The Prosecution's Burden of Proof

[DebFrmHell]

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

So show me the part that says Gilbreath knew who started the confrontation that led to the fight, who was doing the yelling, etc.  I must have missed that.

[nomatter_nevermind]

So show me the part that says Gilbreath knew who started the confrontation that led to the fight, who was doing the yelling, etc. 

Show me where I said he did.

[MJW]

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. 

That doesn't meet the definition of "provoke" under Florida self-defense law. Provocation requires force or the threat of force. It's immaterial that TM might have had a valid claim of self-defense for punching GZ if he reasonably but mistakenly believed GZ was reaching for a weapon instead of a cell phone.

[cboldt]

That doesn't meet the definition of "provoke" under Florida self-defense law. Provocation requires force or the threat of force. It's immaterial that TM might have had a valid claim of self-defense for punching GZ if he reasonably but mistakenly believed GZ was reaching for a weapon instead of a cell phone.

When I last visited this point, my conclusion was that provocation for 776.41 purposes had to be intentional.  My rationale was that the law would not strip self defense immunity from a person who did not intend to threaten or use force; a person who does not intend to threaten or use force has done no wrong.

TM would in fact have a right to use force, independent of Zimmerman's intent, if he reasonably perceived a threat to use force.  But all justified use of force includes a limit on how much force may be used.  Martin went beyond that limit, even in the best case presentation of Martin's actions.

Anyway, assuming that Martin is justified in using force because he reasonably perceives a threat of force does not mean that Zimmerman provoked Martin.  Provocation is an intentional act.  It cannot be accidental or unintentional.

[RickyJim]

That doesn't meet the definition of "provoke" under Florida self-defense law. Provocation requires force or the threat of force. It's immaterial that TM might have had a valid claim of self-defense for punching GZ if he reasonably but mistakenly believed GZ was reaching for a weapon instead of a cell phone.

The word provoke(s) occurs only once in 776 in the phrase " Initially provokes the use of force against himself or herself".  There is no definition given.   I think this has been gone through in the long forgotten past here but why do you think the prosecution can't argue the way I indicated to try to prove 3.a)?

[RickyJim]

Anyway, assuming that Martin is justified in using force because he reasonably perceives a threat of force does not mean that Zimmerman provoked Martin.  Provocation is an intentional act.  It cannot be accidental or unintentional.

I gather you, like MJW, doesn't think the prosecution can use what I call 3.a) and it is not left up to the jury to decide if Zimmerman provoked the fight or not.  Can you reference previous posts or case law?  TIA.

[cboldt]

I gather you, like MJW, doesn't think the prosecution can use what I call 3.a) and it is not left up to the jury to decide if Zimmerman provoked the fight or not.  Can you reference previous posts or case law?  TIA.

MJW's point was that provocation necessarily involves a threat of force.  I think your structure includes that.  There is case law that provocation requires a threat of force, and that racial insults and mooning are not provocation for 776.041 purposes.  Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001).  Discussed at "Expert" Reports in George Zimmerman Case Disclosed and elsewhere.  I think a google search using site:talkleft.com zimmerman gibbs would do the heavy lifting.

My point was that provocation for 776.041 purposes has to be an intentional threat or use of force.  I know of no case law on that point.  You can see my evolution to the point of view that provocation under 776.041 requires intent is in a couple recent threads on TalkLeft.  One in forum, on on the main board.  I don't recall which threads.

I'm not up with your 1,2,3 structure.  Meaning that I haven't studied it with an eye toward accepting it or criticizing is as comporting with the law.  That's your baby.

[nomatter_nevermind]

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?

No. But if someone on the internet buys it, I suppose there is a chance a juror will.

[RickyJim]

My point was that provocation for 776.041 purposes has to be an intentional threat or use of force.  I know of no case law on that point. 

Say during opening arguments we have the following

Mr. Guy (or dlR) - And we will show you, members of the jury, that George Zimmerman provoked a fight with Trayvon Martin by staring at him, following him in his car, getting out of his car to look for him, never identifying himself as neighborhood watch and reaching into his pocket for .....

Mr. O'Mara - Objection.  that is not provocation under Florida law

Judge Nelson - 

Overruled or sustained?

[cboldt]

Say during opening arguments we have the following

Mr. Guy (or dlR) - And we will show you, members of the jury, that George Zimmerman provoked a fight with Trayvon Martin by staring at him, following him in his car, getting out of his car to look for him, never identifying himself as neighborhood watch and reaching into his pocket for .....

Mr. O'Mara - Objection.  that is not provocation under Florida law

Judge Nelson - 

Overruled or sustained?

It wouldn't go down like that in opening or closing argument.  It's bad form (but no unheard of) for an objection to be stated during opening or closing argument.  Opening and closing arguments are not evidence, and they are not the law.  The jury is charged with deliberation with a set of written instructions.  Those instructions are damned important.  If you read the case cite I linked, you will see that it revolved around a jury instruction that  failed to properly define provocation, for want of pointing out that provocation MUST involve a threat or use of force.

I don't know what sort of success O'Mara would have if he sought to add the word "intentional" before "threat or use of force."  There might be case law on the point, or it might be one of those things that is so obvious that whoever wrote the law just assumed it and figured it didn't need to be stated - meaning it's a big enough hole that a prosecutor can "charge" somebody with provocation even though they had no intention of threatening or using force.

[cboldt]

Mr. O'Mara - Objection.  that is not provocation under Florida law

Judge Nelson - 

Overruled or sustained?

Continuing on my previous.  Bernardo can claim some set of acts is provocation.  O'Mara lets him go.  Then it's O'Mara's turn to address the jury.  He can say to the jury, "the prosecution has told you that XYZ is provocation under the law.  I urge you to reserve a decision on what provocation is, under the law, until you are deliberating and have the written instructions that define provocation."  That way he isn't saying Bernardo is wrong, and he isn't stating an alternative definition.

Or, if Bernardo is free to define the law, well, so is O'Mara.  Although I think Nelson would shut O'Mara down and claim that defining the law is the court's job, not the lawyers job.

[RickyJim]

In the case you cited, the only provocation was to say "Good Morning".  I think it could (and probably will) be argued that what Zimmerman did was much worse and included a threat of violence against Martin when Zimmerman reached into his pocket instead of explaining his business.  By the way, as I pointed out that 3.a) doesn't give the prosecution much if they can't also do 3.b).

[nomatter_nevermind]

Thanks for spelling all that out, cboldt. Great job.

[cboldt]

In the case you cited, the only provocation was to say "Good Morning".  I think it could (and probably will) be argued that what Zimmerman did was much worse and included a threat of violence against Martin when Zimmerman reached into his pocket instead of explaining his business.  By the way, as I pointed out that 3.a) doesn't give the prosecution much if they can't also do 3.b).

The provocation at issue was the racial threat [edit: strike "threat", insert "insult"] and mooning. You aren't understanding the case.

Plus, I already said that I thought your scenario or framework, or whatever you call the contraption, captured the element of provocation necessarily involves force, not mere words.

The only information I was trying to give you to work with, as you see fit, is that I think provocation, or "threat" has to be intentional.  I mean, have you ever unintentionally threatened somebody with force?  Is there such a thing as an unintentional threat?  You can unintentionally cause fear or apprehension in somebody else, but are YOU committing a THREAT under that circumstance?  I think the word "threat" necessarily looks into the intention of the person committing the act.  I think "unintentional threat" is a nonsense.  Like a dark shade of the whitest white.

But, lawyers being what they are, I'm sure there will be some who argue that a threat is in the eye of the beholder, and has nothing to do with the state of mind of the person issuing the threat.  I'm not in that camp.

[cboldt]

I think the word "threat" necessarily looks into the intention of the person committing the act.  I think "unintentional threat" is a nonsense.  Like a dark shade of the whitest white.

But, lawyers being what they are, I'm sure there will be some who argue that a threat is in the eye of the beholder, and has nothing to do with the state of mind of the person issuing the threat.  I'm not in that camp.

The online dictionaries support my point of view, for the word "threat."

 - a declaration of an intention or determination to inflict punishment, injury, etc
 - an expression of intention to inflict evil, injury, or damage
 - Communicated intent to inflict harm or damage to a person or property

So, what about "provoke"?

 - To bring about deliberately; induce: provoke a fight
 - to stir up purposely (provoke a fight)

Can a person unintentionally provoke a fight?  Does that even make sense in the English language?

One bright day, in the middle of the night
Two dead men got up to fight
Back to back they faced each other
Drew their swords, and shot each other
The deaf policeman head the noise
And came to save the two dead boys

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