No, absolutely not. The rule is not “The declarant is dead and these are the last words anyone heard him say.”
The dying declaration exception requires that the declarant (Treyvon) made the statement under a belief of certain or impending death, and that the statement concerns the causes or circumstances of that impending death.
There’s simply not enough evidence (at present) to support either requirement.
The problem is that that the US Constitution says:
The portion in red is known as the Confrontation Clause. Any attempt to say, “We need to hear from Treyvon Martin, even though he isn’t around to testify for himself,” runs squarely against the concept that the accused is entitled to confront the witnesses against him.
Over the years, the body of caselaw and evidence codes have pretty well solidified the ways in which an out of court statement can be used in evidence. There is some wriggle room, but (popular rhetoric aside) in a criminal trial of Zimmerman, Treyvon Martin has no “right” to be heard in the same way Zimmerman has a right to confront.
And a broken nose and mutiple brusing. The EMT(s) will be examined and cross examined. There will be the EMT’s written report and the EMT’s testimony. One cut? Two cuts? Multiple cuts? Multiple bruises? Broken nose?
The jury will get the impression that Zimmerman was being beaten.
The jury will get the impression that Zimmerman was in a scuffle. Witnesses will report an ‘argument’ or ‘scuffle’ or ‘wrestling’ lasting some 50 feet south from the sidewalk T. Witnesses will see there was a tree right smack in the middle of said scuffle.
Jury will get the impression that Zimmerman’s injuries are pretty much consistent with a scuffle of that nature, and are hardly consistent with an account of ‘repeated blows to the face’ and ‘head repeatedly slammed into a cement sidewalk’.
In self-defense cases in Florida, if the evidence leaves room for two or more inferences of fact, and at least one of those inferences is consistent with the defendant’s hypothesis of innocence, the case is not legally sufficient for guilt and the jury cannot legally find guilt.
The jury can “get impressions.” But to convict, the evidence in front of them must be more than simply favoring one interpretation over the other. Even “this is way more likely than that” is not legally sufficient for a jury to find guilt.
To find guilt, a jury must find that each and every element of the crime is proved beyond a reasonable doubt. The evidence must not leave room for two or more reasonable inferences of fact if one of them is consistent with the defendant’s hypothesis of innocence.
Perhaps it might be more realistic to discuss the evidence with those goalposts in mind. “He probably is guilty,” is not enough. “He’s way more likely guilty than not guilty,” is not enough. The jury has to get to the point where the only reasonable inferences to be drawn are of guilt, period.
I know that as a society we lean towards 'better the guilty go free than innocent go to prison, but…Honestly, it’s amazing any trial actually ends up with a guilty verdict.
Well, not every trial happens in a state in which self-defense is treated quite this way.
“Classic” self-defense is an affirmative defense. The jury is told that the accused must prove self-defense by “preponderance of the evidence.” In other words, the burden of proof rests with the accused: he has to convince the jury that his self-defense story is true. (He only has to do so by preponderance of the evidence, which is basically a “more likely than not” standard, but the point is: he carries the burden.)
In Florida, all he has to do is make a bare, prima facie case – present some scintilla of evidence – and then the burden shifts to the state to disprove it.
And of course the facts of the case are a bit thin, since we don’t have witnesses to the altercation.
But it’s true: it is hard to get to a guilty verdict. As it should be. The state gets to use its awesome power to lock you up, put you behind bars for years. The burden should be high, shouldn’t it?
All **Bricker **did was explain what “beyond reasonable doubt” means. Do you think that people should be jailed for decades if reasonable doubt exists?
I should add that I add that link without comment. I vouch neither for the accuracy of the transcript nor for the theories advanced by the blog on which the transcript resides.
[RIGHT]Underlined=CMC[/RIGHT]Zimmerman’s doctor ¶ if called will testify that Z only had two small, minor, cuts on the back of his head. No bruises, no scrapes, no crush damage to the scalp, nothing consistent with having your skull bounced on a concrete sidewalk.
CMC fnord!
I’m way to smart to think that Zimmerman’s doctor ¶ saying that black eyes are a typical result of being punched in the nose is going to stop anyone from posting “he had two black eyes” as if that proved something. It doesn’t.
I got two black eyes once . . . from violently coughing.
Yes, I get that this is your opinion, but it’s an opinion that doesn’t find a ready analogue in the law. Zimmerman does not have, under the criminal law, an extra duty of care because he was the one with the gun.
This part introduces that pesky “reasonable” word. Reasonable people will tend to disagree on what’s “reasonable” and what isn’t.
But as I’ve stated previously, I’m fully prepared for him to walk, and I actually anticipate that outcome more than I do a conviction of manslaughter or greater. I just hope that, at a minimum, the “immunity from arrest” and “burden of proof” aspects of the SYG laws are amended to be more reasonable as a result of the circumstances of this case.
I came across this blog posting that was linked to another message board I visit. According to the “about” page, the author is a former criminal defense attorney and law professor.
I seized upon the same oddness when Zimmerman reenacted the shooting. In the video, it’s clear that he fully extends his arm out in front of him. If Martin was on top of him, leaning over him due to his arm being pinned by Zimmerman, there is no way his arm could have been straight when he fired that gun into his chest.
The author also echoes my concern over the front to back trajectory of that bullet.