because she was not feeling well and went to a hospital.
The prosecution’s case is not crumbling.
First, even assuming she lied, and I do not believe that she did, she most certainly did not commit perjury because neither of her statements are about matters that are material or important to the outcome of this case. Since materiality is an element that must be proven beyond a reasonable doubt to convict someone of perjury, there is no basis to charge her with that offense.
Second, the two alleged lies do not make it more or less likely that she is an untruthful person since a truthful person may lie about their age or when providing an excuse for not attending a funeral.
The rules of evidence permit Judge Nelson to exercise her discretion in deciding whether to permit the defense to cross examine DD about these two alleged lies.
The relevant rules of evidence are 608(b) and 403.
Evidence Rule 608(b) prohibits evidence of specific instances of the misconduct of a witness for the purpose of attacking her credibility, unless those specific instances of misconduct concern her character for truthfulness or untruthfulness.
Evidence Rule 403 provides that even relevant evidence may be excluded if the judge finds that its probative value “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
I can see Judge Nelson deciding that the slight probative value of the two alleged lies that she is an untruthful person is overwhelmed by their potential prejudice, since the alleged lies have nothing to do with any issues in the case, and her testimony is self-authenticating.
The admissibility of evidence about these two alleged lies probably will be the subject of a motion in limine by the prosecution for an order to prohibit the defense from mentioning them in front of the jury or cross examining her about them.
Even if Judge Nelson denies that motion, the prosecution can minimize the potential damage of that evidence by bringing it out on direct and asking her to tell the jury why she did not tell the truth about those two matters.
The defense would have to be careful cross examining her because the jury might not like it, if they do not treat her in a respectful manner.
When all is said and done by the witnesses and the lawyers, and the jury retires to deliberate on a verdict, I doubt that DD’s credibility will be a matter of any concern or discussion regarding whether the defendant killed Trayvon in self-defense.
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