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When could Zimmerman's history come in?

AlfredENeuman

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It's generally accepted that neither Martin's school suspensions for pot nor Zimmerman's history of the assault on the DEA agent or his restraining order will come into trial, and I think that will most likely hold in this trial, but if Zimmerman testifies, I was curious if there was something he could say that would "open the door" and allow the prosecution to tell the jury about it, so I looked it up.

Here's what I found:

http://www.justanswer.com/criminal-law/71med-does-criminal-history-trial-not.html

The fact that you testify does not open up your criminal record. If, however, you testify in a manner where something you say can be impeached with your record then they prosecution can use it. For example, if you say I've never touched a gun, and you have a conviction for possession of a firearm then they can use it. Use your imagination. If the prosecution thinks they can reasonably use it, they will. If, however, you tell the complete truth while on the stand then you greatly limit their ability to do this.

Prior to your testimony, however, a Sandoval hearing will take place where the prosecution can question you about your criminal past if you testify. Your attorney should state that asking you about prior convictions will be to prejudicial to you and will force you to reconsider testifying.

Usually, this leads to the decision that the prosecution can ask you if you have ever been convicted of a crime but cannot ask the facts underlying the conviction.

So my first question is what kind of question could they ask Zimmerman (again, should he take the stand) that would satisfy this standard?

Can they ask him if he, in general, every gets angry? Or if he's ever been in a fight before? Or if he's ever settled his differences with his hands or fists?

I don't think so, but it's an interesting question, since it would certainly hurt his chances if the jury heard this stuff.

Anyway, let's not rehash the other threads here, let's only discuss how prior history might come in to the trial.

Extra points for case law cites.
 

AlfredENeuman

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Another interesting link on this:

Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes | The Legal Workshop

Our analyses confirm that defendants with and without criminal records testify at different rates; furthermore, the likelihood of learning about a defendant’s criminal record is strongly linked to whether the defendant takes the stand. In the felony jury trials in the NCSC data set, 60% of defendants without criminal records testified compared to 45% with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. Statistically significant associations exist (1) between the presence of a criminal record and the decision to testify at trial, and (2) between the defendant testifying at trial and the jury learning about the defendant’s prior record.

So if Zimmerman takes the stand, he stands a 50/50 chance of having his prior actions come into trial. That's actually kind of high and surprising.
 

Fisher

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It's generally accepted that neither Martin's school suspensions for pot nor Zimmerman's history of the assault on the DEA agent or his restraining order will come into trial, and I think that will most likely hold in this trial, but if Zimmerman testifies, I was curious if there was something he could say that would "open the door" and allow the prosecution to tell the jury about it, so I looked it up.

Here's what I found:

http://www.justanswer.com/criminal-law/71med-does-criminal-history-trial-not.html



So my first question is what kind of question could they ask Zimmerman (again, should he take the stand) that would satisfy this standard?

Can they ask him if he, in general, every gets angry? Or if he's ever been in a fight before? Or if he's ever settled his differences with his hands or fists?


I don't think so, but it's an interesting question, since it would certainly hurt his chances if the jury heard this stuff.

Anyway, let's not rehash the other threads here, let's only discuss how prior history might come in to the trial.

Extra points for case law cites.

In my state the answer would be no, you cannot ask those questions directly without a door having been opened by the witness.It is in the rules of evidence, Prior acts are not automatically admissible unless you can show that they are a matter of habit as opposed to similar incidents. It is kind of an art form that you develop in litigation. You take something the witness says and try to dance them around it and hope they slip up and open the door by saying something you can hang your hat on. An example in this case might be something along the lines of:

"You testified that you were scared for your life. When exactly did you first become scared that day"
"The kid was looking all crazy eyed like he was on something and yelling and screaming and coming at me"
"Did he have a weapon?"
"No, I don't know. Not that I saw."
"Well, why were you scared for your life?"
"I...I don't know...I just was. I am not like that, someone who gets into fights and stuff. I just wanted to make sure he wasn't robbing people and next thing I know he is coming at me."

At which point Zimmerman has opened the door to prior fights, prior acts of physical violence, etc. At which the questions become much more directed:

"Well, you did assault a DEA agent on X date, isn't that correct?"
"Well, you did have a restraining order taken out against you by Y for (reason here) didn't you?"

It is just something you have to work to get in. Sometimes it is like pulling teeth, and sometimes you have to try to get it out of other witnesses to open the door by saying something like "George would never hurt anyone." at which point you can usually ask "Well did you know that he assaulted a DEA agent?" and pull out the old "It is not asked for the truth of the matter but goes to the basis of the witness's opinion"

Quite frankly, I would try to get it in early if I were his lawyer instead of hiding from it. I have no problem getting negative things like that in when my client is on the stand so I can control it and smooth out the edges before the other side tries to set up a gotcha moment.
 

AlfredENeuman

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In my state the answer would be no, you cannot ask those questions directly without a door having been opened by the witness.It is in the rules of evidence, Prior acts are not automatically admissible unless you can show that they are a matter of habit as opposed to similar incidents. It is kind of an art form that you develop in litigation. You take something the witness says and try to dance them around it and hope they slip up and open the door by saying something you can hang your hat on. An example in this case might be something along the lines of:

"You testified that you were scared for your life. When exactly did you first become scared that day"
"The kid was looking all crazy eyed like he was on something and yelling and screaming and coming at me"
"Did he have a weapon?"
"No, I don't know. Not that I saw."
"Well, why were you scared for your life?"
"I...I don't know...I just was. I am not like that, someone who gets into fights and stuff. I just wanted to make sure he wasn't robbing people and next thing I know he is coming at me."

At which point Zimmerman has opened the door to prior fights, prior acts of physical violence, etc. At which the questions become much more directed:

"Well, you did assault a DEA agent on X date, isn't that correct?"
"Well, you did have a restraining order taken out against you by Y for (reason here) didn't you?"

It is just something you have to work to get in. Sometimes it is like pulling teeth, and sometimes you have to try to get it out of other witnesses to open the door by saying something like "George would never hurt anyone." at which point you can usually ask "Well did you know that he assaulted a DEA agent?" and pull out the old "It is not asked for the truth of the matter but goes to the basis of the witness's opinion"

Quite frankly, I would try to get it in early if I were his lawyer instead of hiding from it. I have no problem getting negative things like that in when my client is on the stand so I can control it and smooth out the edges before the other side tries to set up a gotcha moment.

Great answer. What do you think of the study I linked to above? It said that 50% of defendants who testify see their records brought in. Does that sound accurate? And they also say it's linked to a negative "halo" effect that really hurts your case.
 

ABC10

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The charge was not assault of a DEA agent but interfering with a LE officer and reduced to a misdemeanor and the sentence for such high crimes was a class.
 

AlfredENeuman

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The charge was not assault of a DEA agent but interfering with a LE officer and reduced to a misdemeanor and the sentence for such high crimes was a class.

Can you leave that for the other thread? We hashed this to death there. This thread is about how prior history could come in, preferably with case law or examples.

TIA.
 

ABC10

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Can you leave that for the other thread? We hashed this to death there. This thread is about how prior history could come in, preferably with case law or examples.

TIA.

I didn't quote Post #3 in Post #4 about the DEA agent but did responded to it. Sure, I can leave it for another thread.
 
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Fisher

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Great answer. What do you think of the study I linked to above? It said that 50% of defendants who testify see their records brought in. Does that sound accurate? And they also say it's linked to a negative "halo" effect that really hurts your case.

I'd say that is probably correct. Can and does just depends. If they had a really negative history I would keep them off the stand or ask for a bench trial as judges are so used to hearing messed up stuff 24/7 not much shocks them or even causes them to raise an eye brow. In this case, however, he is not going to be able to mount an effective self-defense claim without testifying. As for the halo, sometimes you just have to deal with bad facts/situations and try to cleanse in argument like "Obviously my client isn't a perfect person with a perfect history, but very few people are. None of that changes the facts of what happened on that night. The facts are: yada yada yada"

That said, I think Zimmerman has a tough row to hoe even without all that stuff. Being told essentially to leave the guy alone in that 9/11 call no matter how the technocrats parse it to ending up shooting the kid is going to be met with great skepticism me thinks as to his self-defense claim. With no eyewitnesses, it paints him as the aggressor, rightfully or wrongly.
 

WorldWatcher

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Great answer. What do you think of the study I linked to above? It said that 50% of defendants who testify see their records brought in. Does that sound accurate? And they also say it's linked to a negative "halo" effect that really hurts your case.


I'd make a bet that a large majority of that 50% don't have the caliber of lawyer of O'Mara and West prep'ing them for trial in such a high profile case.


>>>>
 

Fisher

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I'd make a bet that a large majority of that 50% don't have the caliber of lawyer of O'Mara and West prep'ing them for trial in such a high profile case.


>>>>

Well there is a rule at play in a lot of cases that may skew the numbers more than people think ( Rule 609. Impeachment by Evidence of a Criminal Conviction | Federal Rules of Evidence | LII / Legal Information Institute )
My state has a version of it--you can often ask "Have you ever been convicted of a felony or a crime involving lying, cheating, or stealing" and that is it unless the witness screws up and says No when they have at which point the prosecution whips out their criminal history and goes line by line through your felonies and crimes involving lying cheating or stealing.
 

WorldWatcher

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The charge was not assault of a DEA agent but interfering with a LE officer and reduced to a misdemeanor and the sentence for such high crimes was a class.


The charge was not "interferring with a LE officer". The original charges were:

Charges: ZIMMERMAN, GEORGE MICHAEL Statute Level Date
1. CR-RESISTING OFFICER WITH VIOLENCE 843.01 Third Degree - Felony 07/16/2005
2. BATTERY ON LAW ENFORCEMENT OFFICER 784.07(2)(B) Third Degree - Felony 07/16/2005

http://myclerk.myorangeclerk.com/default.aspx (Search by name).

The felony charges were reduced to misdemeanor charges as part of a plea deal the the "class" was anger management.

You are correct though, it wasn't a DEA agent. The officer was a law enforcement officer assigned to a Florida State Agency having to do with Buisiness and enforcement of Florida Alcohol laws.



>>>>
 

ABC10

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I disagree. I think the aggressor is the person who made the first contact and threw the first punch and that happens to be Martin. "We don't need you to do that" from a non LE Dispatcher is not a "leave the guy alone" statement, no matter how it is cut particularly as George said "okay" before being assaulted by Martin. And there are pictures to prove George was punched taken by a Police Officer on the scene and submitted into Discovery by the State. There are also two witness who saw the George on the bottom.
George was never convicted of a felony.
 

WorldWatcher

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I think the aggressor is the person who made the first contact and threw the first punch...

Opinion noted, but that is not the standard under Florida Law. Under 776.041 the initial aggressor is one that "Initially provokes the use of force against himself or herself". It does not require them to throw the first punch.

776.041 - - 2011 Florida Statutes - The Florida Senate


and that happens to be Martin.

And your evidence of this beyond the statement(s) of the man charged with the crime is....?

(And no, evidence of losing a fight is not evidence of who started it.)



>>>>
 

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We got a CNN transcript where State Detective Gilbreath when asked if he had uncovered any evidence to dispute George's account of the sad event, said "NO" I believe that and it is not my evidence. The State has produced no discovery to date that George was not assaulted by Martin but reinforced with pictures in living color taken by a cop on the scene showing George was beaten up, had a broken nose and other facial injuries.
 

year2late

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I believe that Trayvon threw the first punch. I have absolutely no issue with it. BUt he did so after a man followed him in his vehicle, got out and followed him some more - while Trayvon was alone in the dark.

I do not think what Trayvon did was wise, but he had a teenaged brain, with teen hormones, and a lack of life experience in this kind of situation.

When it happened to me 30 years ago - I physically beat the crap out of the guy (shear luck and fight/flight response in high gear). But that was life experience- folks who are following you while you are alone (in the dark no less) usually are there to do you harm. I lived to learn my lesson - not to walk alone in the dark. And I don't.
 

ric27

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I believe that Trayvon threw the first punch. I have absolutely no issue with it. BUt he did so after a man followed him in his vehicle, got out and followed him some more - while Trayvon was alone in the dark.

I do not think what Trayvon did was wise, but he had a teenaged brain, with teen hormones, and a lack of life experience in this kind of situation.

When it happened to me 30 years ago - I physically beat the crap out of the guy (shear luck and fight/flight response in high gear). But that was life experience- folks who are following you while you are alone (in the dark no less) usually are there to do you harm. I lived to learn my lesson - not to walk alone in the dark. And I don't.

Being followed does not allow YOU to respond with hitting or slamming *the person that's following you* head against the ground.

Read the law, know the law before making retarded posts. Ignorance is no excuse
 

AlfredENeuman

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Being followed does not allow YOU to respond with hitting or slamming *the person that's following you* head against the ground.

Read the law, know the law before making retarded posts. Ignorance is no excuse

Please try and stay on topic.
 

year2late

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Being followed does not allow YOU to respond with hitting or slamming *the person that's following you* head against the ground.

Read the law, know the law before making retarded posts. Ignorance is no excuse

I have a question, in all of my posts have you ever seen me post that I thought 2nd degree murder was appropriate or a likely outcome?

So get unwadded.

Now, if there was a civil case (and I have said this before) I think that his behavior of following in car and on foot would have been expected to be perceived as malicious - and a civil jury might see him as more responsible for what happened.

But yeah, you keep getting wadded up and misrepresenting my posts - frankly in a trollish kinda way.
 

Excon

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The felony charges were reduced to misdemeanor charges as part of a plea deal the the "class" was anger management.
You are mistaken.
The charged were dropped to a misdemeanor of "resiting w/o violence".

It was these misdemeanor charges which were dismissed/waived in lieu of the PTD program.
 

sharon

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I'd make a bet that a large majority of that 50% don't have the caliber of lawyer of O'Mara and West prep'ing them for trial in such a high profile case.


>>>>

OMara's practice was a two man all purpose practice... Mostly divorce.
 

sharon

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The charge was not "interferring with a LE officer". The original charges were:

Charges: ZIMMERMAN, GEORGE MICHAEL Statute Level Date
1. CR-RESISTING OFFICER WITH VIOLENCE 843.01 Third Degree - Felony 07/16/2005
2. BATTERY ON LAW ENFORCEMENT OFFICER 784.07(2)(B) Third Degree - Felony 07/16/2005

http://myclerk.myorangeclerk.com/default.aspx (Search by name).

The felony charges were reduced to misdemeanor charges as part of a plea deal the the "class" was anger management.

You are correct though, it wasn't a DEA agent. The officer was a law enforcement officer assigned to a Florida State Agency having to do with Buisiness and enforcement of Florida Alcohol laws.



>>>>

Thank you for posting the facts.

I don't think George's prior bad acts will be aired in court unless he is convicted.. Then they will come in before sentencing.
 

Excon

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Thank you for posting the facts.

I don't think George's prior bad acts will be aired in court unless he is convicted.. Then they will come in before sentencing.

You are just doing this to be disruptive as you already know he was mistaken in what he said.


The charged were dropped to a misdemeanor of "resiting w/o violence".

It was these misdemeanor charges which were dismissed/waived in lieu of the PTD program.
 

AlfredENeuman

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I don't think George's prior bad acts will be aired in court unless he is convicted.. Then they will come in before sentencing.

Apparently this is really dependent upon whether or not he testifies. If he does, he stands a good chance of saying something contradicted by a prior act which would enable the prosecution to admit that act as evidence.

I'd love to get the thread back on topic, which is what kind of things he would be asked about that night that would open the door.

And I'm open to theories on how the prosecution could open the door the other way as well and find Martin's school records admitted.
 

sharon

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Apparently this is really dependent upon whether or not he testifies. If he does, he stands a good chance of saying something contradicted by a prior act which would enable the prosecution to admit that act as evidence.

I'd love to get the thread back on topic, which is what kind of things he would be asked about that night that would open the door.

And I'm open to theories on how the prosecution could open the door the other way as well and find Martin's school records admitted.

Trayvon's school records are NOT admissible since George didn't know Trayvon before he shot him. George's prior bad acts won't be admissible until sentencing IF he is convicted. This Judge Nelson goes strictly by the book. She's NOT going to screw up a stellar career on anyone's behalf.
 

AlfredENeuman

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Trayvon's school records are NOT admissible since George didn't know Trayvon before he shot him. George's prior bad acts won't be admissible until sentencing IF he is convicted. This Judge Nelson goes strictly by the book. She's NOT going to screw up a stellar career on anyone's behalf.

My point is that while you're most likely correct, I'd like to understand the "UNLESS" scenarios.

Let me clarify the question. We know that the default position is that neither of these things will come in, for both sides.

The state cannot tell the jury that Zimmerman assaulted a police officer and got a restraining order for domestic violence. They cannot tell the jury that he needed a nine month program on anger management. Those things would likely prejudice a jury against him, so the rules say it can't come in...UNLESS...

Unless what? Unless he takes the stand and says something untruthful about himself that is contradicted by the record.

Likewise, the defense cannot mention that Martin was suspended from school for writing on a locker, or being found with a pot baggie. Why? It's not relevant to that night and would only prejudice the jury against him. This would not be admissible...UNLESS...

This hurdle is a lot harder to climb. The state will introduce witnesses that knew Martin, but only to ask them about that night. They will ask Witness 8 about what she heard over the phone and that's all. The defense can only cross examine her about the scope of what she testified about, not start a fishing expedition into Martin's school records. Same with his mother, if she even testifies. They will ask her one question: whose voice do you hear? The defense can't then come back and ask "your son was a pothead, was he not?"

So what kind of things could REALISTICALLY happen that would change this? What kind of blunder could a prosecutor make that would bring this into a trial? I'm not seeing it but I'm open to hearing theories.

Zimmerman's case is much easier to see, since fully half of all defendants who take the stand end up with their prior bad acts in front of the jury. And for a guy like Zimmerman, whose bad acts consist of a) following "suspects" in what normal people would consider a reckless way, and b) actual violence, and who really likes to talk and EXPLAIN HIMSELF, I can easily see him slipping up and getting the prior assault in front of a jury.
 
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