George Zimmerman : Witness Support and Legal RecapBecause of quoting rules, I can't quote within a quote so I did them in
red. This thread has some great legal discussion on it because it is mostly the lawyers doing the post. Us laypersons don't really chime in until the bottom third of the comments.
...To clear up some misconceptions I've been reading in comments here and elsewhere, here are some key legal points to keep in mind. These are based on my review of Florida statutes, case law and jury instructions. I think the state's (5.00 / 1) (#49)
by Jeralyn on Sun Jun 24, 2012 at 09:08:35 PM ESTargument will be he was the aggressor because he followed Trayvon and that somehow put Trayvon in fear of imminent physical harm, entitling him to respond to the perceived threat with force.
The problems are first, the law in Florida says the provocation had to be contemporaneous with the force the victim used in response. If GZ was walking back to his car having lost sight of TM, and was no longer following TM, then TM's punch was not contemporaneous with GZ's provocation. In which case GZ is not the aggressor and had no duty to retreat.
Also, there is no evidence we know of that GZ was about to attack TM. In order for TM to respond to GZ with force, TM had to reasonably believe he was about to be attacked by Zimmerman. There's nothing to support such a belief. In fact, just the opposite: His friend DeeDee says he spoke first when they finally met up: TM said to GZ, "Why are you following me?" She says GZ asked him "What are you doing here?" That's hardly an indication of an intent to assault. Either is reaching into his pocket for a cell phone.
I don't see GZ as the aggressor here by any set of facts the state has propounded. Ultimately, the judge will make the call whether the jury is even instructed on the aggressor statute. (I won't be surprised if he allows it, but I would argue it's the wrong call.)
Quote:
Self defense burden of persuasion (5.00 / 1) (#136)
by Michael Masinter on Mon Jun 25, 2012 at 10:24:28 AM EST
...Florida leaves the burden of proof with the prosecutor to disprove GZ's defense, which is traditionally an affirmative defense that the defendant must establish.
That aspect of Florida law makes this case unique, in my opinion. If GZ were in a state where he had the burden to prove self-defense (and I believe many if not most states require as much), the trial might look a bit different.
Florida law is not unique in assigning the burden of persuasion to the state. Although SCOTUS held in 1987 in Martin v. Ohio that states constitutionally may assign to the defendant the burden of persuasion on self defense, almost none do. Ohio appears to be unique today; other states seem to apply the same rule as Florida: The defendant has the burden of production on self defense, but once the defendant satisfies his burden of production, the state has the burden of persuasion to disprove self defense.
The general rule is that to obtain a self defense instruction, the defendant must produce admissible evidence from which a rational jury could conclude that he lawfully killed in self defense. If the defendant can produce that evidence, the state, in Florida and elsewhere save Ohio, bears both the burden of persuasion to prove beyond a reasonable doubt that the killing was not justified by self defense. If the defendant's evidence, though sufficient to meet his burden of production, is thin, the state will have an easier time meeting its burden than if that evidence is convincing, but either way the state will bear the burden of persuasion.
Where states do vary is on the question of what constitutes sufficient evidence to obtain a self defense instruction. Some states retain a limited duty to retreat, while others, including Florida, have abolished that duty. In the states that retain a duty to retreat, obtaining a self defense instruction can be more difficult, but even in those states, the duty to retreat is a duty to retreat safely, and if you view the evidence in the light most favorable to Zimmerman as you must in assessing whether he has met his self defense burden of production, the only question would seem to be whether his fear of death or great bodily harm was actual and reasonable since nobody could retreat while on his back.
I was rereading some older threads at Talk Left and found Michael Masinter's comment. It is my firm belief that Zimmerman will walk away from this.
Michael Masinter's CreditialsThis guy is no legal slouch.
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