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?
Character Evidence
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.
Reputation Evidence
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
Marijuana Use
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.
Impeachment Evidence
First, we know Witness 8 will likely testify about Trayvon Martin’s statements to her and we know 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.
Impeachment
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?
24 responses to “Trayvon Martin: Character Evidence or Character Assassination?”
Thanks for the reasoned response, now it is interesting at least to me that in all of your responses it appears that the roles (positions) of the State and the Defense are switched. Is this because it is a self defense case?
In a sense yes, when a defendant raises self defense he is in effect arguing that it was actually the victim who committed the crime, which required him to defend himself.
To respond to your question and if you apply the definition in the Merriam-Webster dictionary; : the slandering of a person usually with the intention of destroying public confidence in that person, then a resounding no.
Of course, that still does not mean it will be admissible as you explained, but as to character assassination, my answer would be no. It does destroys the image that for over a year persisted of a cute kid, killed by a bully, though.
Great post, thanks for the good read.
I had one question. In re: admissibility of evidence of Trayvon’s drug use as impeachment evidence, could the prosecutors successfully make the argument that the evidence is less likely to be probative of the witness’ knowledge of Trayvon than it is to mislead the jury and unfairly prejudice Trayvon?
This question is a toss up. In my mind, the law is pretty clear that any statements of Trayvon Martin’s should be impeachable by the fact he had ingested a narcotic around the time he made the statements. However, Judge Nelson could very well conclude that the prejudicial value outweighs any probative value.
Excellent information. My one question, is that given this is a self defense case, should the prosecution have expected the defense to file to add the martin texts and pics into discovery? And if prosecution through depositions or other investigative means, found this information out, didnt they have requirement to turn it over to defense? I think the answer is yes and that would lead to one more question, why do you think the state thought they could delay sharing this with defense?
The prosecution knew this information was coming, but it is their job to try and exclude as much damaging evidence as possible. As for late disclosure, I believe that Mark O’Mara is raising this issue in an forthcoming motion for sanctions.
I had not seen where Mr. Martin had said that; like most parents, we tend to either not know, or not wish to accept, that our children are not behaving the way we brought them up.
And I think it also highlights the underlying problem with this case, it is based on a False Narrative of a completely innocent child who could never had provoked this altercation.
What did Martin do to provoke Zimmerman to get out his vehicle and give chase?
Did Martin have any rights? Did he not have the right to go about his business unmolested? If, someone can be slaughtered because they are considered suspicious, then surely one can be murdered because they are considered to be bigots. No?
I would agree with you, except George Zimmerman’s defense is that Trayvon Martin attacked him first, under those circumstances, George Zimmerman had a right to defend himself.
I would like to comment on your comment about Marijuana being a Narcotic. FYI
What is a “narcotic” drug?
The first thing you should understand about the word “narcotic” is that it is used incorrectly more than it is used correctly. One good, quick way to tell whether someone actually knows anything about this subject is to listen to their use of this word. If they tell you that marijuana, cocaine, and meth are “narcotics” then count them among the vast legions of totally clueless people on this subject.
The word “narcotic” comes from the Greek word “narkos”, meaning sleep. Therefore, “narcotics” are drugs that induce sleep. Specifically, that means the opiates such as heroin, morphine and related drugs. This is the correct meaning, so you should accept no other.
Cocaine and meth are not “narcotics”. They are “stimulants”, the exact opposite of a “narcotic”. They cause people to be more awake and more active, not sleepy. Calling them :”narcotics” makes as much sense as calling coffee a “narcotic”.
The classification of other drugs such as marijuana, alcohol, and others is open to question. (That is a subject for another page.) Some might call them “tranquilizers”, “depressants”, or even “hallucinogens”. Marijuana and alcohol may even have a tendency to induce sleep at times. However, calling them “narcotics” simply shows a lack of understanding of the different effects.
http://www.druglibrary.org/gh/what_is_a_narcotic.htm
Maybe some education is necessary before a misinformed statement is offered.
I am unsure of what the point of your post is, unless it is solely to be rude.
You cite the Latin root of the word, but you fail to acknowledge that a word’s meaning and use in society changes over time. Regardless of your righteous indignation, simply saying that the vast majority of people are clueless does not make you right. The bottom line is that the commonly accepted use of the word Narcotics when speaking to a general audience is that it refers to illegal drugs. If I was writing to a scientific community, then, maybe, my word choice might be more important to the context of my article.
Regardless, it matters not what I categorize marijuana as, for purposes of my blawg, the bottom line is that under Florida Statute 893.03(1)(c)(7), cannabis is a Schedule 1 drug, meaning it is defined as having “a high potential for abuse and has no currently accepted medical use in treatment.”
While I personally disagree with the medical use provisio, it is nonetheless the law, and your internet opinion is not admissible in a court of law.
I was not being rude, so don’t get defensive please. I didn’t write that, it came from a link i posted, they were NOT my words. Anyway i know a lot of people misconstrue through their verbiage what something actually is, when it’s not truthful. And admittedly there is a lot of ignorance out there about Drugs, so that is a Fact too.
I think sometimes this is what O’Mara is counting on, that he wants the potential jury to see Trayvon was some kind of “Gangsta”, and painting a picture of that type of lifestyle that he would like to portray Trayvon in. Which is nowhere near truthful, it is in fact “Disgusting”, and this is what GZ’s defense team is showing us, that they really don’t have a case to go ahead with, in fact it is blatantly obvious.
Again, you throw around terms like “ignorance” as if your position has some type of basis in empirical research.
Your “source” is to druglibrary.org, which is not an organization, but is a website run by a man named Cliff Schaffer who is a marijuana reform advocate. He is no more an authority on lexicon than I am in mathematics.
Mr. Schaffer also runs a website called http://www.marijuanabusinessnews.com; so he lack pretty much any credibility as some type of authority on anything but making money off of the legalization of marijuana.
Finally, neither you nor I know if Trayvon Martin was a thug or not. And considering that it is George Zimmerman who has a right to put on a claim of self defense and present any admissible evidence to support his claim that he defended himself against Trayvon Martin, I am in no position to morally fault him; and if you have read this post, you will see that legally I think most of the evidence is admissible one way or another.
Richard,
I am a bit dismayed at your response to what I thought was an excellent point by Joss. The term narcotic to me is a pretty misleading description of marijuana and implies a far more serious problem. I believe that public attitudes have greatly shifted towards decriminalization over the past 10 years owing to the fairly harmless perception of the drug. My first reaction to the way you used the term was [this is a bit of overkill].
I really think that your bias as a defense artist has overshadowed your objectivity here, and it disappoints me because you have been on point on so many occasions over the part 4 years.
Lastly, there is an inconsistency about the Travon the drugged out fighter theory that troubles me. People who are prone to fighting ( *especially*) under the influence, do not normally flee.Instead, they tend to be confrontational. Therefore, the theory that for Travon was high on drugs and behaving aggressively, would have been nore consistent had Travon confronted George the moment he notices he is being followed. That George followed Travon for some distance before the confrontation, leads me to believe that Travon may have been cornered and needed to fight his way out.
As an African American, it was always drilled into my head as a kid, never allow yourself to be cornered by a stranger, and if you are cornered,you must fight your way out. I believe these instructions are also given to women when followed by a stranger. But you do not appear to be remotely open to this possibility, instead insisting that the “narrative” is people perceive Travon as an angel who would never start a fight.
I also noticed that you suggest that Travon was high, presumably by the presence of marijuana in his toxicology report. That does not mean he was high though, and I am certain that you have argues that point before.
No doubt, you are a very good defense attorney and were I to land in any trouble, you would be one of the first I call, but I think your analysis is very skewed.
My concern with Joss is not so much whether marijuana is considered a narcotic or drug; but the fact that someone was so full of them-self that they wanted to try and correct me when I was being courteous enough to answer someone who asked a question. For purposes of my answer, it mattered not whether I used the word drug, narcotic, illegal substance, etc. BUt Miss. Goody Two Shoes decides she wants to scold me by citing to a medical marijuana purveyor. No thank you.
But as for your overall points, I agree.
I just don’t enjoy ignorant and rude people trying to “correct” me with incorrect information, especially considering how irrelevant it was to the overall discussion.
Joss,
In the medical community the term ‘narcotics’ actually refers to opioid or opioid-like pain killers (not sleep aids as you incorrectly claim).
In the LE community, the term ‘narcotics’ is used much more generally to describe a wide variety of illicit drugs.
Regardless of websites etc. Marijuana is NOT a Narcotic.
It also doesn’t matter if Trayvon was a gangbanger or whatever, George Zimmerman had no legal right to do anything on that evening except to call in his concerns and then to wait for LE to handle the matter. That George Zimmerman took it upon himself to hunt Trayvon Martin, as he was advised against doing per his NEN call, makes him the first aggressor, so it’s all a moot point as far as his SD claims. GZ has no right to claim self defense, and even the experts agree to that.
1. We all have legal rights to enforce laws and make arrests in certain instances. Anyone who told you that your only right in these situations is to call 911, is imply wrong.
2. On this forum, which is respectful and logical, words like “hunted” and “gang-banger” have no place. You may be better suited for commenting at Huffpo or Fox News.
Well said.
Re your point 1. Woe be on another citizen who tries to detain me when I am merely walking and minding my own business.
narcotic nar·cot·ic (när-k?t’?k)
n.
A drug derived from opium or opiumlike compounds, with potent analgesic effects associated with significant alteration of mood and behavior, and with the potential for dependence and tolerance following repeated administration. adj.
Capable of inducing a state of stuporous analgesia.
The American Heritage® Stedman’s Medical Dictionary
Copyright © 2002, 2001, 1995 by Houghton Mifflin Company. Published by Houghton Mifflin Company.
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American Heritage
Science Dictionary
narcotic (när-k?t’?k) Pronunciation Key
Any of a group of highly addictive analgesic drugs derived from opium or opiumlike compounds. Narcotics can cause drowsiness and significant alterations of mood and behavior.
The American Heritage® Science Dictionary
Copyright © 2002. Published by Houghton Mifflin. All rights reserved.
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Example sentences
He found baggies containing narcotic residue and items of drug paraphernalia with residue on them, according to the warrant.
At the time, she was not on narcotic pain medication.
The confiscated narcotic drugs are declared forfeit.
But some varieties of the hemp plant are used to make marijuana, a narcotic
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What is a narcotic?
http://www.dictionary.com/browse/narcotic
Then maybe this is a better link for you to understand the word Narcotic?
I didn’t know marijuana was an opiate drug, and it isn’t.
All of this talk of narcotics made me laugh. It’s the word police! I’m a former newspaper editor now dealing with serious late effects from cancer treatment, and I also volunteer with cancer patients. The use of the term “narcotics” for illegal drugs is perfectly acceptable. It’s the first definition on Wikipedia, which is a great source of common usage.
I’ve been using it to refer to opioids, but it’s no wonder I’ve been getting strange looks from some people. (My drugs are all prescribed legally, and I’m not on them now, just fyi.)
Opioids give me energy at lower doses; they don’t put me to sleep. That’s true of a number of other people. Marijuana sets me on edge, as it does some other people. Like alcohol, pot can also make people less inhibited about actions they might not otherwise take.
Bottom line: Drugs can work differently in people. As far as the evidence goes, we don’t know if pot made Trayvon more of a risk-taker or more peaceful.
Thanks for humoring me. I’m glad I found this blog, courtesy of TalkLeft.