The Prosecution's Burden of Proof

[RickyJim]

Here is an attempt to distill down from the redundancies and inapplicable portions of FL 776, exactly what the prosecution must do to get a conviction for at least manslaughter, in other words, defeat Zimmerman's self defense claim.  Unless they have a plausible case here, I don't think it is worth getting into what in addition must be proven to get a Murder2 conviction.

At least one of the following must be proven beyond a reasonable doubt:

• Zimmerman was committing a forcible felony at the start of the physical conflict with Martin.  For example, trying to forcibly detain him.
• Zimmerman did not have a reasonable fear of great bodily harm at the time he shot Martin.
• Both a) and b) below must be proven BRD.
      a)Zimmerman was the initial provoker of the conflict with Martin.
      b)Zimmerman could have safely withdrawn from the fight but chose not to do so.
  

My impression is that the defense can refute any evidence the prosecution has for 1, 2. or 3 without calling Zimmerman to the stand, unless the prosecution has dynamite GPS evidence to establish 1.  Under Florida law, can O'Mara read such a list as above to the jury in his opening statement? 

[DebFrmHell]

I am still trying to figure out how BDLR is going to give an opening statement without relying on emotion and Martin's character.  Gilbreath stated under oath that they had no evidence that contradicts the narrative given by Zimmerman.

[RickyJim]

Maybe Bernie won't give the opening statement.  We have been seeing more and more of John Guy at the hearings.  Corey may decide that since he is easier on the ears and eyes than BDLR, he should do it.

As long as O'Mara keeps harping on the prosecution's need to prove either 1, 2, or 3 BRD, it doesn't make much difference what the prosecution says in opening, providing as most of us think will happen, they will swing and miss all three times.

I should mention they have a fair chance with 3.a) using Zimmerman getting out of the car, etc.  But 3.b)?  Yeah, we want that too.   

[nomatter_nevermind]

Gilbreath stated under oath that they had no evidence that contradicts the narrative given by Zimmerman.

He said no such thing. The question was about specific points, not the entire narrative.

[annoyedbeyond]

He said no such thing. The question was about specific points, not the entire narrative.

http://www.talkleft.com/story/2012/4/21/22713/4445/crimenews/Reaction-to-the-George-Zimmerman-Bail-Hearing

You're splitting frog hairs.

[nomatter_nevermind]

You're splitting frog hairs.

Nonsense. I was responding to an assertion so exaggerated as to be blatantly false.

[nomatter_nevermind]

I am still trying to figure out how BDLR is going to give an opening statement without relying on emotion and Martin's character. 

Why do you think he won't rely on emotion?

[RickyJim]

As explained in 2. here, the prosecution can't even argue for 1. in the OP unless they file a separate charge for a particular forcible felony.  Can they do that now, before the trial starts or during the trial?

[nomatter_nevermind]

At least one of the following must be proven beyond a reasonable doubt:

• Zimmerman was committing a forcible felony at the start of the physical conflict with Martin.  For example, trying to forcibly detain him.

[snip]

unless the prosecution has dynamite GPS evidence to establish 1. 

I don't see how that can be established by GPS evidence alone.

[nomatter_nevermind]

As explained in 2. here, the prosecution can't even argue for 1. in the OP unless they file a separate charge for a particular forcible felony.  Can they do that now, before the trial starts or during the trial?

In Florida, a prosecutor can charge anyone they want, any time they want.

[RickyJim]

I don't see how that can be established by GPS evidence alone.

Since when does not having sufficient evidence stop this prosecution?    Maybe GPS +Owen + DeeDee would be enough for them to try for 1?  As I mentioned above, they would have to file a separate forcible detention charge also.  The fact that they haven't done that yet might be a hint they don't have inculpatory GPS data. 

[nomatter_nevermind]

I should mention they have a fair chance with 3.a) using Zimmerman getting out of the car, etc.

I don't understand. Whats the 'etc.'?

[RickyJim]

I think Serino's Capias made the case for 3.a).  Getting Martin to think he was following him in his Ridgeline, getting out of the car, not identifying himself to Martin when they met and reaching provocatively into his pocket for something that a reasonable person might be consider a weapon, might convince some jurors that Zimmerman was the provoker. 

Somebody arguing with me on the HuffPo indicated what the prosecution case for 3.b) might be.  You have to construe Osterman's and Zimmerman's statements about having some control of Martin's left arm or wrist before firing as proving he could have forced Martin to back off. 

[nomatter_nevermind]

You have to construe Osterman's and Zimmerman's statements about having some control of Martin's left arm or wrist before firing as proving he could have forced Martin to back off.

Zimmerman was only asked once which hand Martin used to grab for the gun, in the CVSA (43:45-44:08). He said it was the one that had been on his mouth, but he couldn't remember if it was the right or the left. That part of the CVSA is transcribed here.

Osterman told FDLE another story, according to his interview summary (78/284). Zimmerman grabbed one of Martin's hand in both of his, and Martin grabbed for the gun with the other hand.

The FDLE summary doesn't have anything about left hand or right hand. I don't know what Osterman may have said elsewhere.

[RickyJim]

Whatever hand or hands it was, can you see a good argument that Zimmerman had not exhausted all reasonable means to escape or force Martin to back off before firing the gun?