Excluded Evidence in a Civil Trial [Zimmerman case]

According to George Zimmerman’s brother:

Is this claim correct?

I don’t necessarily know if there’s a GQ answer to this question. I don’t practice in Florida, but generally in civil cases there’s a much more lenient discovery process, which means that Zimmerman’s attorney could probably ask all sorts of questions in depositions and document requests and so forth.

Whether it would come in at trial? I don’t know. In order to be admissible, evidence usually has to be relevant and not unfairly prejudicial. Evidence of prior, unrelated bad acts is usually limited in scope and in time, as well. I am actually not all that familiar with the particulars of this case, but let’s say that Zimmerman’s attorney wanted to get in some evidence of Martin’s alleged propensity for fighting. He or she could argue that’s relevant to whether or not Martin was violent and therefore whether Martin was likely to have started a fight with Zimmerman. Then the judge would have to make a ruling on it. The same for the rest of the evidence.

The flip side, of course, is that Zimmerman can be compelled to testify himself, and I’m sure the plaintiffs’ attorney would want to get in evidence of all of Zimmerman’s alleged prior bad acts. The judge would have to rule on that too.

Since there is an open-ended thread of federal criminal prosecution hanging over him, he can take the fifth and justify it.

The rules of evidence are the same, but more things might be considered relevant. Especially in the area of damages. Many negative things could arguably effect hypothetical Trayvon’s future earning potential.

He can take the Fifth if he wants to, but they can make him take it on the stand. And they can also argue to a jury that his answers would have been damaging to his defense, if he does.

… and the defense can point to DoJ’s threat of prosecution, show that DoJ have been threatening it for a while, under big pressure from the black community, that nothing came out of it, but that the threat is still there. And that’s why the defendant will not take the stand. If the defense spins it right, it would be quite beneficial to Zimmerman, show him as a victim of wrongful prosecution.

No it won’t. All that stuff will happen in pretrial motions or at least outside the presence of the jury. In any event, the problem with refusing to take the stand in a civil action is that the burden on the other party is much lower. If he doesn’t testify, the jury will effectively hear only one side of the story.

Not really. The jury is allowed to draw an adverse inference if Zimmerman takes the 5th, and Plaintiff might even get a jury instruction to that effect.

All the justice department has to do is say “there’s not enough to prosecute”, and give him immunity from criminal prosecution (since they don’t find a very compelling case anyway) and presto, no fifth?

This is the question - can the Zimmerman defence successfully show that Trayvon was a homicidal thug, as he alleges? I assume the Martin side would simply put his fellow combatants on the stand to show nobody ended up with a broken nose or similar injuries. And none of them had or pulled any weapons whatsoever in those fights, from what dirt the other side has been able to scrape up. If we could get a “get of jail free” card for every victim that had a school-yard fight or got suspended for it, there’s be a lot more Trayvons shot by Zimmermans… Spin it how you want, he was just another average teenager. They probably suspend students several times a month for fighting.

This is the million dollar question - what does a beefy police-shaped 40-yo white guy with a gun have to say or do to a black 17-year-old to start a major fistfight and such rage that he ends up on the ground and his nose punched in?

And if the defense explains why Zimmerman took the fifth (or if Zimmerman does), the jury is allowed to draw inferences from that as well.

How could the defense explain it? His lawyers can’t testify.

On a related note, I had a case in California once that was simply put on hold until the statute of limitations for the potential criminal case against the defendant ran out.

Zimmerman, on the stand, explaining why he’s taking the fifth. In detail.

There is no statute of limitations on federal “hate crime” resulting in death.

What’s the limitation on the defence’s summation speech?
(Although drawing further attention to his pleading the fifth may do as much damage as help).

I’d be surprised if the judge allowed that. I guess it could happen.

You can’t “explain why you’re taking the fifth.” Once he asserted his right to silence, the plaintiffs can no longer continue the line of questioning. If his own attorneys start asking him questions about it, he waives the assertion and it’s fair game again. What you suggest is akin to a defendant in a criminal trial taking the stand long enough to say “I didn’t do it” and then refusing to answer any other questions.

“Due to the threat of unwarranted criminal litigation from the federal authorities, my lawyers advise me not to testify.” I am sure his lawyers can come up with a better formulation that still clearly explains the situation.

At the time, Trayvon Martin was suspended from school. Rumors I heard was that it was his 3rd suspension, and that it was for ‘fighting’ (assaulting another student).

if this is true, it would seem that Zimmerman’s defense could argue that this is relevant, and shows a propensity for violence. Could they subpoena school records on this? Could they call teachers who observed the fights as witnesses?

Your middle paragraph sounds remarkably similar to the same issue as arose during the criminal trial. The question is does the “more lenient discovery practice” that you describe in your first paragraph mean that a judge is more inclined to rule identical evidence admissible in civil trials than in criminal trials? Or were you just referring to “depositions and document requests and so forth”, but in terms of actual admissibility it’s the same with criminal as with civil?

[I don’t understand why there should be a different standard in a criminal trial versus a civil one. I could understand it if it was a matter of bending over backwards to protect a potentially innocent criminal defendent, but in this case GZ was facing 30 years in jail and couldn’t introduce some evidence in his defense. So I don’t see why he should have more leeway when it’s just money at stake.]

Just because “they” probably suspend several students a month for fighting doesn’t mean that being suspended for fighting is typical for an “average teenager”. There are quite a lot of teenagers out there and the several who get suspended for fighting are probably not average, on the whole. That doesn’t mean they’re all homocidal maniacs either, but certainly more violent than average, on the whole.

On another note, it’s not clear - to me, at least - that we know the extent of Trayvon’s activities in this regard. There has been much discussion of the excluded texts which discussed fighting, but my impression is that Trayvon’s school records are sealed - or at least they’ve certainly not been released to the public. If these are fair game in a civil trial, then there might be a lot more fodder for the Zimmerman team to work with than what we know of at this point.

The defense doesn’t get to explain why Zimmerman isn’t testifying. Counsel doesn’t get to go in front of the jury box and, as you’d have it, effectively testify on Zimmerman’s behalf (and not even submit this proxy testimony to cross). If you try to explain it, however briefly, on the stand, you’ve waived it. If you assert the Fifth, you assert the Fifth. That’s it, no preamble. Try to be cute and work a little preamble in there, and you have irrevocably waived the protection. Be guided accordingly.

You get to make a choice (testify or not) and abide by the consequences of your choice (get your side of the story out but also submit to cross vs. not undergo cross but the jury is permitted to draw an adverse inference).

Since everything associated with the Zimmerman case is bound to generate debate, let’s move this to GD. Title edited to indicate subject.

General Questions Moderator