Zimmerman Case: Experts Call State’s Scream Claims “Absurd” “Ridiculous” and “Imaginary Stuff”

Hey folks,

A few minutes ago I put up my most recent blog coverage of the Zimmerman case at the Legal Insurrection web site.

In it I cover  yesterday’s testimony of the defense’s expert witnesses on speech science, Dr. J.P. (Peter) French and Dr. George Doddington.  Their testimony was terribly destructive of the State’s expert witnesses (Mr. Tom Owens and Dr. Alan R. Reich) and their testimony, and both men repeatedly laughed out loud at the State’s expert’s testimony and methodology.

A cynical person might suspect that the terrible performance of Mr. Owens and Dr. Reich for the State, and the powerful response by the defense experts Dr. Hirotake Nakasone, Dr. J.P. French, and Dr. George Doddington, could make it more likely, rather than less, that Judge Nelson would approve their testimony for trial.  For an explanation why,  check out my CRAZY IDEA OF THE DAY at the bottom of my Legal Insurrection blog post.

The Zimmerman court is currently recessed with jury selection to start on Monday, so we might all have a day off the case for today.  It’s looks like a beautiful Sunday here in New England, and trust you’ll all enjoy a similarly great day.

Best,

Andrew

Zimmerman Case: Hear Trayvon Martin's Voice for First Time

Hey folks,

In breaking news, for the first time we have an exemplar of Trayvon Martin’s voice, obtained by ABC News.  To date, the lack of an exemplar has greatly complicated speech analysis of the background screams in the Witness #11 911 call.

Trayvon’s voice can be heard here (note that I’ve looped the little I have three times).

For comparison purposes, the relevant portion of the Witness #11 911 call can be heard here.

For the whole story and analysis on these breaking events, see the full post at Legal Insurrection:

Zimmerman Prosecution’s Voice Expert admits: “This is not really good evidence”

Best,

Andrew

Zimmerman Case: Prosecution Speech Expert: "This is not really good evidence."

Hey folks,

Over at Legal Insurrection I just posted on what can only be described as the train-wreck Frye hearing testimony of the state’s two speech experts.  Based on what I heard live streaming the testimony, it’s hard to believe either of these guys would be called to testify at trial–the blood letting by the defense would only get worse.

Also, breaking news, for the first time we have an exemplar of Trayvon Martin’s voice, obtained by ABC News.  To date, the lack of an exemplar has greatly complicated speech analysis of the background screams in the Witness #11 911 call.

Trayvon’s voice can be heard here (note that I’ve looped the little I have three times).

For comparison purposes, the relevant portion of the Witness #11 911 call can be heard here.

For the whole story and analysis on these breaking events, see the full post at Legal Insurrection:

Zimmerman Prosecution’s Voice Expert admits: “This is not really good evidence”

Best,

Andrew

 

Zimmerman Case: Dr. Hirotaka Nakasone, FBI, and the low-quality 3-second audio file

Hey folks,

Over at Legal Insurrection I just posted on yesterday’s devastating testimony by Dr. Hirotaka Nakasone, the FBI’s expert on speaker recognition, and his conclusion that attempting to identify the person screaming from the Witness #11 recording can only be described as scientifically “disturbing”.  I discuss his explanation in great detail, but if you only have a few minutes you can capture the gist of things by reading just the bulleted highlights at the start.

[If you decide to go for the Long Version, settle down with some snacks and fluids!]

Best,

Andrew

 

Zimmerman case: Out of the Frye-ing pan, into the spectagraph

Hey folks,

Just touching base to let you know I’ve made another blog post on Legal Insurrection regarding the Zimmerman case.  This one focuses on the start of yesterday’s Frye hearing to determine what expert testimony, if any, will be allowed at trial on whether it was Martin or Zimmerman screaming in the background of the Witness #11 911 call.

The Legal Insurrection blog post can be accessed directly here.

Later this morning I’ll be post on the devastating testimony yesterday of Dr. Hirotaka Nakasone, the FBI’s expert on speaker recognition, and his conclusion that attempting to identify the person screaming from the Witness #11 recording can only be described as scientifically “disturbing”.  I’ll discuss his explanation why in detail.  Keep your eyes open for it!

Best,

Andrew

Cool news–I'll be reporting on the Zimmerman trial for the Legal Insurrection web site!

Hey folks,

Some cool news, I’ve been invited by Professor William Jacobson to guest-blog the Zimmerman trial on his outstanding Legal Insurrection web site.

If you’re not familiar with Legal Insurrection, you should be–it’s one of the handful of sites I visit faithfully several times a day.   Great content, and well delivered.

My first Zimmerman-related blog post went live on Legal Insurrection this evening:  Getting to Murder 2:  Finding George Zimmerman’s “Depraved Mind”.  In it I talk about the fact that the prosecutors need to prove, beyond a reasonable doubt, that Zimmerman is guilt as charged before self-defense even enters the picture at trial, and the challenges they are likely to run into in their efforts to do so.

There’s an old saying in the legal circles:  “When the facts are on your side, bang the facts.  When the law is on your side, bang the law.  When neither is on your side . . . bang the table.”  I expect we’re going to see a lot of banging on the prosecutor’s table in the course of this trial.

I’ll post here each time I put a new Zimmerman-related post on Legal Insurrection, but I strongly encourage everyone to consider Legal Insurrection as a top-of-the-list blog follow in its own right.

Best,

Andrew

Can the Prosecution Keep Trayvon’s History of Violence and Drug Use from the Jury? Yes . . . and no.

Last Friday prosecutors in the Zimmerman self-defense case filed in limine motions asking the judge to prohibit defense lawyers from introducing evidence of Trayvon Martin’s history of violence and drug use at trial.   (An in limine motion is simply a request to the judge that certain evidence be excluded from a trial.)

Anyone who has had to defend themselves against an unprovoked attack by a violent person would naturally like to have the jury hear about their attacker’s history of violence and drug use.  The attacker’s history of violence would support the defender’s explanation of why they needed to use force to defend themselves, and the attacker’s history of drug use would help explain the otherwise irrational behavior of an unprovoked attack.

Getting your attacker’s history of violence and drug use before the jury, however, can be more complicated than one might imagine.  In addition, there is a huge amount of variation among the fifty states in terms of the circumstances under which they allow such evidence at trial.  (Table 5-3 in “The Law of Self Defense” provides the rules for admitting such evidence in each state, but for purposes of this blog post I will limit our discussion to Florida.)

There is a general evidentiary rule that evidence intended to prove that a person acted in a certain way on one particular occasion just because he has acted in that way on previous occasions is inadmissible.  That is, evidence can not be introduced to prove that a person acted in conformity with their past conduct.  There are, however, numerous exceptions to this general rule, particularly in the context of claimed self defense.

To understand how these exceptions work in self defense cases it is first necessary to understand that the law draws sharp distinctions between two different types of evidence of a person’s past conduct, between two lawful reasons such evidence may be admissible, and between whether the defendant knew, or did not know, of the evidence at the time they acted in self defense.

In terms of the two types of evidence of a person’s past conduct the law differentiates between character/reputation evidence on the one hand and specific prior acts on the other.  Character or reputation evidence tends to be general, rather than specific, in nature.  So, for example, the jury might hear that a person had a reputation in the community for honesty (or dishonesty), for peacefulness (or violence), for sobriety (or drug use), but they would not hear about specific instances of such conduct.  In contrast, specific prior acts evidence tends to be very specific in nature, so that a jury might hear of a person’s past arrests or convictions, or hear a witness describe how they observed the person lie or fight or use drugs on a particular date and the detailed circumstances around those events, but the jury would not be told that these specific acts amounted to a general reputation for acting in such a manner.

The law also differentiates between two legally acceptable reasons why evidence of a person’s past conduct may be admissible in the context of a self defense case.  The first reason is that the evidence may help the jury to determine who was the initial aggressor.  This is obviously a key issue in a claim of self defense because in most circumstances only a non-aggressor is eligible to claim self defense as justification for the use of force against another.  The second reasons is that the evidence may justify the fear of the defendant under the circumstances.  This is a key issue in a claim of self defense because in most circumstances a person must be in reasonable fear of harm or death/grave bodily harm before they are justified in using force/deadly force in self defense.

Finally, states also may differentiate between the situation in which the defendant was aware of the attacker’s history at the time he acted in self defense, versus the situation in which the defendant learned of this history only after the fact.

Obviously, then, this gives us three sets of binary conditions—two types of evidence (reputation/specific acts), two types of lawful purposes (initial aggressor/reasonable fear), and two states of knowledge (known to defendant at the time/not known until later)—from which each state makes their particular choices regarding the admissibility of an attacker’s history.   Simple mathematics tells us that there are 12 possible ways to combine these various elements, and most of these possible combinations are in play in one state or the other.  Indeed, often a single state employs more than one combination.

In Florida, and therefore in the Zimmerman trial, the particular combinations that are legally accepted are:

  • General reputation – to show aggressor – even if not known by defendant until later
  • Specific prior acts – to show reasonable fear – only if known to defendant at the time

Or, as described the a Florida Court of Appeals in 2010:

The purpose of introducing the reputation evidence in a self-defense case is to show that the victim was the initial aggressor. Reputation evidence is offered to show that the victim acted in conformity with a known character trait. Because reputation evidence relates to the conduct of the victim, the defendant is not required to have had prior knowledge of the victim’s reputation in the community.  . . . the purpose of specific acts evidence in a self-defense case is to demonstrate the reasonableness of the defendant’s fear at the time of the incident. Because the defendant’s state of mind is at issue, before the defendant may introduce specific acts allegedly committed by the victim, he must show that he had prior knowledge of these acts.

Munoz v. State, 45 So.3d 954 (FL Ct. App.  2010)

In the context of the Zimmerman trial, George Zimmerman had no knowledge of Trayvon Martin before their lethal encounter.  As a result, Zimmerman could not have had any knowledge of Martin’s history of violence and drug use at the time he acted in self defense.

As a result, under Florida’s framework for admitting evidence of an attacker’s history, Zimmerman’s lawyers would not be permitted to introduce into evidence specific acts of Martin’s violence and drug use.  To the extent that the prosecution is seeking an in limine order to have such specific prior act evidence excluded from the trial, they are likely to be successful.

On the other hand, under Florida law Zimmerman is permitted to introduce evidence of Martin’s reputation in the community for violence and drug use, even though Zimmerman was not aware of this reputation at the time, as proof that it was Trayvon Martin, and not Zimmerman, who was the aggressor in the conflict.

There is one additional wrinkle that could potentially open the door for the admission of specific prior acts evidence of Martin.  Even where such specific prior acts evidence is not generally permitted, as in the circumstances of the Zimmerman case, if one side of the legal dispute introduces positive reputation evidence to strengthen their case, the other side is generally allowed to introduce evidence of specific acts to undermine that reputation evidence.  That is, if one side puts reputation into play, the other side is permitted to attack that reputation evidence with contrary evidence of specific prior acts.  Under this exception, if the prosecution were to try to portray Trayvon Martin as having a peaceful and sober reputation in the community, the defense may then be able to introduce evidence of Martin’s specific acts of violence and drug use.

This exception is normally applied to witnesses at a trial, and it is unclear whether it would apply under Florida law to a decedent. I expect, however, that we’ll be able to tell which is the case by the prosecution’s conduct.  If the prosecution describes Martin to the jury as peaceful and sober, it’s a safe bet that they are not afraid of having to face the defense introducing specific prior acts evidence.  Conversely, if they refrain from describing Martin to the jury as peaceful and sober it is a safe bet that they are trying to avoid admission of Martin’s specific acts of violence and drug use.