Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.

Zimmerman: Snapshot of an Opening Statement

September 17, 2012

I offer this example of the proper way to give an opening statement. This is an excerpt from the meaty section of the statement that I would give following the introduction and brief reference to the presumption of innocence, burden of proof, and the proof beyond a reasonable doubt standard.

Consider this a snapshot out of a longer and more detailed opening statement that I would give, if I were the prosecutor. Note how I seem to disappear in plain view by allowing the evidence to speak for itself, instead of me pontificating about the evidence. I do this out of respect for Trayvon Martin. This is his story and I will let him tell it through the evidence. This case is not about me. It’s about justice for Trayvon Martin.

The Medical Examiner will testify about the autopsy he conducted and he will tell you that the fatal shot entered Trayvon’s chest 1 inch left of the midline and 3/4 of an inch below the nipple. The muzzle of the gun was 2 to 4 inches away from his chest and the hollow point bullet that ended his life went directly from front to back without varying up or down, left or right, and entered the right ventricle of his heart destroying it.

He will tell you that the bullet fragmented after it entered the body collapsing both lungs. There was no exit wound.

The path of that bullet did not happen by chance as two people grappled and twisted in the night.

No, an analyst from the Florida State Crime Lab will tell you that she examined young Traynon’s clothing, his outer sweatshirt and his inner sweatshirt. She will tell you that the muzzle of the gun was in contact with the outer sweatshirt when this defendant pulled the trigger sending the exploding hollow point bullet into young Trayvon’s heart.

She will tell you that the bullet holes in the inner and outer sweatshirts align perfectly, but they do not align with the entry wound.

She will tell you the sweatshirts had to be gripped together and pulled down to align with the wound.

Ladies and Gentlemen, the evidence will establish beyond a reasonable doubt that this defendant held young Trayvon still at gunpoint under threat of death with his gun in his right hand while gripping young Trayvon’s sweatshirts with his left hand.

This defendant admitted to police how he fired the fatal shot. He told them that he extended his right hand beyond his left hand so that he would not accidentally shoot it. He aimed and he fired.

The Medical Examiner will tell you that, despite that catastrophic wound, young Trayvon likely remained conscious for a minute or two in extreme agony aware that he was dying as he slowly suffocated to death in his own blood.

Ladies and Gentlemen, the evidence will show that young Trayvon Martin died that night in the dark and in the cold rain because this defendant shot him to death.

The evidence will also show that young Trayvon died without knowing who this man was and why this man stalked, hunted him down, and executed him.

The evidence will establish that beyond a reasonable doubt because this defendant told the police that he never told young Trayvon who he was or why he was following him.

Finally, you will hear young Trayvon’s last words before he died. It is shriek that you will never forget.

Ladies and Gentlemen, we have a difficult and solemn task ahead of us. We have come from near and far. We come from all walks of life. We are here to do justice and together we will do it.

If I were the prosecutor, I probably would not mention the evidence that GZ sat on Trayvon’s back and asphyxiated him instead of calling 911 and attempting CPR. I would bring that out at trial, of course, and hit it hard during the rebuttal part of my closing argument.

The point I am trying to make here is that the unvarnished facts of this case are far more horrifying than any descriptive words.

No one has to call George Zimmerman a demon.

We know him by what he did.

He is what he is and there are no words to describe it.

This is how to deliver an opening statement that no one will ever forget.

That’s what you need to do when you are a prosecutor. You have to win your case with your opening statement.

And you have to do it without notes establishing eye contact with each juror one-at-a-time as as you move through each point.

You must not speak too long, too fast or too slow.

You must vary the pace of your speech.

And you must also vary the volume and pitch.

The human voice is a powerful musical instrument that all good trial lawyers learn to master.

We all know the art of story telling and we know that the courtroom is our stage.

Zimmerman: Opening Statements

September 15, 2012

Opening statements rank second in order of importance right behind jury selection.

An opening statement is not an argument. It’s an opportunity for each lawyer to get the trial underway by telling the jury what you expect the evidence will show.

The Opening Statement is best delivered in the form of a story and should not last more than 10 or 15 minutes.

Prosecutors usually start by introducing the lead investigator and other prosecutors who will assist them. Then they acknowledge the defendant is presumed innocent and they will have the burden of proving he is guilty beyond a reasonable doubt.

Then they say, “Here’s how we are going to do that . . .

The evidence we are going to introduce in this trial will show that on a rainy Sunday evening on February 26th while most of the country and many of you had just finished watching the first half of the NBA All Star Game, a sweet, peaceful, and non-violent 17-year-old kid by the name of Trayvon Martin volunteered to walk to the 7/11 to get some tea and Skittles to share with his 8-year-old little brother.

The defense can give an opening or delay it until after the prosecution rests.

I always gave an opening to remind jurors that we also had a case to present. I wanted to give them something to think about after the prosecution’s opening. I did not want them to form an opinion based on the prosecution’s opening and then have to watch along with them for several weeks or months as the prosecution constructed the edifice of guilt that it had promised to build.

I would zero in on a weakness and tell the jury to think about it as the building went up.

If you were the prosecutor or defense attorney, what points would you want to include in your narrative?

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