Read Slate’s complete coverage of the Trayvon Martin case.
As new information continues to surface about Trayvon Martin and George Zimmerman, we’re hearing a lot about how the facts are dividing rather than uniting us. As David Carr points out, as social media and the Internet take over the conversation, what you make of Martin’s use of the Twitter handle @no_limit_nigga, or the hard-to-hear 911 call in which Zimmerman may or may not have used a racial epithet, has a lot to do with your own predilections. Most of us have staked out a position by now. We have a gut sense about whether Martin was killed for little or no reason, or whether Zimmerman truly acted in self-defense, as he claims. We read the evidence in a way that confirms our instincts.
But let’s imagine for a moment that Zimmerman gets arrested, stands trial for homicide, and argues self-defense in court. That is what I still think should have happened, with or without Florida’s Stand Your Ground law (though it’s true that the law hasn’t helped). If Zimmerman is ever tried by a jury (instead of by public opinion), what evidence would be admitted? What would the jury likely hear in deciding whether to convict Zimmerman for Martin’s death?
I asked a few defense lawyers and criminal law experts that question—Dana Bazelon (my sister) and Paul Messing, a law firm colleague of hers; Harlan Protass (a Slate contributor); and Rachel Barkow at New York University Law School, who enlisted her colleague and evidence professor Erin Murphy. Here’s what they had to say, going through the evidence I asked them about, piece by piece.
1. The 911 calls reporting Martin’s shooting. Yes, the calls would be admitted at trial—911 calls are always important in cases like these. I still want to know whether voice recognition software can tell us whether it is Martin’s or Zimmerman’s voice we hear pleading for help on the calls. So far, experts have said they don’t think the voice on the call is Zimmerman’s.
2. The police surveillance video of Zimmerman taken after the shooting. At first glance, the video seems to belie Zimmerman’s story that Martin slammed his head against the ground, leaving him seriously hurt. But Zimmerman’s father said the video was taken after medics cleaned up his son, and ABC today released enhanced digitalization that, according to one of its reporters, shows what “appear to be a pair of gashes or welts” on Zimmerman’s head.
Yes, the video is almost surely admissible. (I’m waffling only because there’s a chance that Zimmerman’s lawyer could keep it out if he didn’t get a Miranda warning and was in custody and being interrogated.) A prosecutor could introduce the video at trial to challenge any variation in Zimmerman’s story about the shooting and to impeach his testimony if he says he had injuries that don’t show up on the video.
3. The account of the funeral director who prepared Martin’s body for burial. He told CBS that he “could see no physical signs that there had been a scuffle or there had been a fight. You know, on the hands, I didn’t see any knuckles bruised, and that is something we would have covered up if it had been there.”
Yes, the funeral director could testify at trial—his testimony goes directly to the question of whether Martin and Zimmerman had a violent altercation before Zimmerman shot Martin. Erin Murphy says the director can tell the jury: "I saw Martin’s body x hours after the incident, and there were no signs of a fight, the same way forensic pathologists routinely testify to the condition of the victim.” My sister Dana and Paul Messing point out that the defense could try to challenge the director for not being qualified as an expert in post-mortem examination. “Still, the important stuff (that he didn't see any abrasions or contusions on the body) would be allowed in,” they say.
4. The account of Martin’s girlfriend. She was on the phone with him in the minutes before he died (and , unbelievably, the police hadn’t interviewed her as of late last week, according to the Martin family’s lawyers). The girlfriend says Martin told her, "I think this dude is following me," momentarily thought he’d lost Zimmerman, and then said: "He is right behind me again. I'm not going to run, I'm going to walk fast." The girlfriend claims she next heard another voice say, “What are you doing around here?” to which Martin answered, “Why are you following me?" She then heard Martin get pushed and sounds as if his phone was hitting the ground.
Dana, Paul, and Harlan think the girlfriend would be able to testify at trial: “She’s certainly a witness because she heard, even though she didn't see,” Harlan wrote. “The testimony will have to overcome hearsay objection, but that should be a very low hurdle.” Erin isn’t so sure, since the girlfriend’s account of what Martin said is hearsay. However, she says, this could come in under the exception to hearsay that allows witnesses to testify about “dying declarations.” For this to work, though, it would have to be clear that Martin was dying before the phone went dead. The bottom line: The prosecutor and the defense would surely fight over whether to admit it at trial. Since Martin cannot speak for himself, as Zimmerman can, I would like to think this testimony would be admitted.
5. The account of Zimmerman’s father, Robert. He says that after Zimmerman called 911 about Martin—calling him a “suspicious guy”—Zimmerman lost sight of Martin and was walking back to his car when Martin appeared and asked him if he “had a problem.” When Zimmerman said no, Martin, according to Zimmerman’s father, said, “ ‘You do now,’ and he punched George in the nose.” (Sorry, but I have to pause in my dutiful legal analysis to point out that this dialogue is too stilted even for a bad movie.) Then, Robert Zimmerman says, Trayvon got on top of Zimmerman and punched and slammed his head into the sidewalk. It was after that, the father explains, that Zimmerman took out his gun, which he thought Martin had seen.
Rachel, Dana, and Paul say this is hearsay and inadmissible. Harlan points out that there are exceptions to the rule against hearsay that could allow Zimmerman’s father to testify: “The present sense impression (given by Zimmerman to his father), or an excited utterance made by Zimmerman.” In other words, a judge could potentially admit Robert’s testimony as evidence of George Zimmerman’s spontaneous impression of the shooting, or as his statement about a startling or shocking event, made in the heat of the moment. I don’t see how this could work for everything Robert Zimmerman has had to say, though, and I’m not sure it works at all.
6. The witnesses who saw the Martin-Zimmerman struggle. Unnamed witnesses have said they saw Martin on top of Zimmerman. By contrast, a witness named Mary Cutcher, quoted in the NYT, says she saw Zimmerman straddling Martin.
Yes, the eyewitnesses get to testify.
7. Martin’s suspension from school for having a plastic bag with traces of marijuana in his backpack. No, probably not. Erin and Harlan don’t think this would be admitted—it’s not relevant. It’s evidence that could discredit Martin’s character, but it has nothing to do with whether he hit Zimmerman first. Erin also points out that there is evidence against Zimmerman—his prior arrests for assault—that she says “likely would come in anyway, but would definitely come in if Zimmerman opens the door by introducing the victim's character.” So, it’s likely that Zimmerman’s defense lawyer wouldn’t be eager to raise Martin’s school suspension in the first place.
8. Trayvon’s tweets. No, the tweets, in which Trayvon says various nasty things about women, aren’t admissible because they’re not relevant to what happened the night he was shot.
We could keep this going, of course, as we learn more about Zimmerman’s and Martin’s past. But what I’ve learned from this exercise is that the farther afield we get from the shooting, the less what we learn matters for deciding whether Zimmerman should be arrested, charged, or found guilty. What we need to know is what happened in the moments before and during the shooting. The rest says more about us than it does about the killing of Trayvon Martin, and whether it was a crime.
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