Zimmerman Trial: If State can’t get murder 2, can they get manslaughter? Yes . . . and no

Hey folks,
As we all know by now, Zimmerman has been charged with second degree murder. In Florida second degree murder requires that the State prove, beyond a reasonable doubt, that Zimmerman possessed a “depraved mind” at the moment he killed Trayvon Martin.

For an explanation of Florida’s requirement of a “depraved mind,” click here:

Getting to Murder 2: Finding George Zimmerman’s “Depraved Mind”

Florida’s murder statute can be viewed here:

782.04 Murder

The jury instruction specifically for second degree murder can be viewed here:


As I discuss in that analysis, the prospects for the State being able to prove, beyond a reasonable doubt, a depraved mind is vanishingly small in this case. This prospect has only grown smaller as the State has continued to parade in its witnesses only to see their testimony favor the defense.

Bottom line, there’s no murder 2 here, and never has been.

As others have come to the same realization in recent days, however, I’ve been inundated with questions around whether if the state can’t prove murder 2, doesn’t that mean Zimmerman must be acquitted? Or can the State somehow “sneak in” manslaughter?

As it happens, there is no “sneaking” required by the State prosecutors on this point. Manslaughter is a lesser included offense of second degree murder in Florida as a matter of law. Even if the evidence for murder 2 were strong, instead of pathetically weak, the jury would still have been instructed on manslaughter, and they will be instructed on manslaughter in this case, as well.

Invariably the next question is, well, what are the prospects that the State can convict Zimmerman of manslaughter?

You can view Florida’s manslaughter statute here:

782.07 Manslaughter

To clearly understand the issue, however, we need to take a step back, and consider what the State actually has to accomplish in this case (or, really, any self-defense case).

(1) They need to prove each and every element of a criminal charge–either murder 2 or manslaughter–beyond a reasonable doubt.

(2) They have to disprove any single element of the legal defense of self-defense-beyond a reasonable doubt.

I’ve mentioned there’s no way the State can prove murder 2. Manslaughter, however, should be a walk in the park. All that’s really required of the state is to prove (a) Zimmerman deliberately used force against Martin, and (b) Martin died as a result (I’m simplifying of course, but you get the idea).

Even if the state can prove the elements of manslaughter beyond a reasonable doubt–and I believe they can–they still need to overcome Zimmerman’s claim of self defense if they wish to obtain a conviction on that charge.

Unless the State can disprove self-defense beyond a reasonable doubt, the jury must conclude that Zimmerman did, in fact, act in self-defense. Because self-defense is an absolute justification for the use of deadly force against another, it matters not a whit if the elements of either murder 2 or manslaughter have been proven 2 beyond a reasonable doubt–the verdict must be “Not Guilty.”

So, the bottom line is: If the State can’t prove murder 2, they can almost certainly prove manslaughter–but still not get a verdict of “Guilty” if they can’t disprove self-defense.

It’s too late tonight to get in to the many reasons I believe the State can’t come close to disproving Zimmerman’s claim of self-defense in this case, and therefore why I believe firmly that he will not be found guilty (or, if found guilty, the verdict will be promptly reversed–also too late to get into the reasons for that), but I’ll try to get another post up this week on the subject.

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6 thoughts on “Zimmerman Trial: If State can’t get murder 2, can they get manslaughter? Yes . . . and no”

  1. babscritique@gmail.com

    You are incorrect about what the state has to show. The burden of proof rests with the defense in a self defense claim, not the state.
    In an affirmative defense, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff’s claim. An affirmative defense is known, alternatively, as a justification, or an excuse, defense.[2] Consequently, affirmative defenses limit or excuse a defendant’s criminal culpability or civil liability.

    A clear illustration of an affirmative defense is self defense.[3] In its simplest form, a criminal defendant may be exonerated if he can demonstrate that he had an honest and reasonable belief that another’s use of force was unlawful and that the defendant’s conduct was necessary to protect himself.[4]

    Most affirmative defenses must be pled in a timely manner by a defendant in order for the court to consider them, or else they are considered waived by the defendant’s failure to assert them. The classic unwaivable affirmative defense is lack of subject-matter jurisdiction. The issue of timely assertion is often the subject of contentious litigation.

    Mistake of fact[edit]

    “Mistake of fact” is not an affirmative defense: it does not require proof but it does introduce doubt. In mistake-of-fact defenses, the defendant asserts that his mistaken belief prevents the establishment, beyond a reasonable doubt, of the required mens rea. It can be used with other defenses such as self-defense. Self-defense would still be available even if the defendant mistakenly believes that he was in imminent danger of harmful or offensive bodily contact.

    The insanity plea[edit]

    Among the most controversial affirmative defenses is the insanity defense,[5] whereby a criminal defendant seeks to be excused from criminal liability on the ground that a mental illness, at the time of the alleged crime, prevented him from understanding the wrongful nature of his actions.

    Burden of proof[edit]

    Because an affirmative defense requires an assertion of facts beyond those claimed by the plaintiff, generally the party who offers an affirmative defense bears the burden of proof.[6] The standard of proof is typically lower than beyond a reasonable doubt. It can either be proved by clear and convincing evidence or by a preponderance of the evidence.

  2. And this, ladies and gentlemen, is how poorly informed people get into serious legal trouble.

    The gentleman below simply doesn’t understand the difference between the burden of production–which the defendant DOES bear for purposes of self-defense, but which is merely a minimal showing of evidence to allow the issue to be heard by the jury–and the burden of persuasion–which is born by the state to DISPROVE self-defense beyond a reasonable doubt. (Except in Ohio, which still uses the antiquated rule that the defendant bears the burden of persuasion on self-defense, by a preponderance of the evidence.

    There’s a lot bad information out there, just like the stuf above. Do yourselves a favor, spent a couple of boxes of ammo worth of money and learn the actual law of self-defense–buy yourself “The Law of Self Defense, 2nd Edition.”

    –Andrew, @LawSelfDefense

  3. mycorrado@msn.com

    Andrew, thanks for your very informative posts and the coverage of Zimmerman, and very well said. besides a gun, a close second best element needed to defend ourselves is knowledge 😉
    Does your book cover all states or just Florida?

    1. andrewbranca@gmail.com

      Thanks for the kind words.
      The Law of Self Defense, 2nd Edition covers all 50 states in great detail.

      –Andrew, @LawSelfDefense

  4. commex@hotmail.com

    Does Florida, like some states, require that the negligence of the Defendant be the sole proximate cause of the death? Is there an argument that TM was also negligent and a proximate cause of his death by approaching and fighting with someone he believed to be a “crazy ass cracker” instead of avoiding the situation and that his negligence was a concurrent cause of his death?

  5. kevinknox@embarqmail.com

    I’m no legal mind at all, but your commentary’s been brilliant and helpful.
    My question is one of twisting things in the jury’s mind. It seems a jury of equally non-legal minds to my own might find a bit of wiggle room in the instructions read to the jury. (I just finished reading them. Eye-opening.) If I presumed George Zimmerman were engaged in an illegal activity when he got out of his car, wouldn’t that blow up the Self-Defense claim? Zimmerman was engaged in a legal activity, but if the jury were look at a mother bereft of a child prematurely, wouldn’t it be possible for a juror to convince herself Zimmerman was moved to get out of the car by illegal profiling?

    Doesn’t the case Zimmerman became engaged in an illegal activity from the moment he profiled Martin put Zimmerman at considerable risk in front of this jury?

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