Author Topic: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY  (Read 11914 times)

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Offline nomatter_nevermind

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #75 on: May 25, 2013, 08:15:27 PM »
Cboldt has a good post on admissibility at the TalkLeft blog.

I posted this in response:

In the hearing that addressed discovery of the school records (10/19/12), Judge Nelson addressed whether evidence of Martin's reputation should be excluded on the ground that Zimmerman was unaware of it. She cited Munoz v. State, 45 So.3d 954, (3d DCA 2010), and Dwyer v. State, 743 So.2d 46, (5th DCA 1999) (16:47-18:44).

Nelson quoting Munoz.
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The purpose of introducing the reputation evidence in a self-defense case is to show the victim was the initial aggressor. Reputation evidence is offered to show that the victim acted in conformity with a known character trait. Because reputation evidence relates to the conduct of the victim, the defendant is not required to have had prior knowledge of the victim's reputation in the community.

Nelson quoting Dwyer, as quoted in Munoz.
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[A] defendant who alleges self-defense can show, through the testimony of another witness, that the alleged victim had a propensity for violence, thereby inferring that the alleged victim was the aggressor. A defendant's prior knowledge of the victim's reputation for violence is irrelevant, because the evidence is offered to show the conduct of the victim, rather than the defendant's state of mind.

Nelson's conclusion.
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So, based upon those two cases, I think that you're entitled to those records. I noticed in the state, in their response, it said they didn't have an objection per se. So I think they have an understanding of that, the law, also.

Offline RickyJim

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #76 on: May 25, 2013, 08:42:28 PM »
Yeah, it's unfortunate but I think they do have to delve into this stuff extensively since the other side's strategy has basically revolved around attacking Zimmerman's character and creating a visceral response.  When I talk to friends and family members about it and carefully piece together all of the substantive evidence for them (the eye witness reports, emt records, ballistics, fbi analysis etc.) most of them still can't get past the first impression they got of the case when they saw images of a smiling child who "still kissed his father in public" who had been gunned down by a threatening looking guy in an orange jumpsuit.  They just can't mentally picture Trayvon attacking him; I might as well be telling them that the moon landing was faked.
I do almost all my discussing of this case online.  The usual impasse I get in is with people who insist that Zimmerman's lying implies his guilt.  I accept that he lied but answer that what a defendant in a criminal case says has almost zero weight compared with the other evidence.  Of course that also gets me into trouble with Zimmerman admirers.   :(

Offline TalkLeft

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #77 on: May 26, 2013, 01:12:00 AM »
Here's another post I wrote on this back in September:

In a nutshell,  Florida permits a defendant in a criminal case to introduce evidence of a victim's reputation for violence, providing there is a showing of self defense on the part of the defendant. One purpose is to show that the victim was the first aggressor. When a defendant offers  the evidence for this purpose, it is unnecessary for him to show that he had prior knowledge of the victim's propensities.  This is because  because the evidence is offered to show the conduct of the victim, rather than the defendant's state of mind.

There are still other factors that the court would weigh in deciding if its admissible: Things like when was it, how similar was it to what is claimed in this case, and does the prejudicial nature of the evidence  outweigh its probative value.

Until specific evidence is disclosed by one side or the other, it is not appropriate to speculate here or bring up contents of social media accounts and rumors. Those are just character attacks.

Suffice it to say the requests the defense is making are not witch hunts or fishing expeditions. If the state , for example, wants to introduce evidence of Trayvon's good character, the defense has the right to challenge it with evidence it discovers. If it waits until trial, it will be too late. The defense has to anticipate such action by the state and be prepared to meet it.

The Florida Evidence Manual:  Section 90.404(1)(b) allows evidence of a pertinent trait of character of the victim of a crime to be offered by an accused; or by the prosecution to rebut the trait; or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.

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Trayvon isn't the only person whose character will be subjected to scrutiny by the defense. I would expect Dee Dee to be as well. The state has said she's a critical witness. The defense is entitled to impeach her credibility, even if its just to show her bias.

Murray v. State, 838 So. 2d 1073, 2002 Fla. LEXIS 1942 (Fla. 2002).

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Denying a defendant the opportunity to present evidence that a witness is biased not only violates Fla. Stat. 90.608(2), it also implicates a defendant's constitutional right to cross-examination which is guaranteed by the Sixth Amendment to the United States Constitution and Fla. Const. art. I, 16; inherent within this right is a defendant's right to expose a witness's motivation in testifying because it is the principal means by which the believability of a witness and the truth of his testimony are tested.

The state can object to the issuance of the defense subpoenas but I don't think it will prevail. If the evidence is reasonably calculated to lead to the discovery of admissible evidence and is relevant to the issues in the case, they probably will be granted.

Offline Evil Chinchilla

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #78 on: May 26, 2013, 12:33:16 PM »
Sorry if this is a dumb question, but IANAL:

There seems to be an implication from defense that there's more potential evidence relating to Trayvon's character/patterns of behavior that they haven't prepared for discovery, and that some of the BIN files are still untranslated into a readble form.

When is the cut-off for submitting evidence to qualify it for potential use in the trial? If they get a last-minute "smoking gun" in a recovered text (or tweet, etc.) that establishes that Trayvon was attacking and George was acting in self-defense, can it be excluded from use by not being discovered in time? 

Offline MJW

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #79 on: May 26, 2013, 06:51:46 PM »
There seems to be an implication from defense that there's more potential evidence relating to Trayvon's character/patterns of behavior that they haven't prepared for discovery, and that some of the BIN files are still untranslated into a readble form.

When is the cut-off for submitting evidence to qualify it for potential use in the trial? If they get a last-minute "smoking gun" in a recovered text (or tweet, etc.) that establishes that Trayvon was attacking and George was acting in self-defense, can it be excluded from use by not being discovered in time?

If the defense got significant evidence any time before or during the trial, they would very likely be able to use it. Even discovery violations are not usually sufficient reason for excluding evidence unless there's no other reasonable alternative. In McDuffie v. State, 970 So. 2d 312 (Fla. 2007) the state supreme court said:

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This Court will review the record to determine if this full inquiry was made and if the trial court's actions pursuant to the inquiry were proper. The same rules apply and the same procedure must be followed regardless of which party commits the discovery violation, but additional constitutional considerations are involved when a defense witness is excluded. This is because "[t]here are few rights more fundamental than the right of an accused to present witnesses in his or her own defense."

* * *

We are mindful that Florida Rule of Criminal Procedure 3.220(n)(1) authorizes a trial court to exclude evidence as a sanction for a violation of the discovery rules, but this sanction should only be imposed when there is no other adequate remedy. Furthermore, where as here the violation has not been found to be willful or blatant, this sanction is generally too severe "when the only prejudice to the State is its inability to obtain evidence for impeachment of the witness."

The second quotation is from Grace v. State, 832 So. 2d 224 (Fla. 2d DCA 2002). Both cases involved last-minute evidence that was excluded by the trial court. The appellate courts ruled the excluding the evidence was error that required reversal.

Offline Evil Chinchilla

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #80 on: May 26, 2013, 07:45:41 PM »
Thanks for the detailed reply, and it's reassuring to hear that there's some established leeway on admissibility, given how evidence has been coming forth from the state in such a slow drip.

Offline cboldt

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #81 on: May 26, 2013, 08:24:15 PM »
If the defense got significant evidence any time before or during the trial, they would very likely be able to use it. Even discovery violations are not usually sufficient reason for excluding evidence unless there's no other reasonable alternative. In McDuffie v. State, 970 So. 2d 312 (Fla. 2007) the state supreme court said:

The second quotation is from Grace v. State, 832 So. 2d 224 (Fla. 2d DCA 2002). Both cases involved last-minute evidence that was excluded by the trial court. The appellate courts ruled the excluding the evidence was error that required reversal.

I'd add that there is also post-conviction relief, aside from and after losing the direct appeal.  In other words, if new evidence becomes available, that may be grounds to revisit the case.  Of course, the wrongly convicted person is sitting in jail while all this is going on, but the general point is that short of dying, there is no such thing as "too late" to introduce new evidence that proves innocence.

Offline nomatter_nevermind

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #82 on: June 05, 2013, 08:54:19 PM »
DiwataMan points out something I overlooked. The defense 3rd suppemental mentions two videos from Martin's phone (item Y on p. 3). It also mentions one video from Martin's YouTube (item Z on p. 3). 

The page 10 photo in this set is probably a still from one of those videos, which probably is also the video O'Mara described as showing Martin 'refereeing' a fight. This is the same video already notorious under that description. I assume we can link it now, as O'Mara has indicated he may want to put it in evidence. The still is from 1:02.

Martin is said to be identifiable by his arm tattoo. I haven't yet taken the time to verify this myself.

Offline TalkLeft

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Re: DEFENDANT'S 3RD SUPPLEMENTAL DISCOVERY
« Reply #83 on: June 09, 2013, 12:16:40 AM »
This is the same video already notorious under that description. I assume we can link it now, as O'Mara has indicated he may want to put it in evidence.

No you cannot. The judge has already ruled  for now that fighting cannot come in. If during the trial, O'Mara moves its admission, it will be discussed, whether it's admitted or denied.  Also, the video you are referring to is not authenticated. O'Mara's inclusion of a screenshot from it does not authenticate the video or the persons in it.

 

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