Cross posted from Frederick Leatherman Law Blog

George Zimmerman. Photo by Seminole County Sheriffs / Wikimedia Commons.

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.