Wednesday, May 29, 2013
The Character of the Matter George Zimmerman, Trayvon Martin & the Intricacies of Character Evidence
Section 90.404 of the Florida Statutes generally precludes parties from presenting propensity character evidence, such as evidence that a defendant on trial for robbery had committed a prior robbery ("once a robber, always a robber"). That said, Section 90.404(1)(b)1. of the Florida Statutes contains a so-called "mercy rule," pursuant to which a criminal defendant can open Pandora's box and present evidence of the alleged victim's bad character for a pertinent character trait. The consequence of presenting such character evidence, however, is that the prosecution can respond by presenting (1) evidence of the alleged victim's good character for that same trait; and/or (2) evidence of the defendant's bad character for that same trait.
In the build up to his murder trial, George Zimmerman has attempted to get the trial judge to deem admissible evidence of Trayvon Martin's violent past. How should the court rule?In support of his claim of self-defense, George Zimmerman asked the judge to allow him to admit evidence concerning Trayvon Martin's propensity for violence:
"There is certainly enough evidence…that’s going to suggest Trayvon Martin involved himself ongoingly with fighting with other people," [defense lawyer Mark] O’Mara said.
He said the defense had obtained video of three fights – two in which Martin acted as a referee and a third in which two friends "were beating up a homeless guy." The defense also wanted the right to present text messages, like one from November 2011 in which Martin seemed to refer to an organized fight: "He got mo hits cause in da 1st round. He had me on da ground nd I couldn’t do ntn."
Prosecutors argued that since Zimmerman and Martin didn’t know each other before the shooting, whether the teen had been involved in fights had no bearing on how the defendant reacted that night.
After hearing arguments from both sides,
The judge ruled that the evidence about past fights could not be mentioned in opening statements but said it could be admitted during trial if the defense can authenticate it and overcome rules against hearsay evidence.
I agree with the prosecution. Why? Well, it is true that Section 90.404(1)(b)1. contains a "mercy rule" that should allow George Zimmerman to present some evidence of Trayvon Martin's violent tendencies. But what form can such evidence take?
Section 90.405 of the Florida Statutes states:
Methods of proving character.
(1) REPUTATION.—When evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation.
(2) SPECIFIC INSTANCES OF CONDUCT.—When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.
Obviously, evidence concerning the prior fights and text messages is evidence concerning specific instances of conduct rather than reputation evidence ("I've known Trayvon Martin for five years, and in my opinion he's a violent person."). Therefore, there are only two ways in which this specific instance evidence should be admissible.
The first, as noted in Section 90.405(2), is if Trayvon Martin's character for violence is an essential element of George Zimmerman's claim of self-defense. As I have noted on several occasions (see, e.g., here), it is not. Trayvon Martin could be a generally violent person who was an innocent victim when he was shot by George Zimmerman or a generally peaceful person who was the initial aggressor in the encounter that led to his death. Character is only an essential element when it is coterminous with the outcome at trial. Therefore, Trayvon Martin's character is not an essential element of George Zimmerman's claim of self-defense, and Section 90.405(2) does not justify the admission of the disputed evidence.
The second way in which specific instance evidence can be admissible is under the "communicated character" theory of character evidence. This is the theory mentioned by the prosecution in the Zimmerman case. Assume that George Zimmerman was aware that Trayvon Martin had a violent past. If this were the case, Zimmerman could present evidence of this violent past, not to prove that Martin was a generally violent person, but to prove why he was in reasonable apprehension of the teenager. But, as the prosecution noted, there is no indication that Zimmerman was aware of anything about Trayvon Martin's past. As such, he could only be using evidence of Martin's prior violent acts and texts to prove his violent propensities, which, again, is impermissible under Section 90.405 of the Florida Statutes.
(Hat tip to my colleague Derek Black for the link)