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.