Author Topic: Possible Reversible Error  (Read 3937 times)

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Offline MJW

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Possible Reversible Error
« on: July 06, 2013, 06:29:07 PM »
I thought it might be interesting to discuss possible reasons the DCA might reverse if Zimmerman is convicted.

My current list is:

1) Improper Richardson hearings. A Richardson hearing is a hearing required whenever a discovery violation is alleged.  The purpose is to decide if a violation occurred, and if it did, whether it was done on purpose, and how much harm it caused. There have so far been three Richardson hearings. Two resulted from the defense filing pre-trial motions complaining about violations, the third was because during the trial, Dr. Bao's notes seem to indicate he'd changed his opinion about the THC levels, but the defense hadn't been notified. I think the third hearing was conducted properly, with the state having to show that no violation occurred. But I don't believe the first two were at all done correctly. Judge Nelson made no attempt to find out what the state knew and when. The burden was entirely on the defense to prove a violation occurred. The second Richardson hearing was apparently continued until after the trial.

2) Not granting a continuance. This is closely related to the second Richardson hearing. The defense claimed the state had withheld evidence they needed to prepare for trial. This issue was partially defused by the Frye decision not allowing the expert voice ID evidence.

3) Allowing in the 911 calls. I think the calls have almost no probative value. There only value to the state's case is prejudicial: to suggest Zimmemran had racial motives for calling the police about Martin.

4) Allowing a witness to be called to impeach Zimmerman's out-of-court statement to Hannity that he was unaware of the SYG law. Even for statements made in court, under oath, Florida doesn't allow impeachment on collateral matters. An attorney who asks about collateral matters must "take" the answer of the witness.  The prosecutors claimed they were justified to impeach the statement because the defense stipulated to the Hannity tape redactions. But unless the defense insisted that particular statement come in under the doctrine of completeness, stipulating to allowing it is, at most, equivalent to not objecting to a question.
« Last Edit: July 06, 2013, 06:34:21 PM by MJW »

Offline RickyJim

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Re: Possible Reversible Error
« Reply #1 on: July 06, 2013, 06:42:39 PM »
Do you mean the prior NEN calls in 3)?  If so, they can be used to show that Zimmerman adopted a new more aggressive tack on 2/26/12 for whatever that is worth.

Offline MJW

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Re: Possible Reversible Error
« Reply #2 on: July 06, 2013, 06:46:32 PM »
Do you mean the prior NEN calls in 3)?  If so, they can be used to show that Zimmerman adopted a new more aggressive tack on 2/26/12 for whatever that is worth.

In my opinion, it's worth nothing. It's an illogical reason the state used as a fig leaf to hide their real motive. How in the world is evidence someone didn't overreact  in the past evidence that they overacted later?

Offline RickyJim

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Re: Possible Reversible Error
« Reply #3 on: July 06, 2013, 07:29:31 PM »
What are the statutes or other rules the DCA might cite in stating that the court in the Zimmerman case committed reversible error?  Is there something, in particular, about allowing irrelevant evidence in?

Offline MJW

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Re: Possible Reversible Error
« Reply #4 on: July 06, 2013, 08:46:17 PM »
What are the statutes or other rules the DCA might cite in stating that the court in the Zimmerman case committed reversible error?  Is there something, in particular, about allowing irrelevant evidence in?

It's almost all case law. For instance, the rule that a witness can't be impeached by extrinsic evidence on a collateral matter is stated in many opinions, such as Correia v. State, 654 So. 2d 952 (Fla. 4th DCA 1995).

Offline nomatter_nevermind

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Re: Possible Reversible Error
« Reply #5 on: July 07, 2013, 12:54:43 AM »
In my opinion, it's worth nothing. It's an illogical reason the state used as a fig leaf to hide their real motive. How in the world is evidence someone didn't overreact  in the past evidence that they overacted later?

That paraphrase doesn't reflect my understanding of the argument.

I think the argument is that GZ's actions on 2/26/12 were a result of mounting frustration, rather than ignorance of how to proceed prudently. It makes sense to me. You could still argue that it's more prejudicial than probative, which is a judgment call, but I don't agree that it's not probative at all.

Offline RickyJim

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Re: Possible Reversible Error
« Reply #6 on: July 07, 2013, 11:00:57 AM »
It's almost all case law. For instance, the rule that a witness can't be impeached by extrinsic evidence on a collateral matter is stated in many opinions, such as Correia v. State, 654 So. 2d 952 (Fla. 4th DCA 1995).
Apparently in that case, the DCA felt that impeaching an alibi witness about whether or not the defendant had cable TV was not close enough to the charges in the case.  The decision in Correia would take me many hours to decipher and by the way, a majority of the judges didn't approve of the majority opinion as written!  Do they really give some easy to apply rules on impeachment?  Would impeaching Rachel Jeantel on her age and reasons for not going to the funeral satisfy their criteria?

Offline MJW

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Re: Possible Reversible Error
« Reply #7 on: July 07, 2013, 11:48:58 AM »
Would impeaching Rachel Jeantel on her age and reasons for not going to the funeral satisfy their criteria?

Her age, perhaps, but as I recall, the state brought it up preemptively on direct, which opened the door to impeachment. The hospital story, I don't believe so, because it showed witness bias. At minimum, it was an attempt to make her actions in the days following the shooting consistent with her story. But because she said she lied to spare Sybrina's feeling, it shows she had a motive for misrepresenting other facts that might put Martin in a bad light. In any case, she was not impeached by extrinsic evidence.

Offline MJW

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Re: Possible Reversible Error
« Reply #8 on: July 07, 2013, 12:01:28 PM »
... by the way, a majority of the judges didn't approve of the majority opinion as written!

There were three judges, Pariente, Kroll, and Glickstein. Pariente wrote the opinion,  Kroll concurred, and Glickstein dissented. Two approved the opinion, one didn't. Where I come from, two to one is a majority. All the judges agree with the principles of when impeachment is allowed, they just disagree on how they fit the facts of that particular case.

Offline RickyJim

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Re: Possible Reversible Error
« Reply #9 on: July 07, 2013, 01:51:54 PM »
MJW, I asked in another thread about case law concerning impeaching the statements of a defendant who is not a witness.  If you come across that, please post.  I think that is key to seeing if the prosecution has a chance.  Somehow they have to get the jury to find guilt even though they can't come up with a plausible, let alone certain, guilty scenario.   

Offline cboldt

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Re: Possible Reversible Error
« Reply #10 on: July 07, 2013, 02:31:31 PM »
Somehow they have to get the jury to find guilt even though they can't come up with a plausible, let alone certain, guilty scenario.

Is that what you meant to say?  Or are you just remarking on the state of evidence now that the defense has rested?  The inconsistencies between various Zimmerman statements are in evidence, I'm not sure what distinction you find if the word "impeached" can or can't be (technically) attached to the inconsistencies.  The state can point to specific Zimmerman inconsistencies in its closing and assign whatever "circumstantial evidence" value to each inconsistency that the court allows.

But, if you mean that the state has to get the jury to find guilt even if the state can't come up with a plausible scenario, I'd suggest threatening the jurors with violence or bankruptcy.  Because is the jurors follow the instructions, and the state hasn't come up with a plausible scenario (beyond a reasonable doubt), the jury is obliged to render a not guilty verdict.

Offline RickyJim

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Re: Possible Reversible Error
« Reply #11 on: July 07, 2013, 02:56:36 PM »
I was attempting to imagine the argument the prosecution will use to claim the jury can deduce Zimmerman's guilt from the statements they claim are false or inconsistent with each other.  I keep seeing the hand waving argument on many websites that lies imply it wasn't self defense.  I just wonder if the whole prosecution closing is to spend a couple of days going over Zimmerman's statements and pointing out what seems wrong with them, they can legally argue for a guilty verdict without proposing a guilty scenario. 

I also wonder if the defense's best strategy is to present the evidence for what happened after the meeting at the T, not using Zimmerman's statements, arguing that an innocent scenario is obvious from it and ignore the list of lies the prosecution will give.  If they don't ignore them, should they argue that all have innocent explanations or in some cases Zimmerman was prevaricating for other reasons than his guilt?

Offline MJW

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Re: Possible Reversible Error
« Reply #12 on: July 07, 2013, 10:00:20 PM »
MJW, I asked in another thread about case law concerning impeaching the statements of a defendant who is not a witness.  If you come across that, please post.  I think that is key to seeing if the prosecution has a chance.  Somehow they have to get the jury to find guilt even though they can't come up with a plausible, let alone certain, guilty scenario.

The basic rule is 90.806:

Quote
90.806 Attacking and supporting credibility of declarant.—
(1) When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time inconsistent with the declarant’s hearsay statement is admissible, regardless of whether or not the declarant has been afforded an opportunity to deny or explain it.
(2) If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

In Moore v. State, 943 So. 2d 296 (Fla. 1st Dist. 2006), the court said, "When a defendant successfully introduces his hearsay statements into evidence, the credibility of the declarant may be attacked just as if the declarant had testified as a witness." In almost every case where section 90.806 has been applied to a defendant's recorded statement, the impeachment has consisted of prior convictions. I'm not aware of any case that considers anything related to impeachment on collateral issues of statements made in a non-police interview that was admitted into evidence by stipulation. My opinion is that for a recorded interview entered by the state in its direct case, the defendant should be considered as a state witness, except perhaps for exculpatory statements specifically demanded by the defense under the doctrine of completeness.


Offline TalkLeft

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Re: Possible Reversible Error
« Reply #13 on: July 11, 2013, 04:18:14 AM »
MJW, I just wanted to thank you for all the case law you have contributed to the site.  As I look through the forum searching for things, I keep seeing them and they are really helpful.

Offline MJW

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Re: Possible Reversible Error
« Reply #14 on: July 11, 2013, 12:24:44 PM »
MJW, I just wanted to thank you for all the case law you have contributed to the site.  As I look through the forum searching for things, I keep seeing them and they are really helpful.

Thank you very much. For some odd reason, I really enjoy researching case law.

 

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