Cross Posted From Frederick Leatherman Law Blog

George Zimmerman

Caricature of George Zimmerman

Lonnie Star, a person who comments regularly at my site, wrote the following comment about George Zimmerman’s claim that Trayvon Martin jumped him and was slamming his head repeatedly into the ground:

Once the person on the ground tightens their neck muscles, your only way to lift their head is to lift their entire upper body. Obviously that’s going to be too hard to do, if you’re sitting on their upper body.

If you can’t pick the head up, you can’t slam it back down. Try it with someone, you’ll come away with the impression that it’s just not possible. If you are equal or lighter than the person you are straddling, the mount position is easily defeated if you aren’t trained to maintain it.

GZ has coupled an impossible attack with an unstable perch and tried to make a life threatening event of it. In fact he goes so far as to say that this absurdity actually succeeded many times, taking him to the edge of mortality.

Comparatively it’s as if GZ was saying that TM was standing ten feet away, swinging his fist so fast and hard, that the wind was tearing his head off his shoulders. It only sounds possible in the eye of the imagination. In practice it’s so unworkable it’s silly!

This is one of several comments that Lonnie and I exchanged last night relative to his idea to reenact in the courtroom Martin’s alleged effort to kill Zimmerman by gripping the sides of Zimmerman’s head and repeatedly slamming it into the concrete sidewalk.

I like the idea, but a reenactment is not possible because, as I explained,

Reenactments have to be agreed to by both parties and the judge. They also have to accurately reproduce what happened and here there is no agreement to what that was and the risk of the unpredictable is too high and the stakes are too high for it to happen.

Since a courtroom reenactment is out, how would a prosecutor disprove this part of Zimmerman’s story?

Behold! A teaching moment has appeared.

This was my answer earlier this morning.

The applicable evidentiary rule is Rule 702, which addresses the use of experts.

First, this is a matter where expert testimony would assist the jury to determine a fact in issue.

Second, you need one or or more experts qualified by education, training or experience to testify.

If I were BDLR, I would begin the search for an expert by contacting an expert in kinesiology, I also would check with a sports medicine specialist, someone who designs football and motorcycle helmets and a physical therapist.

Last, but not least, I would contact the reigning MMA World Champion.

This is how lawyers think creatively.

I have previously discussed Rule 702 in, Zimmerman: How Will the Defense Deal with the Terrified Scream?

Rule 702 provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based on sufficient facts or data,

(2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

As I said in my comment, I don’t believe there is any question that expert testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.

The disputed fact, of course, is whether Martin slammed Zimmerman’s head into the concrete as Zimmerman claimed.

The answer, which we believe to be “No,” will help determine if the incident Zimmerman claimed to have happened did, in fact, happen. The answer is important to the outcome of the case because Zimmerman’s claim of self-defense depends on it.

We have been focusing on Zimmerman’s minor injuries and the absence of Zimmerman’s DNA on the cuffs and sleeves of Martin’s sweatshirts and his fingernail clippings. The absence of Zimmerman’s DNA is inconsistent with his claim that Martin punched him repeatedly in the face bloodying his eyes and face.

I am relatively certain the State will present evidence from at least one medical expert, probably a trauma surgeon, who will testify that the injuries to his nose and the back of his head are not consistent with Zimmerman’s statement to a reasonable medical certainty.

I also am expecting the State will call the laboratory analyst who performed the DNA analysis and the analyst who examined the two sweatshirts and reported on the bullet holes that align with each other, but not the wound.

I do not know when enough is enough, but the State has the burden of disproving self-defense beyond a reasonable doubt. In the spirit of it’s better to be safe than sorry, the State should at least explore the possibility of presenting expert testimony to drive the final nail into the coffin and bury Zimmerman’s claim of self-defense forever.

I’m referring, of course, to Lonnie Starr’s stiff-neck hypothesis.

Wikipedia explains kinesiology:

Kinesiology, also known as human kinetics, is the scientific study of human movement. Kinesiology addresses physiological, mechanical, and psychological mechanisms. Applications of kinesiology to human health include: biomechanics and orthopedics, strength & conditioning, sport psychology, rehabilitation, such as physical and occupational therapy, as well as sport and exercise. Individuals who have earned degrees in kinesiology can work in research, the fitness industry, clinical settings, and in industrial environments. Studies of human and animal motion include measures from motion tracking systems, electrophysiology of muscle and brain activity, various methods for monitoring physiological function, and other behavioral and cognitive research techniques.

If I were prosecuting this case, I would begin my search for an expert to evaluate the stiff-neck hypothesis by contacting professors who teach kinesiology in nearby universities. If the theory proves to be promising, I would locate the most respected authority in the country on the subject and see what he or she thinks about it.

I also would contact sports medicine specialists, physical therapists and companies that design and manufacture helmets for use by athletes and motorcycle riders.

For dramatic effect, because juries like a good show with an occasional star, I would contact the reigning MMA world champion and see if I could fit him in as a witness regarding the fighting style, straddling, and strategy. I think he would laugh at the absurdity of Zimmerman’s description of what happened.

If I could get the jury to laugh at Zimmerman’s story, I would know that I had won the case and what better way to accomplish that than by using the world champion to do it.

Out of that mix of experts, I should be able to determine if the theory has any validity and if so, I would select 1-3 experts and endorse them as witnesses for the state.

I would work with them to come up with some demonstrative exhibits to use in court to illustrate their testimony.

Lawyers typically rely on their paralegals to work with the experts in developing those exhibits and arranging for payment, travel and hotel accommodations.

Frankly, it is not possible to overestimate the importance and value of a knowledgeable and experienced paralegal to a litigation team.

I hope this article provides a better understanding of the process of Rule 702 as well as the selection and use of experts at trial.

Caricature by DonkeyHotey licensed under Creative Commons