George Zimmerman’s defense team recently filed a Discovery Exhibit indicating they may seek to introduce a litany of unfavorable evidence about Trayvon Martin.
Among the items the defense listed was evidence of marijuana use, text messages showing an participation in street fighting, and school disciplinary records.
The Martin Family Attorneys Reacts
As can be expected, the reaction from Trayvon Martin’s family was swift and indignant.
Natalie Jackson accused the defense (probably accurately) of attempting to taint the jury pool and claimed the proffered evidence was “irrelevant to [George Zimmerman’s] guilt or innocence.”
Ben Crump proclaimed,
The only “evidence that will be admitted at trial is the legally documented history of George Zimmerman’s propensity for violence, such as his arrest for battery on a law enforcement officer, his injunction to prevent domestic violence taken out by his ex-girlfriend, and evidence of his training as a bouncer for Data Whore Productions, Inc.”
Put in simpler terms, the Martin family attorneys were accusing the defense of engaging in Character Assassination.
And while “character assassination may be tolerated in some places, it has no place in the administration of justice.” State v. Beggs, 51 So. 2d 423 (Fla. 1951). Or does it?
Before we discuss the specific issues raised by both the Zimmerman defense and the Martin family attorney, we must discuss the admissibility of character evidence, since this is at the heart of the dispute.
Generally, character evidence is inadmissible. F.S. 90.404(1). But, for every rule there is an exception (or two). And in this case, the exceptions will swallow the rule.
Evidence of Violent Propensities
An exception to this rule is “where the victim’s character is an essential element in the case or where the defendant asserts that he acted in self-defense.” Munoz v. State, 45 So. 3d 954, 956 (Fla. 3d DCA 2010).
Where self defense is raised, the victim’s propensity or reputation for violence becomes an essential element of the case. As such, the victim’s character, proven through reputation testimony, sheds light on the victim’s conduct at the time of the altercation. Banks v. State, 351 So. 2d 1071 (Fla. 4th DCA 1977).
However, such evidence is limited to either:
- The victim’s conduct at the time of the altercation; or
- The reasonableness of the defendant’s fear at the time of the incident.
The first prong is proven through the introduction of Reputation Evidence of the victim. The second prong is proven through the introduction of the defendants knowledge of prior acts of violence by the victim.
To prove a reputation for violence (and I use violence broadly), Florida permits a defendant to introduce evidence “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.” Dwyer v. State, 743 So. 2d 46, 48 (Fla 5th DCA 1999)
Reputation evidence of this type is generally proven through witnesses who knew the individual (in this case Trayvon Martin’s friends or family). Such evidence is notoriously difficult to prove or even introduce.
This is because testimony as to a person’s reputation must be based on sufficiently broad knowledge of the individual and not on fleeting contact or isolated acts. Wisinski v. State, 508 So. 2d 504 (Fla. 4th DCA 1987) (The reputation testimony must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of two or three persons.)
Prior Acts of Violence
Conversely, evidence of prior acts of violence by the victim is admissible if the defendant has prior knowledge of them to demonstrate the reasonableness of the defendant’s fear at the time of the incident.
However, because the purpose of introducing this evidence is to show the defendant’s state of mind at the time he defended himself, it must be shown the defendant had prior knowledge of these acts. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts prior to killing victim.)
Evidence of Peaceful Propensities
In self defense cases, evidence of a peaceful or non-violence reputation of the victim and the defendant is admissible as follows.
Victims’s Peaceful or Non-Violent Reputation
Once the defense places a victim’s character or reputation into evidence, either by cross-examination or through reputation witnesses, the defense then opens the door for the State to introduce rebuttal evidence of the victim’s reputation for peacefulness or non-violence.
Defendant’s Peaceful or Non-Violent Reputation
Likewise, a defendant may testify that he is a peaceful or non-violent person, or use witnesses to testify to his reputation as a peaceful or non-violent person.
However, once the defendant places his character or reputation into evidence, the State may then introduce rebuttal evidence that impeaches the assertion of a reputation for peacefulness or non-violence.
Trayvon Martin’s Prior Bad Acts
Evidence of drug use is controlled by the Florida Supreme Court decision of Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989), which states that evidence of drug use is prohibited unless:
- It can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness’s testimony;
- It can be shown that the witness is using drugs at or about the ti me of the testimony itself; or
- It is expressly shown by other relevant evidence (i.e. toxicologists or psychologists) that prior drug use affects the witness’s ability to observe, remember, and recount.
You may have noticed that I kept highlighting the word witness. The reason for this is that evidence of drug use is only admissible against a witness if it impeaches the witness’s “ability to perceive, record, recollect, narrate, or testify truthfully.”
It is not admissible solely to cast a person in a bad light (i.e. character assassination). Ruland v. State, 614 So. 2d 537, 539 (Fla. 3d DCA 1993) (Evidence of drug use offered to establish that the victim was a drug dealer or user is an impermissible attack on the character of the victim.)
And if you have been following along, you will have also realized that Trayvon Martin will not be a (testifying) witness in this case. As such, the State will argue that evidence of his drug use is therefore inadmissible.
However, evidence of Trayvon Martin’s drug use on the night of the incident will be admissible for two reasons separate from showing his bad character.
First, we know Witness 8 will likely testify about Trayvon Martin’s statements to her and we know an audio experts will likely testify that Trayvon Martin can be heard on the 911 calls. Such statements are hearsay, but are admissible under exceptions to the hearsay rule. (State of mind, excited utterances, etc.)
Nevertheless, when a hearsay statement has been admitted into evidence, “the credibility of the original declarant of the statement 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.” Huggins v. State, 889 So. 2d 743, 755 (Fla. 2004)
What this means is that whenever a state witness testifies to something Trayvon Martin said, the testifying witness can be questioned as to whether they were aware Trayvon Martin had used drugs that night.
If they say yes, then the defense has been able to indirectly impeach Trayvon Martin. If they say no, then the defense can introduce the toxicology evidence in their case in chief to impeach Trayvon Martin.
Corroboration of Defendant’s Belief
Second, evidence of drug use on the day of the incident is admissible to corroborate George Zimmerman’s opinion that Trayvon Martin was acting like he was on drugs prior to the altercation. Arias v. State, 20 So. 3d 980, 984 (Fla. 3d DCA 2009) (Toxicology findings relevant and admissible not as character evidence, but to confirm defendant’s perception that victim was in fact intoxicated.)
Prior Incidents of Fighting
To be honest, I grappled (pun intended) with how the defense could legally introduce evidence that Trayvon Martin had previously engaged in semi-organized street fighting.
Since George Zimmerman was unaware of this behavior, it would be inadmissible to show his state of mind. Taylor v. State, 513 So. 2d 1371 (Fla. 2nd DCA 1987) (Evidence of victims’s prior acts inadmissible to show state of mind, because defendant was unaware of the acts he killed victim.)
However, part of Florida’s standard jury instruction 3.6(f), Justifiable Use of Deadly Force, instructs the jury that when they “consider the issue of self-defense, they may take into account the relative physical abilities and capacities of the defendant and the victim.”
It is because of this instruction, that (as Ben Crump pointed out) George Zimmerman’s “training as a bouncer for Data Whore Productions, Inc.” should be relevant. Likewise, it is for this same reason that Trayvon Martin’s participation in semi-organized street fighting is relevant. Otherwise, the jury would be unable to take into account the “relative physical abilities and capacities of the defendant and the victim.”
In the same regard, the State or its witnesses will likely posit that Trayvon Martin was a small, unskilled, teenager who lacked the physical ability or capacity to overpower George Zimmerman. Thus evidence of Trayvon Martin’s participation in street fighting either rebuts this assertion or impeaches any assertion by friends or family members that he was not skilled or strong enough to have overcome George Zimmerman.
This reasoning is consistent with the holding in Arias v. State, which held that the toxicology evidence was admissible because it was relevant evidence, notwithstanding that it could also be classified as inadmissible character evidence.
Moreover, the Florida Supreme Court has indicated in dicta that specialized training (such as Martial Arts) is relevant evidence notwithstanding its also evidence of bad character traits. Trease v. State, 768 So. 2d 1050 (Fla. 2000) (FN5. Evidence of proficiency in the martial arts and how to use a knife was relevant evidence against defendant in murder case.)
Finally, it appears Florida is one the few remaining states to exclude evidence of a victim’s prior violent acts absent evidence that the defendant had knowledge of the prior acts.
Rather, the majority of the states are moving “toward admitting some form of this evidence [because evidence of the victim’s propensity for violence] has substantial probative value and will help the jury identify the first aggressor when the circumstances of the altercation are in dispute” regardless of whether the defendant has prior knowledge. Commonwealth v. Adjutant, 443 Mass. 649, 659 (Mass. 2005),
In abandoning the minority position that Florida clings to, the Massachusetts Supreme Court reasoned:
Admission of evidence showing the victim’s prior violent acts on the first aggressor issue reflects the principle that ‘in criminal cases there is to be greater latitude in admitting exculpatory evidence than in determining whether prejudicial potentialities in proof offered to show guilt should result in its exclusion.’
‘Where the victim’s propensity for violence is in question . . . the danger of prejudice to the defendant lies in refusing to admit such evidence.’
So if I am Mark O’Mara or Don West, and Judge Nelson refuses to allow the evidence of Trayvon Martin’s prior acts of fighting into evidence, I argue that Florida should adopt the majority rule; and not to do so violates due process.
While Nelson would still deny it at this point, the issue would be preserved for appeal.
School Disciplinary Reords
At the onset, I would agree that Trayvon Martin’s disciplinary records or the reason for his suspension is completely irrelevant. However, if Trayvon Martin’s family members or friends attempt to mislead the jury as to why Trayvon Martin was staying in Seminole County or portray him as a good child that never got into trouble, the evidence may become very relevant.
This is because if a witness offers misleading testimony or makes a specific factual assertion about his character, the opposing party can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)
Zimmerman’s Prior Bad Acts or Crimes
While the general rule is that evidence of the defendant’s prior bad acts or bad character is inadmissible. There are two exceptions to this rule.
Williams Rules Evidence
The State can introduce evidence of prior bad acts to show motive, intent, absence of mistake, etc., but only if they have filed what is known as a Williams Rule Notice at least ten days prior to trial. (To date, no Williams Rule Notice has been filed.) Usually, Williams Rule evidence is only admissible to show fingerprint type evidence (i.e. the defendant used the same disguise in prior crimes, he said the exact same statements, etc.)
Absent a Williams Rule Notice, if the Defendant testifies, the only manner that his character can be attacked is through impeachment with prior convictions for prior felonies or crimes of dishonesty.
However, contrary to what Ben Crump believes, “prior arrests which do not result in convictions are an improper subject for impeachment or cross-examination.” Baker v. State (Fla. 4th DCA 2012); citing Fulton v. State, 335 So. 2d 280, 283 (Fla. 1976) (“Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness.”)
Likewise, allegations in a civil injunction, even if granted, are inadmissible to prove a violent character.
If a defendant offers misleading testimony or makes a specific factual assertion about his character, the State can then impeach the misleading evidence or character evidence with evidence that would otherwise be inadmissible. Bozeman v. State, 698 So. 2d 629 (Fla. 4th DCA 1997) citing Allred v. State, 642 So. 2d 650 (Fla. 1st DCA 1994) (Once defendant testified he would never hit a woman, evidence that he hit his first wife and a former girlfriend admissible as impeachment.)
In this regard, the fact he is alleged to have struck his girlfriend or shoved the officer in prior incidents could be admissible if he testified that he has never struck someone unprovoked (or something similar). If he were to be foolish enough to testify as such, then he could be cross-examined on the allegations against him in the dismissed Orange County criminal case and the ex-girlfriend’s injunction.
However, such evidence is not considered “substantive” evidence (meaning it is admissible in and of itself for some relevant reason). Rather, such evidence is solely impeachment evidence that cannot be brought up unless George Zimmerman opens the door to it.
Admissible or Assassination?
So now that you know the law that most likely applies to the evidence in question, what do you think? Admissible Character Evidence or inadmissible Character Assassination?